DATED 27TH DECEMBER, 1995
THE SELLERS NAMED IN SCHEDULE 1
AND
THE OPTIONHOLDERS NAMED IN SCHEDULE 1
AND
XXXXXXXXXX XXXXX XXXXX
AND
ALPHAREL, INC.
AGREEMENT
FOR THE SALE AND PURCHASE OF
ALL THE ISSUED SHARE CAPITAL
OF TRIMCO GROUP PLC
XXXXX & OVERY
LONDON
CONTENTS
CLAUSE PAGE
1. Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Sale and Purchase of the Shares . . . . . . . . . . . . . . . . . . . . 3
3. Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. Conditions Precedent. . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Purchaser's Common Stock. . . . . . . . . . . . . . . . . . . . . . . . 5
6. Completion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Insider Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8. Loan Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9. Guarantees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10. Protective Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . 9
11. Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
12. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
13. Resolutions and Waivers . . . . . . . . . . . . . . . . . . . . . . . .11
14. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
15. Whole Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
16. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
SCHEDULES
1. Particulars of the Sellers and the Optionholders. . . . . . . . . . . .14
2. Particulars of the Company. . . . . . . . . . . . . . . . . . . . . . .19
3. Particulars of the Subsidiaries . . . . . . . . . . . . . . . . . . . .20
4. City Code on Takeovers and Mergers. . . . . . . . . . . . . . . . . . .25
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THIS AGREEMENT is made on 27th December, 1995 BETWEEN:
(1) THE PERSONS whose names and addresses are set out in column A of Part A of
Schedule 1 (each a "Seller" and together the "Sellers");
(2) THE PERSONS whose names and addresses are set out in column A of Part B of
Schedule 1 (each an "Optionholder" and together the "Optionholders");
(3) XXXXXXXXXX XXXXX XXXXX whose address is 00 Xxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxxxx XX00 0XX ("Xxx Xxxxx"); and
(4) ALPHAREL, INC. whose principal place of business is at 0000 Xxxxxxx Xxxx
Xxxxx, Xxx Xxxxx, Xxxxxxxxxx, Xxxxxx Xxxxxx of America (the "Purchaser")
WHEREAS:
(A) Trimco Group plc ("Trimco") is a public company limited by shares short
particulars of which are set out in Schedule 2 having an authorised capital
of L600,000 and US$50 divided into 100,000 preference shares of L1 each,
50,000 of which have been issued fully paid or credited as fully paid
("Preference Shares"), 206,600 deferred 'A' ordinary shares of L1 each,
all of which have been issued fully paid or credited as fully paid
("Deferred 'A' Ordinary Shares"), 293,400 deferred ordinary shares of L1
each, 123,400 of which have been issued fully paid or credited as fully
paid ("Deferred Ordinary Shares"), 206,600 'A' ordinary shares of US$0.0001
each, all of which have been issued fully paid or credited as fully paid
("'A' Ordinary Shares") and 293,400 ordinary shares of US$0.0001 each,
123,400 of which have been issued fully paid or credited as fully paid
("Ordinary Shares").
(B) The Sellers are beneficially entitled to all the Shares (as defined in
clause 1).
(C) Trimco is the beneficial owner of the entire issued share capitals of all
the companies short details of which are set out in Schedule 3.
(D) The Sellers wish to sell and, in reliance upon the undertakings set out in
this agreement, the Purchaser wishes to purchase all the issued share
capital of Trimco on the terms set out in this agreement.
(E) The Optionholders are beneficially entitled to the Options.
(F) The Optionholders wish to waive all of their rights in respect of the
Options and to cancel the Options at Completion on the terms set out in
this agreement.
G) For the purposes of the City Code on Takeovers and Mergers (the "Code"),
each of the Sellers, who together comprise all of the holders of the entire
issued share capital of Trimco, acknowledges the terms of Schedule 4,
whereby the Seller waives the application of the Code.
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IT IS AGREED as follows:
1. INTERPRETATION
(1) In this agreement:
"Agreed Form" means, in relation to any document, the form of that document
which has been initialled for the purpose of identification by the Seller's
Solicitors and the Purchaser's Solicitors;
"Business Day" means a day (other than a Saturday or a Sunday) on which
banks are generally open in London and San Diego for normal business;
"Companies" means Trimco and the Subsidiaries and "Company" means any of
them;
"Completion" means completion of the sale and purchase of the Shares in
accordance with clause 6;
"Deferred Shares" means all of the Deferred 'A' Ordinary Shares and the
Deferred Ordinary Shares;
"Disclosure Letter" means the letter of the same date as this agreement
from the Sellers to the Purchaser in the Agreed Form;
"Group" means Trimco and the Subsidiaries;
"Non-Deferred Shares" means all of the Preference Shares, the 'A' Ordinary
Shares and the Ordinary Shares;
"Options" means those share option agreements granted by Trimco to the
Optionholders;
"Purchaser's Solicitors" means Xxxxx & Xxxxx of Xxx Xxx Xxxxxx,
Xxxxxx XX0X 0XX;
"Sellers' Solicitors" means Nabarro Xxxxxxxxx of 00 Xxxxxxxx Xxxxxx, Xxxxxx
X0X 0XX;
"Shares" means all of the Ordinary Shares, the 'A' Ordinary Shares, the
Preference Shares, the Deferred 'A' Ordinary Shares and the Deferred
Ordinary Shares;
"subsidiary" means a subsidiary for the purposes of the Companies Xxx 0000;
and
"Subsidiaries" means all the companies mentioned in Schedule 3 and
"Subsidiary" means any of them.
(2) Words denoting persons shall include bodies corporate and unincorporated
associations of persons.
(3) Subclauses (1) and (2) above apply unless the contrary intention appears.
(4) The headings in this agreement do not affect its interpretation.
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(5) The expression "with full title guarantee" means that the person selling,
or agreeing to sell:
(a) has the right to dispose of the relevant property, undertaking or
asset as it purports to;
(b) will, at its own cost, do all it reasonably can to give its transferee
the title it purports to give. This includes doing all it reasonably
can to ensure that the transferee is registered with the same class of
title and, in the case of any property or asset not yet registered,
giving all reasonable assistance to establish the transferee's right
to be so registered;
(c) disposes of the whole interest in the relevant property, undertaking
or asset;
(d) covenants that there is no subsisting breach which could result in
forfeiture of the relevant property, undertaking or asset; and
(e) disposes of the relevant property, undertaking or asset free from all
encumbrances (whether monetary or not) and from all other rights
exercisable by third parties.
2. SALE AND PURCHASE OF THE SHARES
(1) Each of the Sellers shall sell the number of Shares set out against its
name in Schedule 1 with full title guarantee and the Purchaser shall
purchase the Shares together with all rights attaching to them other than
the dividends provided for in the audited accounts of Trimco to 30th June,
1995 and the dividend which has accrued in respect of the Preference Shares
up until Completion.
(2) Each of the Sellers covenant with the Purchaser as follows:
(a) that it has the right to sell and transfer the full legal and
beneficial interest in the Shares set out against its name in Schedule
1 to the Purchaser on the terms set out in this agreement; and
(b) that on or after Completion it will, at its own cost and expense,
execute and do (or procure to be executed and done by any other
necessary party) all such deeds, documents, acts and things as the
Purchaser may from time to time reasonably require in order to vest
any of the Shares set out against its name in Schedule 1 in the
Purchaser or its nominee or as otherwise may be necessary to give
full effect to this agreement.
(3) Each of the Sellers covenants that the Shares set out against its name in
Schedule 1 shall be sold free from all liens, charges, equities and
encumbrances and other rights exercisable by third parties.
(4) The parties expressly acknowledge that no representations and warranties
have been given in relation to the sale and purchase of the Shares and the
cancellation of the Options. Each of the Sellers and the Optionholders
acknowledge that prior to the date of this agreement Xxx Xxxxx has provided
or arranged to provide information to the Purchaser, the Purchaser's
accountants and the Purchaser's solicitors in response to written requests
from them. Provided that there has been no fraud or recklessness as to the
accuracy or completeness of information provided to the Purchaser, the
Purchaser's accountants and the Purchaser's solicitors, the Purchaser shall
have no claim against the Sellers or the Optionholders in respect of such
information.
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If there has been fraud or recklessness as to the accuracy or completeness
of the information provided to the Purchaser, the Purchaser's accountants
or the Purchaser's solicitors, the Sellers and the Optionholders shall be
liable to the Purchaser for any loss suffered by the Purchaser as a result
of such fraud or recklessness provided that the maximum liability of each
Seller and each Optionholder shall not exceed the total consideration
received by the Seller or the Optionholder (as the case may be), which, in
the case of a Seller shall equal the aggregate of:
(a) the sum of cash paid to, or to the direction of, that Seller under
clause 3(1)(a); and
(b) the value of the Common Stock allotted to that Seller under clause
3(1)(b) determined by multiplying the number of shares allotted to the
Seller by US$5.018.
For the purposes of this subclause (4):
(a) there shall have been fraud or recklessness as to the accuracy or
completeness of the information provided to the Purchaser, the
Purchaser's accountants or the Purchaser's solicitors if the person
who provided such information:
(i) made a statement, which he knew to be misleading, false or
deceptive or dishonestly concealed any material fact; or
(ii) recklessly made (dishonestly or otherwise) a statement, which is
misleading, false or deceptive;
(b) references to the Sellers or to a Seller shall exclude 3i plc and 3i
Group plc.
(5) The Optionholders shall waive all rights relating to the Options.
(6) The Optionholders covenant with the Purchaser as follows:
(a) that they have the right to waive all rights to the Options on the
terms set out in this agreement; and
(b) that on or after Completion they will, at their own cost and expense,
execute and do (or procure to be executed and done by any necessary
party) all such deeds, documents, acts and things as the Purchaser may
from time to time require in order to cancel all of the Options as may
be necessary to give full effect to this agreement.
3. CONSIDERATION
(1) The consideration for the sale of the Shares shall be:
(a) the sum of US$6,521,133 payable to the Sellers in cash on Completion
in the proportions set out in Schedule 1; and
(b) the allotment to the Sellers of 1,614,189 common stock of the
Purchaser (the "Common Stock") in the proportions set out in
Schedule 1.
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(2) The consideration for the waiving by the Optionholders of all of their
rights under the Options and the cancellation of the Options shall be the
sum of US$28,867 payable to the Optionholders in cash on Completion in the
amounts set out in Schedule 1.
4. CONDITIONS PRECEDENT
(1) The sale and purchase of the Shares is conditional on receipt by the
parties (in a form to the reasonable satisfaction of the Sellers) of an
opinion in writing from the Purchaser's legal advisers that:
(i) no consent, approval or authorisation of and no registration,
declaration or filing with, any court or governmental authority or
agency of the United States of America is required by United States
federal law to be obtained or made by the Purchaser for the
consummation of the transactions contemplated by this agreement in
connection with the issuance of the Common Stock by the Purchaser to
the Sellers, except such as have been made or obtained prior to
Completion; and
(ii) subject to the accuracy of the statements made in clause 5(3) and
subject to the restrictions contained in clause 5(5), the offer and
sale of the Common Stock to the Sellers in the manner provided in this
agreement is exempt from the registration requirements of Section 5 of
the Act (as defined in clause 5(4)) by virtue of the provisions of
Regulation S promulgated thereunder; provided, however, that such
legal advisers shall express no opinion with respect to any resale of
such Common Stock by the Sellers; and provided, further, that such
legal advisers shall be entitled to assume the accuracy of the
respective factual representations of, and the compliance with the
respective agreements and undertakings by, the parties hereto
necessary to establish the applicability of the exemption from
registration provided by Regulation S.
(2) The Purchaser shall use reasonable endeavours to procure that the
conditions in subclause (1) above are fulfilled on or before 15th December,
1995.
(3) If the conditions in subclause (1) above are not fulfilled or waived on or
before the date specified in subclause (2) above all the preceding clauses
of this agreement shall cease to have effect and none of the parties
(provided he shall have used reasonable endeavours as aforesaid) will have
any rights or liabilities under those clauses.
5. PURCHASER'S COMMON STOCK
(1) Xxx Xxxxx represents and warrants that no Seller which holds 50% or more of
the voting securities of Trimco or has a contractual power presently to
designate 50 per cent. or more of the members of the board of directors of
Trimco either has (or controls entities that have in the aggregate) annual
net sales or revenues of $100 million or more (as shown on their most
recent regularly prepared annual statement of income and expenses) or has
(or controls entities that have in the aggregate) total assets of $100
million or more (as shown on their most recently prepared balance sheet).
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(2) Xxx Xxxxx shall procure that the Companies shall provide to the Purchaser
such information and documents as the Purchaser may reasonably request from
time to time prior to Completion for the purpose of complying with the
disclosure and other requirements of US federal and state securities (the
"Required Information") including financial information in compliance with
the requirements of the US Securities and Exchange Commission. None of
such Required Information provided to the Purchaser by the Companies will
include any untrue statement of a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(3) None of the Sellers is, or at the time of Completion will be, a "US
person", as such term is defined in Rule 902(o) of Regulation S of the US
Securities and Exchange Commission.
(4) The Sellers understand that the Common Stock has not been and will not be
registered under the US Securities Act of 1933 (the "Act") and may not be
offered or sold in the United States or to US persons unless it is
registered under the Act, or an exemption from the registration
requirements of the Act is available. None of the Sellers will engage in
any hedging transaction with respect to the Common Stock or take a short
position in the common stock of the Purchaser prior to the expiration of 40
days after the issuance of the Common Stock to the Sellers.
(5) Each of Document Management Systems Limited and Xxxxxx Documents Limited
undertakes to the Purchaser that it shall not dispose of its interest in
such Common Stock for a period of two years from the date of Completion,
save that it may dispose of its interest in up to 12 1/2 per cent. of the
total amount of Common Stock acquired by it under this agreement in each
three month period commencing on the day following Completion.
(6) If any of the Common Stock cannot be traded by reason of the Act after the
expiration of the 40 days period referred to in sub-clause (4) but within 2
years of Completion the Purchaser shall, as soon as reasonably practicable
after receiving notification from any of the Sellers, procure registration
under the Act of all Common Stock issued to the Sellers. The cost of such
registration shall be borne as to half by the Purchaser and as to the other
half by the Sellers (pro rata to their interests in the Common Stock)
provided that the obligation of all of the Sellers under this subclause
shall not exceed US$30,000.
6. COMPLETION
(1) Completion shall take place at the offices of the Purchaser's Solicitors
upon execution of this agreement.
(2) At Completion:
(a) each Seller shall procure the delivery to the Purchaser of:
(i) duly executed transfers in favour of the Purchaser or its
nominee(s) of all the Seller's Deferred Shares and, in the case
of 3i, of all the Preference Shares;
(ii) the warrants issued to the Seller by Trimco with respect to all
the Seller's Non-Deferred Shares;
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(iii) the share certificate(s) representing any of the Seller's
Shares (or an express indemnity in a form satisfactory to the
Purchaser in the case of any found to be missing);
(b) Xxx Xxxxx shall procure the delivery to the Purchaser of:
(i) the certificate of incorporation, common seal, minute books,
statutory registers and share certificate books of each Company
as the Purchaser may direct;
(ii) a service agreement between Trimco and Xxx Xxxxx in the Agreed
Form;
(iii) duly executed transfers of each share in a Subsidiary as is not
registered in the name of Trimco in favour of the Purchaser or
as it may direct together with the relevant share
certificate(s); and
(iv) the resignation of the auditors of each Company in the Agreed
Form in each case confirming, in accordance with section 394 of
the Companies Xxx 0000, that there are no circumstances
connected with their resignation which should be brought to the
attention of the members or creditors of that Company and that
no fees are due to them.
(c) each Seller shall (so far as it is able) procure that a board meeting
of each Company is held at which it is resolved that:
(i) such persons as the Purchaser nominates are appointed as
additional directors and the secretary of that Company;
(ii) the transfers referred to in paragraph (a) above (subject only
to their being duly stamped) are approved for registration;
(iii) Price Waterhouse are appointed as auditors; and
(iv) its bank mandates are revised in such manner as the Purchaser
requires;
(d) each of 3i plc and 3i Group plc shall deliver a written notice to the
Purchaser, addressed to Trimco and the Purchaser, confirming it waives
all rights:
(i) under article 9 of Trimco's articles of association; and
(ii) under Trimco's articles of association to have the Preference
Shares redeemed,
in a form satisfactory to the Purchaser;
(e) Document Management Systems Limited shall deliver a written notice to
the Purchaser, addressed to Trimco and the Purchaser, confirming that
it waives all of its rights under article 9 of the Trimco's articles
of association; and
(f) each of the Optionholders shall deliver a written notice waiving all
rights in respect of the Options and cancelling the Options.
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(3) Upon completion of all the matters referred to in subclause (2) above the
Purchaser shall:
(a) pay the cash consideration for the sale of the Shares to the Sellers'
Solicitors or otherwise as each Seller may direct the Purchaser in
writing except, in the case of 3i plc and 3i Group plc, in which case
the cash consideration for the sale of the Shares shall be paid to 3i
plc on behalf of itself and 3i Group plc;
(b) issue a share certificate to each Seller or its nominee for the number
of Common Stock set out next to the Seller's name in column H of Part
A of Schedule 1; and
(c) pay the cash consideration for the waiver by the Optionholders of
their rights under the Options and the cancellation of the Options to
the Sellers' Solicitors.
(4) If for any reason the provisions of subclause (2) above are not fully
complied with the Purchaser may elect (in addition and without prejudice to
all other rights or remedies available to it) to rescind this agreement or
to fix a new date for Completion.
7. INSIDER CONTRACTS
(1) Each Seller other than 3i plc and 3i Group plc covenants with the Purchaser
that neither that Seller nor any person or company or other entity
connected (subject to the proviso set out below) with that Seller:
(a) is a party to any outstanding agreement or arrangement for the
provision of finance, goods, services or other facilities to or by any
Company or in any way relating to any Company or its affairs except as
is set out in the Disclosure Letter; and
(b) has any claim against the Company and hereby waives any claim it may
have against the Company except as is set out in the Disclosure
Letter,
provided that no regard shall be had regarding any financial interest of
the nature described in the proviso to clause 10(2)(a) .
(2) Xxx Xxxxx covenants with the Purchaser that neither Xxx Xxxxx nor any
person or company or other entity connected with Xxx Xxxxx:
(a) is a party to any outstanding agreement or arrangement for the
provision of finance, goods, services or other facilities to or by any
Company or in any way relating to any Company or its affairs except as
is set out in the Disclosure Letter; and
(b) has any claim against the Company and hereby waives any claim it may
have against the Company except as is set out in the Disclosure
Letter,
provided that no regard shall be had regarding any financial interest of
the nature described in the proviso to clause 10(2)(a) .
(3) Each of 3i plc and 3i Group plc covenants with the Purchaser that it:
(a) is not a party to any outstanding agreement or arrangement for the
provision of finance, goods, services or other facilities to or by any
Company or in any way relating to any Company or its affairs except as
is set out in the Disclosure Letter; and
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(b) does not have any claim against the Company and hereby waives any
claim it may have against the Company except as is set out in the
Disclosure Letter.
8. LOAN ACCOUNTS
Each of the Sellers and Xxx Xxxxx shall procure that on Completion all
indebtedness due from that Seller (or any person connected with that
Seller) to any Company is satisfied in full other than as is set out in the
Disclosure Letter.
9. GUARANTEES
(1) Each of the Sellers (other than 3i plc and 3i Group plc) and Xxx Xxxxx
shall procure that on Completion each Company is released from all
guarantees and indemnities given by it other than a guarantee in respect
only of the liabilities of another Company.
(2) The Purchaser shall use reasonable endeavours to procure that as from
Completion each Seller and Xxx Xxxxx is released from all guarantees and
indemnities given by him in respect of obligations of any Company and of
which full particulars are contained in the Disclosure Letter and pending
its release the Purchaser shall indemnify the relevant Seller or Xxx Xxxxx
(as the case may be) against all liabilities under those guarantees and
indemnities.
10. PROTECTIVE COVENANTS
(1) Xxx Xxxxx covenants with the Purchaser (for itself and as trustee for each
Company) that he shall not:
(a) for a period of 2 years from Completion be concerned in any business
(other than the business of a Company) carrying on business which is
competitive or likely to be competitive with any of the businesses
carried on by a Company at Completion; or
(b) for a period of 2 years from Completion and except on behalf of a
Company canvass or solicit orders for goods of similar type to those
being manufactured or dealt in or for services similar to those being
provided by any Company at Completion from any person who is at
Completion or has been at any time within the year prior to Completion
a supplier or customer of a Company; or
(c) for a period of 2 years from Completion induce or attempt to induce
any supplier of a Company to cease to supply, or to restrict or vary
the terms of supply, to that Company; or
(d) for a period of 2 years from Completion induce or attempt to induce
any employee of a Company to leave the employment of that Company; or
(e) make use of or (except as required by law or any competent regulatory
body) disclose or divulge to any third party any information of a
secret or confidential nature relating to the business or affairs of
any Company or its customers or suppliers; or
(f) use or (insofar as it can reasonably do so) allow to be used (except
by the Companies) any trade name used by a Company at Completion or
any other name intended or likely to be confused with such a trade
name.
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(2) For the purposes of subclause (1) above:
(a) Xxx Xxxxx is concerned in a business if he carries it on as principal
or agent or if:
(i) he is a partner, director, consultant or agent in, of or to any
person who carries on the business; or
(ii) he has any direct or indirect financial interest (as
shareholder or otherwise) in any person who carries on the
business; or
(iii) he is a partner, director, consultant or agent in, of or to any
person who has a direct or indirect financial interest (as
shareholder or otherwise) in any person who carries on the
business
provided that no regard shall be had to any financial interest of a person
in securities which are listed on the London Stock Exchange or traded on
the Unlisted Securities Market and/or the Alternative Investment Market
and/or any internationally recognised stock exchange or similar securities
market if that person is interested in securities which amount to less than
five per cent. of the issued securities of that class and which, in all
circumstances, carry less than five per cent. of the voting rights (if any)
attaching to the issued securities of that class; and
(b) references to a Company include its successors in business.
(3) Each of the restrictions in each paragraph or subclause above shall be
enforceable by the Purchaser independently of each of the others and its
validity shall not be affected if any of the others is invalid; if any of
those restrictions is void but would be valid if some part of the
restrictions were deleted the restriction in question shall apply with such
modification as may be necessary to make it valid.
(4) Xxx Xxxxx acknowledges that the above provisions of this clause are no more
extensive than is reasonable to protect the Purchaser as the purchaser of
the Shares.
(5) If by virtue of any provision of this agreement or of any other agreement
or arrangement of which this agreement forms part the agreement or
arrangement is subject to registration under the Restrictive Trade
Practices Xxx 0000, that provision shall not take effect until the day
after particulars of the agreement or arrangement have been given to the
Director General of Fair Trading under section 24 of that Act.
11. ANNOUNCEMENTS
No party shall make any announcement concerning this sale and purchase or
any ancillary matter before Completion except as required by law or any
competent regulatory body or with the written approval of Xxx Xxxxx, 3i
plc and the Purchaser, such approval not to be unreasonably withheld or
delayed.
12. NOTICES
(1) Any notice or other document to be served under this agreement may be
delivered or sent by post or telex or facsimile process to the party to be
served at its address appearing in this agreement or at such other address
as it may have notified to the other party in accordance with this clause.
Any notice or document sent by post shall be sent by prepaid first class
recorded delivery post (if within the United Kingdom) or by prepaid airmail
(if elsewhere).
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(2) Any notice or document shall be deemed to have been served:
(a) if delivered, at the time of delivery; or
(b) if posted, at 10.00 a.m. on the second Business Day after it was put
into the post, if sent within the United Kingdom, or at 10.00 a.m.
(local time at place of destination) on the seventh Business Day after
it was put into the post, if sent by airmail; or
(c) if sent by telex or facsimile process, at the expiration of 2 hours
after the time of despatch, if despatched before 3.00 p.m. (local time
at the place of destination) on any Business Day, and in any other
case at 10.00 a.m. (local time at the place of destination) on the
Business Day following the date of despatch.
(3) In proving service of a notice or document it shall be sufficient to prove
that delivery was made or that the envelope containing the notice or
document was properly addressed and posted as a prepaid first class
recorded delivery letter or that the telex or facsimile message was
properly addressed and despatched as the case may be.
13. RESOLUTIONS AND WAIVERS
(1) In relation to each Company the Sellers shall procure (so far as they each
are able) the convening of all meetings, the giving of all waivers and
consents and the passing of all resolutions as are necessary under the
Companies Xxx 0000, its articles of association or any agreement or
obligations affecting it to give effect to this agreement.
(2) The Sellers waive (and shall procure the waiver by its nominee(s) of) all
rights of preemption which it (or such nominee(s)) may have (whether under
Trimco's articles of association or otherwise) in respect of the transfer
to the Purchaser or its nominee(s) of the Shares or any of them.
(3) For so long after Completion as it remains the registered holder of any of
the Shares the Sellers shall hold them and any distributions, property and
rights deriving from them in trust for the Purchaser and shall deal with
the Shares and any distributions, property and rights deriving from them as
the Purchaser directs; in particular, the Sellers shall exercise all voting
rights as the Purchaser directs or shall execute an instrument of proxy or
other document which enables the Purchaser or its representative to attend
and vote at any meeting of Trimco.
14. GENERAL
(1) Each of the obligations and undertakings set out in this agreement which is
not fully performed at Completion will continue in force after Completion.
(2) Unless otherwise expressly stated all payments to be made under this
agreement shall be made in US Dollars to the party to be paid as follows:
(a) to the Sellers' Solicitors at:
bank Midland Bank plc
000X Xxxxxxxxxx
Xxxxxx X0
sort code: 40-05-27
account name: Nabarro Xxxxxxxxx Re Trimco Group US$ Client Account
account number: 00000000
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12
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or such other account as the Sellers may specify; and
(b) to the Purchaser at such account as the Purchaser may specify.
(c) to 3i plc on behalf of itself and 3i Group plc at:
bank: Chase Manhattan Bank, New York
Swift LLOYDGB2CITY
Lloyds Bank plc
City International Branch London
Favour 3i Group plc
account number: 00000000
(3) The receipt of the Sellers' Solicitors (except for 3i plc and 3i Group plc)
for any sum or document to be paid or delivered to the Sellers (except 3i
plc and 3i Group plc) or to the Optionholders will discharge the
Purchaser's obligation to pay or deliver it to the Sellers (except 3i plc
and 3i Group plc) or to the Optionholders (as the case may be). The
receipt of 3i plc for any sum or document to be paid or delivered to 3i plc
or 3i Group plc will discharge the Purchaser's obligation to pay or deliver
it to 3i plc or 3i Group plc.
(4) If the Shares are sold or transferred after Completion to any wholly-owned
company within the Purchaser's Group the benefit of each of the obligations
and undertakings undertaken or given by the Sellers and/or Xxx Xxxxx may be
assigned to the purchaser or transferee of the Shares who may enforce them
as if it had been named in this agreement as the Purchaser.
(5) Subject to subclause (4) above none of the rights or obligations under this
agreement may be assigned or transferred without the prior written consent
of all the parties.
(6) Each party shall pay the costs and expenses incurred by it in connection
with the entering into and completion of this agreement.
(7) This agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same agreement and any party
may enter into this agreement by executing a counterpart.
15. WHOLE AGREEMENT
(1) This agreement and the documents referred to in it contain the whole
agreement between the parties relating to the transactions contemplated by
this agreement and supersede all previous agreements between the parties
relating to these transactions except as otherwise agreed in writing.
(2) Each of the parties acknowledges that in agreeing to enter into this
agreement it has not relied on any representation, warranty or other
assurance except those set out in this agreement and in the absence of
fraud or recklessness he will not have any remedy or right arising out of
or in connection with this agreement or the information and responses
provided to the Purchaser on behalf of the Sellers (as defined in clause
2(4)) except as otherwise agreed in writing.
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13
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16. GOVERNING LAW
This agreement is governed by and shall be construed in accordance with
English law and the Purchaser agrees to submit to the jurisdiction of the
courts of England. The address for the service of notices for the
Purchaser shall be 000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxx, X0 0XX or such other
address in England as it shall notify Xxx Xxxxx from time to time.
AS WITNESS the hands of the Sellers or their authorised signatories, the hands
of the Optionholders or their authorised signatories and of a duly authorised
officer of the Purchaser on the date which appears first on page 1.
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14
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SCHEDULE 1
PARTICULARS OF THE SELLERS AND THE OPTIONHOLDERS
PART A
THE SELLERS
B. No. of C. No. of 'A' D. No. of E. No. of F. No. of G. Amount of H. No. of
A. Name and Address Preference Ordinary Shares Ordinary Deferred 'A' Deferred Cash Common
Shares Shares Ordinary Shares Ordinary Shares Consideration Stock
Document Management
Systems Ltd.
Tropic Isle Buildings
Road Town, Tortola
British Virgin Islands 150,000 150,000 US$3,077,436 735,719
3i plc
00 Xxxxxxxx Xxxx
Xxxxxx XX0 0XX 50,000 45,600 45,600 US$969,746
3i Group plc
00 Xxxxxxxx Xxxx
Xxxxxx XX0 0XX 11,000 11,000 US$215,265 276,231
Xxxxxx Documents
Limited
XX Xxx 000
No. 1 Xxxxxx Place
St Helier, Jersey 90,114 90,114 US$1,763,489 439,792
Xxxxxxx Xxxxxxx XX0
0XX
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15
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Xxxxxxx Xxxxxx
00 Xxxxxx Xxxx Xxxxxx
Xxxx Xxxxxxx
Bucks 6,000 6,000 US$83,991 29,282
Xxxxx Xxxxxxxxx Xxxxxx
00 Xxxxxx Xxxx Xxxxxx
Xxxx Xxxxxxx
Bucks 2,000 2,000 US$39,139 9,761
Dr Michael Hadjitofi
Xxxx Xxxxxxxxxxxx 0
0000 XX Xxx Xxxx 7,195 7,195 US$140,803 35,114
Xxxxxxxx Xxxxxxx
00 Xxxx Xxxxx
Xxxxxxxxxx Xxxx
Xxxxxx
Xxxxxx X00 ODU 4,401 4,401 US$82,227 21,478
Haickanoosh Liddell
0 Xxxxxx Xxxx
Xxxxxx
Xxxxxxx XXX 0XX 8,195 8,195 Nil 39,995
Xxx Xxxxx
0 Xxxxxxxx
Xxxxxxx Xxxx
Xxxxxxxxx XX00 0XX 895 895 US$15,287 4,368
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16
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Xxxx Xxxxx
0 Xxxxxxxx
Xxxxxxx Xxxx
Xxxxxxxxx XX00 0XX 1,700 1,700 US$33,268 8,297
J Xxxxxxxx
0 Xxxxxxxxxx Xxxx
Xxxxxxxxxx
Xxxxxx XX0 0XX 950 950 US$13,299 4,636
B Xxxxxx
0 Xxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxx XX0 0XX 500 500 US$6,999 2,440
P Xxxxxx
00 Xxxxx Xxxx
Xxxxxx, Xx Xxxxxx
Xxxxxx XX00 0XX 400 400 US$5,600 1,952
S King
The Retreat
Flowers Bottom Xxxx
Xxxxx
Nr Princes Risborough
Bucks NP27 3PZ 350 350 US$4,899 1,708
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17
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P Xxxxxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxx,
Xxxxxxxx 250 250 US$3,499 1,220
Xxxxxxxxx XX0 0XX
S Xxxxxxxx
00 Xxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxxxxx
Xxxxxx 250 250 US$3,499 1,220
J Xxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx
Xxxx XX0 0XX 150 150 US$2,099 732
L Xxxxxxxxx
0 Xxxxxx Xxxxx
Xxxxxxxxx
Xxxxxx XX0 50 50 US$699 244
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18
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PART B
THE OPTIONHOLDER
A. Name and Address B. No. of Options C. Amount of Cash Consideration
Xxxxxxx Boses 750 US$28,867
0000 00xx Xxxxxx X.
Xxxxxxxx
X 0 00000
Xxxxxx Xxxxxx of America
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SCHEDULE 2
PARTICULARS OF THE COMPANY
Registered number: 2253256
Registered office: 000, Xxxxxxxx Xxxx, Xxxxxx, Xxxxxx X0 0XX
Date and place of incorporation: 9th May, 1988 at Cardiff
Directors: Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxx Xxx Xxxxx
Xxxxxxxx Xxxxx Xxxxx
Secretary: Xxxxx Xxxxxx
VAT number: GB 538819602
Accounting reference date: 30th June
Auditors: Gane Xxxxxxx Xxxxx
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SCHEDULE 3
PARTICULARS OF THE SUBSIDIARIES
A. TRIMCO ENTERPRISES LIMITED
Registered number: 2625912
Registered office: 000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxx, X0 0XX
Date and place of 26th June, 1991, London
incorporation:
Directors: Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxxx Xxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxx Xxx Xxxxx
Secretary: Xxxxx Xxxxxx
Accounting reference date: 30th June
Auditors: Gane Xxxxxxx Xxxxx
Authorised capital: L1000
Issued capital: L2
Shareholders: Trimco Group Plc No. of shares: 2
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21
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B. IMAGEN ENTERPRISES LIMITED
Registered number: 2527310
Registered office: 000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxx, X0 0XX
Date and place of 2nd August, 1990, Cardiff
incorporation:
Directors: Xxxxxxxxxx Xxxxx Xxxxx
Xxxxx Xxxxxx
Secretary: Xxxxx Xxxxxx
Accounting reference date: 30th June
Authorised capital: L1000
Issued capital: L100
Shareholders: Trimco Group Plc No. of shares:100
Status: Registered as a dormant company
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22
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C. MICRO SYNERGY ASSOCIATES, INC.
FEI Number: 00-0000000
Principal Place of Business: 00000 Xxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx
Xxxxxxx 00000
Date of Incorporation: 29th January, 1987
Directors: Xxx Xxxxx
Secretary: Xxxxx Xxxxxx
Authorised capital: $500
Issued capital: $67
Shareholders: Trimco Enterprises Limited
This Company ceased to trade on 30th November, 1995
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23
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D. TRIMCO AMERICA INC.
FEI Number: 00-0000000
Principal Place of Business: 00000 Xxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx
Xxxxxxx 00000
Date of Incorporation: 23rd December, 1991
Directors: Xxx Xxxxx
Xxxxx Xxxxxx
Secretary: Xxxxx Xxxxxx
Authorised capital: $1000
Issued capital: $100
Shareholders: Trimco Group plc
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E. TRIMCO DOCUMENT MANAGEMENT INC.
Registration No.: 290490-0
Date of Incorporation: 00xx Xxxxx, 0000 (Xxxxxx Business Corporation
Acts)
Principal Place of Business: 0000 XxXxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx
Province of Quebec H3B 2Y5
Nominee Director: Xxxxx Xxxxxx (Canadian resident)
Authorised capital: Unlimited
Shareholders: Trimco Group plc
Issued capital: C$100
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SCHEDULE 4
CITY CODE ON TAKEOVERS AND MERGERS
1. Under the terms of this agreement, all of the Sellers, as all the
shareholders in Trimco acknowledge that the Panel on Takeovers and Mergers
(the "Panel") has agreed to a waiver of the City Code on Takeovers and
Mergers (the "Code") in respect of the sale and purchase of the Shares
provided that all of the Sellers agree to waive their rights under the Code
as set out in this Schedule. Brief details of the Panel, the Code and the
protections they afford are described below. Each of the Sellers
acknowledges that in waiving their rights under the Code they have had the
opportunity to take independent professional advice.
2. The Code is issued and administered by the Panel. The Code applies to all
takeover and merger transactions, however effected, where the offeree
company is (inter alia) an unlisted public company resident in the United
Kingdom. Trimco is such a company and its shareholders are entitled to the
protection afforded by the Code.
3. The Code and the Panel operate principally to ensure fair and equal
treatment of shareholders in relation to takeovers. The Code also provides
an orderly framework within which takeovers are conducted.
4. The Code has not, and does not seek to have, the force of law. It has,
however, been acknowledged by both government and other regulatory
authorities that those who seek to take advantage of the facilities of the
securities market in the United Kingdom should conduct themselves in
matters relating to takeovers in accordance with best business standards
and so according to the Code.
5. The Code is based upon a number of General Principles which are essentially
statements of good standards of commercial behaviour. The General
Principles are set out in Appendix 1 to this Schedule 4. These General
Principles apply to all transactions with which the Code is concerned.
They are, however, expressed in broad general terms and the Code does not
define the precise extent of, or the limitations on, their application.
They are applied by the Panel in accordance with their spirit to achieve
their underlying purpose: the Panel may modify or relax the effect of their
precise wording accordingly.
In addition to the General Principles, the Code contains a series of Rules,
of which some are effectively expansions of the General Principles and
examples of their application and other provisions governing specific
aspects of takeover procedure. Although most of the Rules are expressed in
more detailed language than the General Principles, they are not framed in
technical language and, like the General Principles, are to be interpreted
to achieve their underlying purpose. Therefore, their spirit must be
observed as well as their letter and the Panel may modify or relax the
application of a Rule in certain circumstances.
6. The following points are of particular relevance:-
(i) General Principle 1 of the Code states that all shareholders of the
same class must be treated similarly by an offeror. Furthermore, the
effect of Rule 16 is that, except with the consent of the Panel,
special arrangements may not be made with shareholders in Trimco if
there are favourable conditions attached which are not being extended
to all shareholders.
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(ii) The Board of Directors of Trimco is required by Rule 3.1 of the
Code to obtain competent independent advice on the Offer and the
substance of such advice must be made known to its shareholders.
General Principle 4 requires that shareholders must be given
sufficient information and advice to enable them to reach a
properly informed decision and must have sufficient time to do so.
(iii) In support of the latter requirement, Rule 24 requires that the
document setting out the Offer must deal in detail with the
following matters:-
(a) the Offeror's intentions regarding Trimco and its employees;
(b) detailed financial information regarding the Offeror for the
past three years; the names of its Directors; the nature of its
business; financial and trading prospects; and a summary of the
principal contents of material contracts entered into during
the preceding two years;
(c) full details of the terms of the Offer;
(d) detailed financial information on Trimco for the past three
years and the names of its Directors;
(e) a description of how the Offer is to be financed and the source
of the finance;
(f) if appropriate, middle market quotes for the last six months of
the shares to be acquired and if not, details of the prices at
which shares have been transferred during the previous six
months;
(g) appropriate details of shareholdings and recent dealings in the
securities of the Offeror and Trimco by relevant parties;
(h) details of any special arrangements between the Offeror or any
person acting in concert with it and any of the Directors,
recent directors, shareholders or recent shareholders of Trimco
having any connection with or dependence upon the Offer;
(i) certain extracts from the Code relating to acceptances of the
Offer, timing obligations, restrictions on Offerors or
provisions conferring rights on shareholders in Trimco;
(j) confirmation by an appropriate third party that resources are
available to the Offeror sufficient to satisfy the cash
payments required under the Offer;
(k) a statement as to whether or not any shares acquired under the
Offer will be transferred to any other persons; and
(l) a statement to the effect that, except with the consent of the
Panel, settlement of the consideration to which any shareholder
is entitled under the Offer will be implemented in full in
accordance with the terms of the Offer without regard to any
lien, right of set-off, counterclaim or other analogous right
to which the Offeror may otherwise be entitled.
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27
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(iv) Rule 25 requires that the Board of Trimco must circulate its
views on the Offer and make known to its shareholders the substance
of the advice given to it by independent advisers appointed pursuant
to Rule 3.1. The Board must also comment upon the Offeror's
statements regarding its intentions in respect of the Company and
its employees. The circular from the Board of Trimco must also deal
with the following matters:-
(a) appropriate details of shareholdings and recent dealings in the
securities of the Offeror and Trimco by relevant parties;
(b) whether the Directors of Trimco intend to accept or reject the
Offer in respect of their own beneficial shareholdings; and
(c) a summary of the principal contents of each material contract
entered into by Trimco and its subsidiaries during the period
beginning two years before the Offer was made.
(v) Rule 20.1 states that information about the companies involved in
the Offer must be made equally available to all shareholders as
nearly as possible at the same time and in the same manner.
7. Compliance with the Code inevitably imposes time constraints and additional
costs. Each of the Sellers believes that in respect of the sale and
purchase of Shares as set out in this agreement, these costs and
constraints may well outweigh the advantages to all parties and each of the
Sellers agrees to the waiver from the Code by the Panel for the purposes of
the sale and purchase of the Shares in accordance with the terms of this
agreement.
APPENDIX 1 - THE GENERAL PRINCIPLES OF THE CODE
1. All shareholders of the same class of an offeree company must be treated
similarly by an offeror.
2. During the course of an offer, or when an offer is in contemplation,
neither an offeror, nor the offeree company, nor any of their respective
advisers may furnish information to some shareholders which is not made
available to all shareholders. This principle does not apply to the
furnishing of information in confidence by the offeree company to a bona
fide potential offeror or vice versa.
3. An offeror should only announce an offer after the most careful and
responsible consideration. Such an announcement should be made only when
the offeror has every reason to believe that it can and will continue to be
able to implement the offer: responsibility in this connection also rests
on the financial adviser to the offeror.
4. Shareholders must be given sufficient information and advice to enable them
to reach a properly informed decision and must have sufficient time to do
so.
5. Any document or advertisement addressed to shareholders containing
information or advice from an offeror or the board of the offeree company
or their respective advisers must, as is the case with a prospectus, be
prepared with the highest standards of care of accuracy.
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28
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6. All parties to an offer must use every endeavour to prevent the creation of
a false market in the securities of an offeror or the offeree company.
Parties involved in offers must take care that statements are not made
which may mislead shareholders or the market.
7. At no time after a bona fide offer has been communicated to the board of an
offeree company, or after the board of an offeree company has reason to
believe that a bona fide offer might be imminent, may any action be taken
by the board of the offeree company in relation to the affairs of the
company, without the prior approval of the shareholders in general meeting,
which could effectively result in any bona fide offer being frustrated or
in the shareholders being denied an opportunity to decide on its merits.
8. Rights of control must be exercised in good faith and the oppression of a
minority is wholly unacceptable.
9. Directors of an offeror and the offeree company must always, in advising
their shareholders, act only in their capacity as directors and not have
regard to their personal or family shareholdings or to their personal
relationships with the companies. It is the shareholders' interests taken
as a whole, together with those of employees and creditors, which should be
considered when the directors are giving advice to shareholders. Directors
of the offeree company should give careful consideration before they enter
into any commitment with an offeror (or anyone else) which would restrict
their freedom to advise their shareholders in the future. Such commitments
may give rise to conflicts of interest or result in a breach of the
directors' fiduciary duties.
10. Where control of a company is acquired by a person, or persons acting in
concert, a general offer to all other shareholders is normally required; a
similar obligation may arise if control is consolidated. Where an
acquisition is contemplated as a result of which a person may incur such an
obligation, he must, before making the acquisition, ensure that he can and
will continue to be able to implement such an offer.
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29
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SIGNED by )
Xxxxx Xxxx Xxxxxx )
and )
by Xxxxxxx Xxxx Xxxxxxx Xxxxxxx ) /s/ Xxxxx Xxxx Xxxxxx
as authorised signatories )
for and on behalf of ) /s/ Xxxxxxx Xxxx Xxxxxxx Xxxxxxx
DOCUMENT MANAGEMENT )
SYSTEMS LIMITED )
SIGNED by )
Xxxxx Xxxx Xxxxxx )
and )
by Xxxxxxx Xxxx Xxxxxxx Xxxxxxx ) /s/ Xxxxx Xxxx Xxxxxx
as authorised signatories )
for and on behalf of ) /s/ Xxxxxxx Xxxx Xxxxxxx Xxxxxxx
XXXXXX DOCUMENTS LIMITED )
SIGNED by )
Xxxxxxxxx Xxxxxx as )
authorised signatory ) /s/ Xxxxxxxxx Xxxxxx
for and on behalf of )
3i plc )
SIGNED by )
Xxxxxxxxx Xxxxxx as )
authorised signatory ) /s/ Xxxxxxxxx Xxxxxx
for and on behalf of )
3i GROUP plc )
SIGNED by
XXXXX XXXXXXXXX XXXXXX )
/s/ Xxxxx Xxxxxx
SIGNED by DR MICHAEL HADJITOFI )
/s/ Xxxxxxx Hadjitofi
SIGNED by XXXXXXXX XXXXXXX )
/s/ Xxxxxxxx Xxxxxxx
--------------------------------------------------------------------------------
30
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SIGNED by HAICKANOOSH LIDDELL )
/s/ Haickanoosh Liddell
SIGNED by XXX XXXXX )
/s/ Xxx Xxxxx
SIGNED by XXXX XXXXX )
/s/ Xxxx Xxxxx
SIGNED by J XXXXXXXX )
/s/ J Xxxxxxxx
SIGNED by B XXXXXX )
/s/ B Xxxxxx
SIGNED by P XXXXXX )
/s/ P Xxxxxx
SIGNED by S KING )
/s/ S King
SIGNED by P XXXXXXXX )
/s/ P Xxxxxxxx
SIGNED by S XXXXXXXX )
/s/ S Xxxxxxxx
SIGNED by J XXXXX )
/s/ J Xxxxx
SIGNED by L XXXXXXXXX )
/s/ L Xxxxxxxxx
SIGNED by XXX XXXXX )
/s/ Xxx Xxxxx
SIGNED by XXXXXXX BOSES )
/s/ Xxxxxxx Boses
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31
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SIGNED by XXXXXXX XXXX )
XXXXXX )
/s/ Xxxxxxx Xxxx Xxxxxx
SIGNED by )
)
for and on behalf of ) /s/ Xxxxxx X. Xxxxx
ALPHAREL, INC. )
