EXHIBIT 10.1
DATE APRIL 6, 1998
(1) XXXXX XXXXXXXX AND OTHERS
- and -
(2) XXXXXXXX CASTING UK LTD
- and -
(3) XXXXXXXX CASTING CORPORATION
________________________________________
SHARE EXCHANGE AGREEMENT
in respect of ordinary shares of 1p each in
Sheffield Forgemasters Group Limited
AND
SHAREHOLDERS AGREEMENT
RE
XXXXXXXX CASTING UK LTD
________________________________________
CONTENTS
1. INTERPRETATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. CONDITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. SALE OF THE SALE SHARES AND INTERIM PERIOD. . . . . . . . . . . . . . . . . 2
4. CONSIDERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. COMPLETION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6. WARRANTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7. OPTION ARRANGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
8. OBLIGATION ARRANGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9. LETTER OF CREDIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
10. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
11. CHOICE OF LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SCHEDULE 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
THIS AGREEMENT is made on April 6, 1998
BETWEEN:
(1) THOSE PERSONS whose names are set out in Schedule 1 (the "Sellers");
(2) XXXXXXXX CASTING UK LTD (company number 3514183) whose registered office is
at Kings Court, 00 Xxxx Xxxxxx, Xxxxx XX0 0XX (ACUK); and
(3) ATCHISON CASTING CORPORATION whose registered office is at 000 Xxxxx Xxxxxx
Xxxxxx, PO Box 188, Atchison, Kansas, 66002-0188 ("ACC").
IT IS AGREED as follows:
1. INTERPRETATION
1.1. In this agreement and the schedules:
"COMPLETION" means completion of the sale and purchase of the
Sale Shares in accordance with clause 5 of this agreement;
"'B' ORDINARY SHARES" means 1,040,000 new "B" ordinary shares of
25 xxxxx each in the capital of ACUK credited as fully paid up
and issued at a premium of 27.78311 xxxxx per share ranking
pari passu in all respects with the existing issued "A" ordinary
shares of 25 xxxxx each in the capital of ACUK (save as provided
in the New Articles);
"DEED OF WARRANTY AND UNDERTAKING" means the deed of warranty and
undertaking to be entered into later today in the form annexed
between (1) Xxxxxxx Xxxxxxxx Xxxxxx and others and (2) the
Purchaser;
"INITIAL CONSIDERATION" means the allotment and issue by ACUK to
the Sellers of the 'B' Ordinary Shares pursuant to Clause 4.1.1;
"NEW ARTICLES" means the new articles of association in the form
annexed and, for the purpose of identification, initialled by or
on behalf of the parties hereto;
"SALE SHARES" means 1,267,477 ordinary shares of 1p each fully
paid in the capital of SFGL.
1
1.2. Words and expressions defined in the Deed of Warranty and
Undertaking shall have the same meanings when used in this
agreement.
1.3. Any headings are inserted for convenience only and shall not
affect the construction of this agreement.
1.4. The Schedules form part of this agreement.
2. CONDITIONS
2.1. Completion of this agreement is conditional upon the Offer
becoming or being declared unconditional in all respects on or
before April 30 1998 and ACUK having been registered as the
holder of at least 50% of all the issued shares of SFGL.
2.2. If the conditions set out in clause 2.1 are not satisfied on or
before April 30 1998 this agreement shall cease to be of effect
and the obligations of the parties to it shall cease and
determine without liability on any party (save for any antecedent
breach by a party of its obligations).
2.3. ACUK shall use its reasonable endeavours to satisfy the
conditions set out in clause 2.1 on or before April 30, 1998 and
without limitation, shall seek to procure the stamping and the
registration of any shares assented to the Offer promptly upon
the Offer becoming or being declared unconditional in all
respects.
3. SALE OF THE SALE SHARES AND INTERIM PERIOD
3.1. Each of the Sellers with full title guarantee shall sell that
number of Sale Shares set against his or her name in Schedule 1
to ACUK free from all liens, charges and encumbrances and with
all rights now attached thereto and ACUK shall roll over the
Sale Shares upon the terms of this agreement.
3.2. Until the earlier of the sale of the Sale Shares pursuant to
this agreement and cessation of this agreement pursuant to
clause 2.2, each of the Sellers agrees with ACUK that he or she
will not without the prior written consent of ACUK:
3.2.1. dispose of any interest in such Sale Shares or any rights
attaching to them or agree to do any of these things;
3.2.2. exercise any voting or other rights attached to such Sale
Shares.
2
3.3. Until the earlier of the allotment of the 'B' Ordinary Shares
pursuant to this agreement and cessation of this agreement
pursuant to clause 2.2, ACUK agrees with each of the Sellers
that it will not:
3.3.1. amend its articles of association;
3.3.2. issue any shares or loan capital convertible into shares
or agree to do so or grant any option to subscribe for
such shares or loan capital;
3.3.3. enter into any transactions other than those which are
reasonably required to make or implement the Offer.
4. CONSIDERATION
4.1. The consideration for the sale of the Sale Shares shall be:
4.1.1. the allotment and issue by ACUK to the Sellers of the 'B'
Ordinary Shares in the numbers set out in Schedule 1, and
4.1.2. for each Sale Share the payment by way of additional
consideration of the same amount per Sale Share as will
be paid to each of the SFG Shareholders in accordance
with the provisions of the Offer Document.
4.2. The consideration referred to in clause 4.1 shall be satisfied
and paid as follows:
4.2.1. as to the Initial Consideration, on Completion;
4.2.2. as to the additional consideration referred to in
clause 4.1.2, no later than the last date on which the
Additional Consideration (as defined in the Offer
Document) is payable pursuant to the provisions of the
Offer Document.
5. COMPLETION
Completion of the sale and purchase of the Sale Shares shall take place
immediately following satisfaction of the conditions contained in
clause 2.1 when:
5.1. each Seller shall deliver or procure to be delivered to ACUK a
transfer in respect of his or her Sale Shares duly completed in
favour of ACUK (or as it may direct) together with his or her
share certificate(s);
5.2. ACUK shall adopt the New Articles;
3
5.3. thereupon ACUK shall satisfy the Initial Consideration by the
allotment of the 'B' Ordinary Shares to the Sellers in the
numbers set out in Schedule 1, enter their names on the register
of members in respect of such 'B' Ordinary Shares, and deliver to
the Sellers share certificates for such shares in their
respective names.
6. WARRANTIES
6.1. Each Seller warrants and undertakes that the number of Sale
Shares set against his or her name in Schedule 1 are both legally
and beneficially owned by him or her and neither the whole nor
any part of his or her interest in those Sale Shares is subject
to any Encumbrance and that he or she is able and entitled to
agree to sell and to sell those Sale Shares pursuant to this
agreement and to transfer those Sale Shares with full title
guarantee free from all Encumbrances and together with all rights
attaching to those Sale Shares, including the right to all
dividends and other distributions (if any) declared, made or
paid after the date on which the Offer becomes or is declared
unconditional in all respects and otherwise perform his or her
obligations under this agreement.
6.2. ACUK warrants, represents and covenants to each of the Sellers
that:
6.2.1. immediately following the allotment of the 'B' Ordinary
Shares the authorised and issued share capital of ACUK
will be as set out in Appendix 'A';
6.2.2. the rights attaching to the 'B' Ordinary Shares are as set
out in the New Articles;
6.2.3. save for this agreement no agreements or arrangements are
in place which accord to any third party the right to call
for the issue or allotment of any shares in ACUK or any
loan capital convertible into shares of ACUK.
7. OPTION ARRANGEMENTS
7.1. In this clause 7, words and expressions shall, save where the
context otherwise requires, have the meanings given to them in
Schedule 2.
7.2. ACUK shall, upon the Date of Xxxxx, xxxxx an option ("the
Option") to each of the Sellers over such number of
'C' Ordinary Shares as is set opposite such Seller's name in
Schedule 1 upon and subject to the terms set out in Schedule 2.
For the avoidance of doubt, if the conditions set out in
clause 2.1 of this agreement are not satisfied on
4
or before April 30, 1998 then ACUK shall be released from any
obligation to grant any Option hereunder.
8. OBLIGATION ARRANGEMENTS
With effect from Completion the provisions of Schedule 3 shall apply to
impose certain obligations upon ACC and ACUK.
9. LETTER OF CREDIT
The Sellers hereby direct ACC to make payment of any additional
consideration due to them in accordance with clause 4.1.2 hereof to
DLA Nominees Limited on their behalf.
10. MISCELLANEOUS
10.1. No variation of this agreement shall be effective unless made in
writing and signed by or on behalf of the parties in this
agreement and no waiver of any term, provision or condition of
this agreement shall be effective except to the extent made in
writing and signed by the waiving party.
10.2. The provisions of this agreement shall continue in full force and
effect notwithstanding Completion.
10.3. This agreement may be executed in any number of counterparts by
the different parties or separate counterparts, each of which
when executed and delivered shall constitute an original but all
of which shall together constitute one and the same instrument.
10.4. No failure or delay in exercising or enforcing any right or
remedy under this agreement shall constitute a waiver of such
right or remedy and no single or partial exercise or enforcement
of any right or remedy under this agreement shall preclude or
restrict the further exercise or enforcement of any such right
or remedy. The rights and remedies provided in this agreement
are cumulative and not exclusive of any rights and remedies
provided by law.
5
11. CHOICE OF LAW
This agreement shall be governed by and construed in accordance with
English Law and the parties irrevocably agree that the English Courts
shall have exclusive jurisdiction to settle any dispute which may arise
out of or in connection with this agreement and that accordingly any
proceedings, suit or action arising out of this agreement shall be brought
in such courts.
IN WITNESS of which this agreement has been entered into the day and year
first above written.
6
SCHEDULE 1
NAME OF SELLER NUMBER OF NUMBER OF 'B' NUMBER OF "C" ORDINARY SHARES OF
SALE SHARES TO ORDINARY SHARES 1 XXXXX EACH OVER WHICH OPTIONS
BE SOLD TO BE RECEIVED ARE GRANTED
Xxxxx Xxxxxxxx 804,360 660,000 660,000
Xxxxxxx Xxxxxx Innocent 20,863 17,119 17,119
Xxxxxxx Xxxx Innocent 6,434 5,278 5,278
Xxxxxx Xxxx Innocent 42,900 35,201 35,201
Xxxxxxx Xxxxxxx Innocent 19,185 15,742 15,742
Xxxxxx Xxxxxxxx 21,735 17,835 17,835
Xxxxxx Xxxxxxxx 21,735 17,834 17,834
Xxxxx Xxxxxxx 38,062 31,231 31,231
Xxxxx Xxxxxxx 51,320 42,109 42,109
Xxxxx Xxxxxx Xxxxx 17,710 14,532 14,532
Xxx Xxxxx 18,515 15,192 15,192
Xxxxxx Xxxxx 18,515 15,192 15,192
Xxxxxxx Xxxx Xxxxx 18,515 15,192 15,192
Xxxxx Xxxxxxx 3,455 2,837 2,837
Xxxxx Xxxxxx Carless 28,020 22,990 22,990
Xxxxxx Xxxxxx Xxxxxxx 28,020 22,990 22,990
Xxxxxxx Xxxxxxxx Xxxxxxx 29,887 24,523 24,523
Xxxxxx Xxxxxx Xxxxxxx 39,123 32,101 32,101
Xxx Xxxxx Xxxxxxx 39,123 32,102 32,102
--------- --------- ---------
TOTALS 1,267,477 1,040,000 1,040,000
7
SCHEDULE 2
Terms Applicable to Options
1. INTERPRETATION
1.1 In this Schedule (unless the context otherwise requires):
THE "AUDITORS"means the auditors for the time being of ACUK (acting as
experts and not as arbitrators);
THE "BOARD" means the board of directors for the time being of ACUK;
"CONTROL" has the meaning given to it by Section 840 ICTA and
"CONTROLLED" shall have a similar meaning;
"DATE OF GRANT" means the date on which an Option is to be granted being
the date upon which the conditions specified in clause 2.1 of this
agreement are satisfied;
"FLOTATION" means the admission of the shares of ACUK or of the ordinary
shares of SFGL to the Daily Official List of the London Stock Exchange
or the granting of permission for the Shares or the ordinary shares of
Sheffield Forgemasters Group Limited to be dealt in on the Alternative
Investment Market or any other recognised investment exchange (as
defined in Section 207 Financial Services Act 1986);
THE "GROUP" means ACUK and any other company which is for the time being
Controlled directly or indirectly by ACUK or which directly or
indirectly Controls ACUK;
"ICTA" means The Income and Corporation Taxes Xxx 0000;
"MEMBER OF THE GROUP" means ACUK or any such other company as mentioned in
the definition of "Group";
"OPTION" means a right to acquire 'C' Ordinary Shares granted pursuant to
Clause 7 of this share exchange agreement
"OPTION EXERCISE PERIOD" means the period commencing on the Date of Grant
of the Option and ending on the date which is one day before the
tenth anniversary of the Date of Grant;
8
"OPTION HOLDER" means a Seller who holds an Option or (where the context
admits) his personal representatives;
"QUALIFYING EMPLOYEE" means a director or employee of a Member or Members
of the Group who has not given notice or received notice of
termination of his employment and is a party to this agreement;
"SALE" means the occurrence of any of the circumstances set out in
paragraphs 5.3.1, 5.3.2 and 5.3.3;
"SCHEDULE 9" means Schedule 9 to ICTA;
"SHARE" means a fully paid "C" Ordinary share of 1 xxxxx of ACUK;
1.2 References in this Schedule to paragraphs are to paragraphs of this
Schedule.
2. GRANT OF OPTIONS
2.1 There shall be no monetary consideration for the grant of any Option
and accordingly all Options shall be granted by way of deed in the
form of the Option Certificate attached as appendix 1 to this
agreement.
2.2 Except as may be agreed by ACUK each Option shall be exercisable only
by the Qualifying Employee to whom it is granted and may not be
transferred, assigned or charged.
3. EXERCISE OF OPTIONS
3.1 Subject to paragraphs 3.2, 4 and 5 each Option shall be exercisable
as to one fifth of the Shares in respect of which it is granted
(rounded to the nearest whole number) on or after each of the first,
second, third, fourth or fifth anniversary of Completion provided the
Seller to whom such option was granted is or was a Qualifying Employee
on such anniversary.
3.2 Notwithstanding anything else in this Agreement no Option may be
exercised after the expiry of the Option Exercise Period.
3.3 The price payable by way of the option exercise price shall be 1 xxxxx
per share or as amended by an increase in the share capital pursuant
to paragraph 6 of this Schedule.
9
3.4 Options shall be exercised by lodging with the Company Secretary of
ACUK, or such other person as ACUK may specify, the relevant Option
Certificate and a duly completed notice of exercise in such form as
ACUK may from time to time prescribe in respect of such number of
Shares as the Option Holder shall specify on the notice of exercise
and accompanied by payment for the acquisition of the Shares.
3.5 An Option or part thereof which shall not have been exercised by the
expiration of the Option Exercise Period shall automatically lapse.
3.6 Result of Exercise of Options
3.6.1 Subject to receipt by ACUK of the appropriate payment by way
of subscription in full in cleared funds, within 30 days of
receipt by ACUK of the notice of exercise the Board on
behalf of ACUK shall allot or procure the transfer to the
Option Holder of the number of Shares in respect of which
the Option has been exercised.
3.6.2 All Shares allotted on exercise of Options shall rank for
any dividends or other distributions the record date for
which falls after the date on which the Option was
exercised.
3.6.3 ACUK shall at all times keep available sufficient unissued
Shares or shall procure that sufficient Shares are
available to satisfy the exercise of all Options taking
account of any other obligations of ACUK to issue unissued
Shares.
4. CESSATION OF EMPLOYMENT
4.1 Subject to paragraph 3.2, if an Option Holder ceases to be a
Qualifying Employee for any reason or gives notice or is given notice
of termination of his employment before the fifth anniversary of
Completion any Option which is already exercisable pursuant to
paragraph 3.1 may be exercised within six weeks of such event and
thereafter shall lapse. Any Option which is not already exercisable
and which does not become exercisable as aforesaid shall automatically
lapse on cessation of employment or on the giving or receiving of
notice of termination of employment.
4.2 An Option Holder shall not be treated for the purposes of this
Schedule as ceasing to be a Qualifying Employee until such time
as (i) he is no longer a director or
10
employee of any Member of the Group or (ii) he gives notice or
receives notice of termination of his employment.
5. FLOTATION OR SALE OF COMPANY
5.1 Subject to paragraph 3.2 but notwithstanding paragraph 3.1 an Option
which has not lapsed may be exercised on a Flotation in accordance
with Paragraph 5.2. Any Option not so exercised shall remain
exercisable following Flotation subject always to Paragraph 3.2.
5.2
5.2.1 As soon as ACUK has become aware that firm negotiations have
been entered into or firm proposals have been made for the
Flotation of ACUK or Sheffield Forgemasters Group Limited,
ACUK the Company shall notify the Option Holders in writing
that such negotiations or proposals have been entered into or
made;
5.2.2 Within one week of the notification by ACUK to the Option
Holders as set out in Paragraph 5.2.1 an Option Holder may
exercise an Option;
5.2.3 The exercise of any Option under Paragraph 5.2.2 shall be
conditional upon Completion of the Flotation (and for the
purposes of this Paragraph 7 "completion" or "completed" in
relation to Flotation shall be the admission or granting of
permission referred to in the definition of "Flotation" in
Paragraph 1) ("the Date of Flotation"). In the event that the
Flotation does not proceed the notice of exercise shall be
deemed never to have been served;
5.2.4 The number of Shares to be issued pursuant to the exercise of
Options shall be issued forthwith on the Date of Flotation and
shall form part of the issued equity share capital of ACUK
immediately prior to the Date of Flotation.
5.3 If:
5.3.1 any person or group of persons acting in concert obtains
Control of ACUK pursuant to an offer to acquire the whole of
the issued share capital of ACUK then the Board shall serve
notice upon each Option Holder (or his personal
representatives) notifying him of such fact and an Option
Holder (or his personal representatives) may at any time
within the Appropriate Period
11
defined in Paragraph 5.4 below subject always to Paragraph 3.2
exercise any Option or part thereof which has not lapsed. Any
Option which is not so exercised shall lapse at the expiry of
the Appropriate Period defined in Paragraph 5.4 below. In the
case of an Option exercised by virtue of Paragraph 5.3.1, the
exercise shall be conditional upon completion of the sale of
the shares of the relevant company to the person or group of
persons making the offer (such that the person or group of
persons obtain control of such company) and if such completion
does not occur
5.3.1.1 any notice of exercise of any Option served in
accordance with this Paragraph 5.3 shall be deemed
never to have been served; and
5.3.1.2 any other Option which would have lapsed under this
Paragraph 5.3 by reason of the failure of the
Option Holder to exercise the Option within the
Appropriate Period as defined in Paragraph 5.4 below
shall not lapse but shall remain exercisable in
accordance with the Rules of the Scheme.
5.4 In this Paragraph 5 the "Appropriate Period" means:
5.4.1 in a case falling within Paragraph 5.3.1 and where Paragraph
5.3.2 does not apply, the period beginning with the time when
the Board has given notice to the Option Holder of the offer
and ending on the expiry of 14 days of receiving such notice
or (if earlier) immediately prior to completion of the sale of
the shares in question;
5.5 If a company (in this Paragraph called the "Acquiring Company") has
acquired Control of ACUK as result of any of the events described in
Paragraphs 5.3.1 or 5.3.3, or become entitled or bound as mentioned in
Paragraph 5.3.2, the Option Holder may by agreement with the Acquiring
Company at any time within the Appropriate Period release his rights
under the Scheme in consideration of the grant to him of rights which
relate to shares in the Acquiring Company (or some other company which
in relation to the Acquiring Company falls within paragraph (b) or
paragraph (c) of paragraph 10 of Schedule 9).
12
5.6 In the event of a change of Control of Sheffield Forgemasters Group
Limited the Board, may in its discretion permit the exercise of any
Option which is not already exercisable in accordance with clause 3.1.
6. VARIATION OF SHARE CAPITAL
6.1 Subject to Paragraph 6.3 and 6.4 below, in the event of any increase
or variation of the share capital of ACUK (whenever effected) by way
of capitalisation or rights issue, or sub-division, consolidation or
reduction, the Board shall make such adjustments as are fair and
reasonable under Paragraph 6.2
6.2 An adjustment made under this Paragraph shall be to one or more of
the following:
6.2.1 the number of Shares in respect of which any Option may be
exercised and the date(s) upon which such Option may be
exercised;
6.2.2 the price at which shares may be acquired by the exercise of
any such Option;
6.2.3 where any such Option has been exercised but no Shares have
been allotted or transferred pursuant to such exercise, the
number of shares which may be so allotted or transferred and
the price at which they may be acquired.
6.3 Except in the case of a capitalisation issue, no adjustment under
Paragraph 6.2 above shall be made without the prior confirmation in
writing by the Auditors to the directors that it is in their opinion
fair and reasonable.
6.4 No adjustment under Paragraph 6.2 above shall be made as a result of
which the aggregate amount payable on the exercise of an Option in
full would be increased.
6.5 As soon as reasonably practicable after making any adjustment under
Paragraph 5.2 above, the Board shall give notice in writing thereof
to each Option Holder.
7. FURTHER OPTION
7.1 In the event that an offer to subscribe for new shares in ACUK is made
to the holders of 'B' Ordinary Shares of 25 xxxxx each or 'C' Ordinary
Shares of 1 xxxxx each, in accordance with Article 6 of the New
Articles ACUK shall grant to each Qualifying Employee who or whose
Privileged Relations or Family Trust subscribe for such new
13
shares an Option to acquire such number of 'C' Ordinary Shares of
1 xxxxx each as is equal to the number of new shares for which such
Qualifying Employee (or his Privileged Relations or Family Trust) have
subscribed pursuant to Article 6 of the New Articles. The exercise
price of such Option shall be such price as is determined by the Board
to be a fair price to avoid an unfair dilution of the value of the
Options which are substituting at that time.
7.2 In the event that an offer to subscribe for new shares is made as
detailed in clause 7.1 above, then the price payable by way of the
option exercise price in relation to the Options not then exercised
shall be amended (if necessary) by the Board to reflect the new share
capital of ACUK.
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SCHEDULE 3
OBLIGATION PROVISIONS
1. INTERPRETATION
1.1 In this Schedule 3 (unless the context otherwise requires):
"ARTICLES" means the articles of association of the Company in force at the
date hereof;
"NET ASSET VALUE" means:
1.1.1 in relation to the ACC Shares the net asset value of each ACC Share
determined by dividing the amount for net asset value of ACC shown
in the management accounts of ACC for the month ended immediately
prior to the date of the service of the notice under clause 2.1
of this Schedule 3, (which management accounts have been approved
by the board of directors of ACC) by the number of ACC Shares in
issue; and
1.1.2 in relation to the 'B' Ordinary Shares of 25 xxxxx each or the
'C' Ordinary Shares of 1 xxxxx each (in each case in ACUK) the net
asset value of each 'B' Ordinary Share of 25 xxxxx each of
'C' Ordinary Share of 1 xxxxx each (in each case in ACUK)
determined by dividing the amount for net asset value of ACUK shown
in the management accounts of ACUK for the month ended immediately
prior to the date of service of the notice under clause 3.1 of this
Schedule 3, (which management accounts have been approved by the
board of directors of ACUK) by the number of issued shares (of
whatever class) of ACUK;
"ACC SHARES" means common stock of ACC;
"AUDITORS" means the auditors of the Company from time to time;
"COMPLETION" means the performance by the relevant Seller and ACC and ACUK
(as the case may be) of the obligations assumed by them
respectively under clause 4 of this Schedule 3;
"FAMILY MEMBER" means
(1) if the Seller is Xxxxx Innocent, each of
Xxxxxxx Xxxx Innocent, Xxxxxx Xxxx
15
Innocent and Xxxxxxx Xxxxxxx Innocent;
(2) if the Seller is Xxxxxx Xxxxxxxx,
Xxxxxx Xxxxxxxx;
(3) if the Seller is Xxxxx Xxxxxxx, Xxxxx Xxxxxxx;
(4) if the Seller is Xxxxx Xxxxx, each of
Xxx Xxxxx, Xxxxxx Xxxxx and Xxxxxxx Xxxx Xxxxx;
(5) if the Seller is Xxxxx Xxxxxxx, each
of Xxxxx Xxxxxx Xxxxxxx, Xxxxxx Xxxxxx Xxxxxxx
and Xxxxxxx Xxxxxxxx Xxxxxxx, and
(6) if the Seller is Xxxxxxx Xxxxxxx, Xxx Xxxxx
Xxxxxxx;
"OBLIGATION SHARES" means the shares which ACC or ACUK (as the case may
be) are obliged to acquire in accordance with clauses 2.1 and/or 3.1 of
this Schedule 3 (as the case may be);
"OPTIONS" shall have the same meaning herein as in Schedule 2;
"PERMITTED TRANSFEREE" means a transferee permitted pursuant to the
provisions of Article 9 of the Articles;
1.2 References in the schedule are to paragraphs of this schedule.
2. FIRST OBLIGATION
2.1 In consideration of the payment by the Sellers to ACC of the aggregate
sum of L1 (receipt of which is hereby acknowledged), ACC hereby grants
to each of the Sellers the right, exercisable at any time during the
period commencing on the date which is 5 years from the date hereof
and expiring on the date which is 10 years from the date hereof, by
service of a written notice, to require ACC to exchange all of the
'B' Ordinary Shares of 25 xxxxx each and the 'C' Ordinary Shares of
1. xxxxx each (in each case in the capital of ACUK), which shares are,
on such date, registered in the name of the
16
relevant Seller and/or a Family Member and/or a Permitted Transferee
of such Seller and for such number of ACC Shares as in aggregate have
a Net Asset Value equal to 85 per cent of the Net Asset Value of the
aggregate of the 'B' Ordinary Shares of 25 xxxxx each and 'C' Ordinary
Shares of 1 xxxxx each the subject of the notice hereunder. On the
exercise of such right the Seller who has served such notice will
become bound to tender and ACC will become bound to exchange the
shares the subject of the notice. The shares tendered and received
shall be unencumbered.
2.2 If a Seller serves notice in accordance with clause 2.1 above, the
provisions of clause 4 will apply.
3. SECOND OBLIGATION
3.1 In consideration of the payment by the Sellers to ACC of the aggregate
sum of L1 (receipt of which is hereby acknowledged) each of ACC and
ACUK grants to each of the Sellers the right, (which each of the
Sellers hereby undertakes to exercise in accordance with this clause)
exercisable at any time during the period of 6 weeks following
the date on which the relevant Seller's employment with ACUK or ACC or
any subsidiary of either of them is terminated (for whatever reason
including death or disability) by service of a written notice, to
require ACUK or (if ACUK is for any reason unable to do so) ACC, to
purchase all of the 'B' Ordinary shares of 25 xxxxx each and
'C' ordinary Shares of 1 xxxxx each (in each case in the capital of
ACUK) which shares are on such date registered in the name of the
relevant Seller and/or a Family Member and/or a Permitted Transferee
of the relevant Seller. The consideration for such shares shall be
an amount equal to the Net Asset Value of each of such shares.
3.2 If a Seller serves notice in accordance with clause 3.1 the provisions
of clause 4 will apply.
3.3 If ACC or ACUK acquires "B" Ordinary Shares of 25 xxxxx each or
"C" Ordinary Shares of 1 xxxxx each in accordance with the obligations
contained in this clause 3, then it will from time to time make such
shares available to current and prospective employees of ACUK as
recommended by the board of directors of ACUK and approved by ACC.
4. COMPLETION
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4.1 Completion of the obligations contained in clauses 2.1 and/or 3.1
shall take place at the registered office of ACUK (or at such other
place as may be agreed) as soon as reasonably practicable, and in
any event in the case of the obligation contained in clause 2.1,
within 7 days of the day on which the number of ACC Shares is agreed
or (as the case may be), determined or, in the case of the
obligation contained in clause 3.1, within 7 days of the day on which
the Net Asset Value is agreed or determined Provided That in each
case, if such day is not a business day, then such completion shall
take place at 12 noon on the first business day after that.
4.2 On Completion, the relevant Seller shall:
4.2.1 transfer or procure the transfer of the Obligation Shares to
ACUK or ACC (as the case may be);
4.2.2 deliver all relevant share certificates and other documents of
title in respect of the Obligation Shares to ACUK or ACC (as
the case may be);
4.2.3 deliver to ACUK or ACC (as the case may be) any form of
consent or waiver required from the relevant Seller or (as
the case may be) any other member of ACUK, to enable the
transfer of his Obligation Shares to be registered;
4.2.4 do such things and execute such documents as shall be
reasonably necessary or as ACUK or ACC may reasonably
request to give effect to the sale of the shares in accordance
with the provisions of this Schedule.
4.3 Subject to the relevant Seller complying with its obligations under
clause 4.2, ACC shall, on Completion in the case of the obligation
contained in clause 2.1, allot the ACC Shares in accordance with such
clause to the relevant Seller and deliver to the relevant Seller share
certificates therefor in their respective names or, in the case of the
obligation contained in clause 3.1, pay or (in the case of a purchase
by ACUK) procure the payment by ACUK of an amount due in accordance
with the provisions of such clause to the relevant Seller by banker's
draft.
4.4 Any ACC Shares allotted pursuant to the provisions of clause 4.3, will
be unregistered and subject to Rule 144 of the Securities and Exchange
Commission of the United States of America. ACC hereby undertakes to
acquire up to 50 per cent of any ACC Shares acquired by a Seller
hereunder if so requested prior to such Shares
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becoming registered and only if necessary to enable such Seller to
pay tax in relation to such shares.
4.5 If any of the provisions of clauses 4.2 or 4.3 are not complied with
on the date fixed for Completion, the party not in default may
(without prejudice to his other rights and remedies):
4.5.1 defer Completion to a date not more than 28 days after such
date (and so that the provisions of this clause 4.4 shall
apply to Completion as so deferred);
4.5.2 proceed to Completion so far as practicable (without prejudice
to his rights under this agreement); or
4.5.3 rescind the contract of sale arising by virtue of the exercise
of the relevant obligation hereunder.
5. VARIATION OF SHARE CAPITAL
5.1 In the event of any increase or variation of the share capital of ACUK
(whenever effected) by way of capitalisation or rights issue, or
sub-division, consolidation or reduction the board of directors of
ACUK shall make such adjustments as are fair and reasonable.
5.2 Except in the case of a capitalisation issue, no adjustment under
clause 5.1 shall be made without the prior confirmation in writing
by the Auditors to the directors that it is in their opinion fair and
reasonable.
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6. SALE OF ACC
6.1 In the event of an offer being received for the entire issued share
capital of ACC, then in relation to any Options which have at the time
of sale of ACC become exercisable, and in relation to the 'B' Ordinary
Shares of 25 xxxxx in the capital of ACUK;
6.1.1 if the offer is made by a person ("the Purchaser") whose
shares or stock is listed on any stock exchange or investment
exchange, ACC shall procure that such Purchaser offers to
exchange all 'C' Ordinary Shares of 1 xxxxx each issued
pursuant to the exercise of such Options and the 'B' Ordinary
Shares of 25 xxxxx each for shares in such Purchaser such
exchange to be effected for the number of shares in the
Purchaser determined pursuant to clause 2.1 of this Schedule 3
save that references thereon to ACC Shares shall be deemed to
be references to shares in the Purchaser (such exchange to be
conditional upon but prior to completion of the sale of ACC);
6.1.2 in any case ACC shall offer to purchase all 'C' Ordinary
Shares of 1 xxxxx each issued pursuant to the exercise of such
Options and all 'B' Ordinary Shares of 25 xxxxx each at the
Net Asset Value of each such shares (such purchase to be
conditional upon but immediately prior to completion of the
sale of ACC)
6. DURATION OF OBLIGATIONS
A Seller shall not cease to be a party to this agreement until he ceases to own
any Obligation Shares and unless, (if he has purported to exercise the
options contained in either or both of clauses 2.1 or 3.1), he has
transferred such shares with good title.
7. ARTICLES
In the event of any conflict between the terms of this agreement and the
Articles, the terms of this agreement shall prevail.
8. NOTICES
Any notice required or permitted to be given under this agreement shall be in
writing and shall, in the case of a recipient being a company, be sent to
its registered office from time to time, and, in the case of a recipient
being an individual, be sent to his address set out in this agreement or
to such other address in England as he may designate by notice to the other
parties and to the
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Auditors in accordance with this clause. Any such notice shall be
delivered personally or sent in a pre-paid letter by the recorded delivery
service and shall be deemed to have been served if by personal delivery,
when delivered (if delivered before 5.00pm on Monday to Friday (bank
holidays excepted), failing which it shall be deemed to be served at
9.00am on the next business day) and if by recorded delivery, 48 hours
after posting.
SIGNED by in the presence of: )
SIGNED by XXXXX XXXXXXXX in the presence of: ) /s/ Xxxxx Xxxxxxxx
/s/ W A Xxxxxxxx )
W A Xxxxxxxx )
Dibb Xxxxxx Xxxxx )
SIGNED by XXXXXXX XXXXXX INNOCENT in the presence of:) /s/ K R Innocent
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx )
SIGNED by XXXXXXX XXXX INNOCENT in the presence of: ) /s/ K R Innocent
/s/ C Soothill ) As Attorney
C Soothill )
Xxxxxx Xxxxxx )
SIGNED by XXXXXX XXXX INNOCENT in the presence of: ) /s/ K R Innocent
/s/ C Soothill ) As Attorney
C Soothill )
Xxxxxx Xxxxxx )
SIGNED by XXXXXXX XXXXXXX INNOCENT in the presence ) /s/ K R Innocent
of: ) As Attorney
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
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SIGNED by XXXXXX XXXXXXXX in the presence ) /s/ X X Xxxxxxx
of: ) As Attorney
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
SIGNED by XXXXXX XXXXXXXX in the presence ) /s/ K R Innocent
of: ) As Attorney
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
SIGNED by XXXXX XXXXXXX in the presence ) /s/ X X Xxxxxxx
of: ) As Attorney
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
SIGNED by XXXXX XXXXXXX in the presence ) /s/ X X Xxxxxxx
of: ) As Attorney
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
SIGNED by XXXXXXX XXXXXX XXXXX in the presence ) /s/ X X Xxxxxxx
of: ) As Attorney
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
SIGNED by XXX XXXXX in the presence ) /s/ X X Xxxxxxx
of: ) As Attorney
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
SIGNED by XXXXXX XXXXX in the presence ) /s/ X X Xxxxxxx
of: ) As Attorney
/s/ C Soothill )
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C Soothill )
Xxxxxx Xxxxxx )
SIGNED by XXXXXXX XXXX XXXXX in the presence ) /s/ X X Xxxxxxx
of: ) As Attorney
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
SIGNED by XXXXX XXXXXXX in the presence ) /s/ X X Xxxxxxx
of: ) As Attorney
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
SIGNED by XXXXX XXXXXX CARLESS in the presence ) /s/ X X Xxxxxxx
of: ) As Attorney
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
SIGNED by XXXXXX XXXXXX XXXXXXX in the presence ) /s/ X X Xxxxxxx
of: ) As Attorney
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
SIGNED by XXXXXXX XXXXXXXX in the presence ) /s/ X X Xxxxxxx
of: ) As Attorney
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
SIGNED by XXXXXX XXXXXX XXXXXXX in the presence ) /s/ X X Xxxxxxx
of: ) As Attorney
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
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SIGNED by XXX XXXXX XXXXXXX in the presence ) /s/ X X Xxxxxxx
of: ) As Attorney
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
SIGNED by XXXX XXXXX for and on behalf ) /s/ Xxxx X Xxxxx
of XXXXXXXX CASTING UK LTD in the )
presence of: )
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
SIGNED by XXXX XXXXX for and on behalf ) /s/ Xxxx X Xxxxx
of XXXXXXXX CASTING CORPORATION in the )
presence of: )
/s/ C Soothill )
C Soothill )
Xxxxxx Xxxxxx
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