Acquisition Agreement
This Acquisition Agreement, dated as of 4 December 2002, is by and between
MetaSource Group, a Nevada company, hereinafter called "MSGR"; and the Acquired
Company's stockholders, hereinafter called the "Stockholders", as listed in
Appendix A.
1. Acquisition
All International Trade and Development Group Limited company number
4174011 (the Acquired Company), shares shall be acquired by MSGR in
exchange solely for an amount of common stock of MSGR (the "Exchange
Shares") as hereinafter defined. As of one year following the Closing
Date, hereinafter defined in Article 5, the Exchange Shares will be
issued to the Stockholders on a pro rata basis of share ownership of the
Acquired Company.
MSGR, the Acquired Company and the Stockholders agree that all of the
Exchange Shares shall be exchanged for a number of Acquired Company
shares, based on the average trading price (defined hereinafter) of MSGR
common stock on the first twenty trading days of MSGR shares following
the date of this acquisition agreement based on the Formula (defined
hereafter). The Formula shall be the average of the following: 1) 5 times
Acquired Company net earnings for Year One (defined hereafter) and; 2) 5
times Acquired Company net earnings for Year Two (defined hereafter). Net
earnings shall be calculated in accordance with Schedule 1 attached to
this Agreement.) Year One shall be defined as the period from the date of
this acquisition agreement to the date of the first anniversary of the
date of this acquisition agreement. Year Two shall be defined as the
period from the date of the first anniversary of the date of this
acquisition agreement to the date of the second anniversary of the date
of this acquisition agreement. The average trading price of MSGR shares
will be calculated as the average of high and low prices as reported on
xxxxxxx.xxxxx.xxx. One half of the Exchange Shares due to the
Stockholders at the end of Year One shall be held in escrow until the
number of Exchange Shares due at the end of Year Two has been determined
which shall not exceed 60 days after the end of Year Two ("Escrow
Period"). Within 60 days following Year Two, additional shares will be
added according to the formula above if Acquired Company's net earnings
calculated in accordance with the Schedule for Year Two are greater than
the Acquired Company's net earnings calculated in accordance with the
Schedule for Year One. If Acquired Company net earnings for the Year Two
are less than Acquired Company net earnings for the previous twelve
months the appropriate Exchange Shares will be subtracted accordingly to
the formula above.
At the end of the Escrow Period the Stockholders will be fully vested in
the Exchange Shares based upon the formula above..
2. Delivery of Acquired Company Shares
On the Closing Date, the Stockholders will deliver to MSGR stock transfer
forms to transfer their Acquired Company shares together with their share
certificates so as to, following stamping of the stock transfer forms,
make MSGR the sole owner thereof, free and clear of all claims and
encumbrances.
Delivery will be made at 00 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxx Xxxx, XX
00000.
3. Representations of Stockholders and the Acquired Company
The Stockholders warrant to MSGR as follows:
a) As of the Closing Date, the Stockholders will be the sole owners
of the Acquired Company shares appearing of record in their
names; such shares will be free from claims, liens or other
encumbrances.
b) The Acquired Company shares will constitute validly issued shares
of the Acquired Company which are fully paid and non assessable.
c) As of the Closing Date, there will be 20 Ordinary Shares of the
Acquired Company's stock issued and outstanding. There are no
options, warrants, convertible or other securities, calls,
commitments, conversion privileges, preemptive rights or other
rights or agreements outstanding to purchase or otherwise acquire
(whether directly or indirectly) any of the Acquired Company's
share capital or any security convertible into or exchangeable
for any shares of the Acquired Company's capital stock or
obligating the Acquired Company to grant, issue, extend, or enter
into, any such option, warrant, convertible or other security,
call, commitment, conversion privilege, preemptive right or other
right or agreement ("Interests"). The Company has no liability
for any dividends accrued but unpaid. No Acquired Company shares
are reserved for issuance under any stock purchase, stock option
or other benefit plan.
d) The financial statements of the Acquired Company, ("the
Accounts") as of 22 October 2002 ("Accounts Date") which will be
delivered to MSGR prior to the Closing Date, show a true and fair
view of the financial condition of the Acquired Company as at the
Accounts Date in accordance with generally accepted accounting
principles and practices in the United Kingdom the Accounts make
adequate provision for all material liabilities of the Acquired
Company as at the Accounts Date other than contracts of
obligations in the usual course of business; and no such
contracts or obligations in the usual course of business are
liens or other liabilities which, if disclosed, would alter
substantially the financial condition of the Acquired Company as
reflected in such financial statements.
e) Since the Accounts Date there has not been, any material adverse
changes in the financial position of the Acquired Company, except
changes arising in the ordinary course of business and the
business of the Acquired Company has been carried on in the
ordinary and usual course as a going concern.
f) Intellectual Property i) The Acquired Company owns, or has the
right to use, sell or license all of its Intellectual Property
Rights (as defined below, the "IP Rights"), necessary or required
for the conduct of its business as presently conducted, and such
rights to use, sell, or license are sufficient for such conduct
of its business;
ii) The Acquired Company is the legal and beneficial owner of
all IP Rights owned by it;
iii) Any and all intellectual property held by the Acquired
Company is owned outright, free and clear of any claims,
liens, security interests, mortgages, encumbrances or
obligations by the Acquired Company;
iv) The Acquired Company is currently taking reasonable and
practicable steps designed to protect, preserve, and
maintain the secrecy and confidentiality of all material
Acquired Company IP Rights and all of Acquired Company's
proprietary rights therein;
v) All officers, employees, agents, and consultants of the
Acquired Company having access to proprietary information
relating to the IP Rights agree not to disclose such
information to any third parties. IP Rights, as used herein,
means, collectively, all worldwide industrial and
intellectual property rights, including but not limited to
patents, patent applications, patent rights, trademarks,
trademark applications, trade names, trade dress, service
marks, service xxxx applications, copyrights, copyright
applications, franchises, licenses, inventions, trade
secrets, know-how, customer lists, proprietary processes and
formulae, manuals, memoranda and records.
g) The Acquired Company is not involved in any litigation or
governmental investigation or proceeding not reflected in the
Acquired Company's financial statements or otherwise disclosed in
writing to MSGR, and to the knowledge of the Stockholders, no
litigation or governmental investigation or proceeding is
threatened against the Acquired Company.
h) The Acquired Company is registered as a company with the
Registrar of Companies of England and Wales.
i) The Acquired Company has in effect all fire, casualty and
liability and other relevant insurance policies usual for a
company carrying on a similar business.
j) There are no dividends of the Acquired Company declared and
unpaid on any shares of any class of capital stock . k) Since the
Accounts Date, the Acquired Company has not made or become a
party to any contract or commitment, to renew, extend, amend or
modify any contract or commitment, except in the ordinary course
of business.
l) The Stockholders and representatives signing on behalf of
Acquired Company are duly authorized to execute this agreement.
m) The Acquired Company is not insolvent or unable to pay its debts
within the meaning of Section 123 of the Insolvency Xxx 0000. No
order has been made, presented or resolution passed for the
winding up of Acquired Company, there are no grounds on which any
such order or petition could be made or presented.
4. Representations of MSGR
MSGR warrants as follows:
a) As of the Closing Date, the Exchange Shares to be delivered to
the Stockholders will constitute valid and legally issued shares
of MSGR, fully paid and non assessable.
b) The officers of MSGR executing this Agreement are duly authorized
to execute this Agreement.
c) MSGR is not involved in any pending litigation or governmental
investigation or proceeding not reflected in such financial
statements or otherwise disclosed in writing to the Stockholders.
d) As of the Closing Date, MSGR undertakes to the Stockholders that
it will be a validly incorporated Nevada corporation.
e) Since 12 July 2002 there has not been and prior to the Closing
Date there will not be any material adverse changes in the
financial position of MSGR, except changes arising in the
ordinary course of business
5. Closing Date
The Closing Date of this transaction will be no later than 60 days from
the date of this acquisition agreement and is contingent on completion of
the Condition to Closing (defined hereafter). Until such date shares will
not be exchanged. The Condition to Closing shall be defined as MSGR.
reconciling to their reasonable satisfaction the bank statements of
Acquired Company as at the date of this agreement with the financial
statements in Appendix B by the Closing Date. The Stockholders will
procure that Acquired Company provides such bank statements no later than
four weeks prior to the Closing Date. MSGR may at its complete
discretion, by written notice to the Stockholders waive this condition.
If this condition has not been waived and is not satisfied by close of
business on the Closing Date MSGR may on that date by written notice to
the Stockholders terminate this agreement.
6. Prohibited Acts
From the date this Agreement is executed to the Closing Date, the
Stockholders and principals of Acquired Company will not permit the
Acquired Company to do any of the following:
a) Declare or pay any dividends or other distributions on its stock
or purchase or redeem any of its stock;
b) Issue any stock or other securities, including any right or
option to purchase or otherwise acquire any of its stock, or
issue any notes or other evidences of indebtedness not in the
usual course of business.
c) Make capital expenditures in excess of(pound)18,000, except with
the consent of MSGR.
7. Delivery of Records
The Stockholders and Acquired Company agree that on or before the Closing
Date they will cause to be delivered to MSGR such corporate records or
other documents as MSGR may reasonably request in order to effectuate the
transaction contemplated by this Agreement.
8. Dilution of Shares
The Stockholders consent and acknowledge that MSGR may authorize and/or
issue additional common shares, preferred shares, or warrants to purchase
common shares of MSGR prior to, at or subsequent to the Closing Date. The
Stockholders acknowledge that Exchange Shares held by the Stockholders
may experience a dilution in their percentage of ownership in MSGR as a
result of issuance by MSGR of additional shares.
9. Tax-Free Reorganization
The transactions contemplated herein shall be treated as a tax-free plan
of reorganization under Section 368(b) of the Internal Revenue Code, the
Exchange Shares issued in this transaction will be issued solely in
exchange for the Acquired Company shares held by the Stockholders, and no
other transaction shall be an adjustment to the consideration between the
parties to this Agreement for the transactions contemplated herein.
Further, no consideration which would constitute "other property" within
the meaning of Section 356(a) of the Internal Revenue Code is being
transferred by the parties as consideration pursuant to this Agreement.
The parties shall not take a position on any tax return or before any
taxing authority that is inconsistent with this Article 11, unless
otherwise required by a final and binding judicial or governmental
determination of competent jurisdiction. Neither MSGR nor the Acquired
Company represents or warrants that the transactions contemplated herein
will qualify as a reorganization under the Internal Revenue Code. MSGR
acknowledges that stamp duty is payable on the stock transfer forms
effecting the acquisition of the shares of the Acquired Company and
undertakes to pay such duty
10. Good and Marketable Title
Save as disclosed to MSGR in writing prior to the Closing Date after
acquiring the Acquired Company, MSGR shall have good and marketable title
and/or licenses or rights to use all of the Acquired Company's tangible
and intangible assets including, but not limited to, intellectual
properties necessary or required to successfully develop and commercially
exploit the Acquired Company's business.
11. Acquisition Intent of Shareholders
Stockholders are acquiring the MSGR shares for their own accounts and not
with an intention of distribution within the meaning of Section 2(11) of
the Securities Act of 1933, as amended ("Securities Act"). Each of the
Stockholders represents and confirms to MSGR that he or she (i) is an
accredited investor within the meaning of Rule 501(a) pursuant to the
Securities Act or, if not such an accredited investor, has, alone or
together with a purchaser representative within the meaning of Rule
501(h) pursuant to the Securities Act, such knowledge and experience in
financial and business matters as to be capable of evaluating the merits
and risks of an investment in the MSGR's securities; (ii) is aware of the
limits on resale of the Exchange Shares imposed because of the nature of
the transactions contemplated herein, including, but not limited to,
restrictions specified by Rule 144 promulgated by Regulation S
promulgated by the Securities and Exchange Commission; and (iii) is
receiving the Exchange Shares without registration pursuant to the
Securities Act, in reliance on the exemption from registration specified
in Regulation S promulgated by the Securities and Exchange Commission for
investment, and without any intent to sell, resell, or otherwise
distribute the Exchange Shares in any manner that is in violation of the
Securities Act. The certificates representing the Exchange Shares, when
delivered to the Stockholders, may have appropriate orders restricting
transfer placed against them on the records of the transfer agent for
such securities, and may have placed upon them the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION,
(2) BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE
ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH
SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL
INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE SURVIVING CORPORATION'S RIGHTS PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C), (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO THE SURVIVING CORPORATION AND IN THE CASE OF
THE FOREGOING CLAUSE (D), A CERTIFICATE OF TRANSFER (A FORM OF WHICH MAY
BE OBTAINED FROM THE SURVIVING CORPORATION) COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE SURVIVING CORPORATION. HEDGING TRANSACTIONS WITH
REGARD TO THIS SECURITY MAY NOT BE CONDUCTED BY THE HOLDER HEREOF UNLESS
IN COMPLIANCE WITH THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Each Stockholder agrees not to attempt any transfer of any of the MSGR
shares without first complying with the substance of that legend and
agrees that the satisfaction of MSGR may, if MSGR so requests, depend in
part upon an opinion of counsel acceptable in form and substance to MSGR,
a no-action letter of the United States Securities and Exchange
Commission, or equivalent evidence. Each of the Stockholders
acknowledges, without limitation, that the foregoing agreement and
representation shall apply to the MSGR shares issued to such
Stockholders.
12. Notices
Any notice which any of the parties hereto may desire to serve upon any
of the other parties hereto shall be in writing and shall be conclusively
deemed to have been received by the party to whom addressed, if mailed,
postage prepaid, united states certified mail, to the following
addresses:
MetaSource Group, Inc.
00 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention of Xxxxxxxx Xxxxx, President
Stockholders: x/x
00 Xxxxxxxxxx Xxxxx
Xxxxxx
X0 0XX
If to Acquired Company:
0xx Xxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
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15. Successors
This Agreement shall be binding upon and inure to the benefit of the
heirs, personal representatives, successors, and assigns of the parties.
16. Indemnification
a) The Stockholders shall save MSGR and MSGR's agents, including its
attorneys, auditors, officers and directors harmless from and
against and shall indemnify MSGR for any liability, loss, costs,
expenses, or damages howsoever caused only to the extent that
such liability, loss, costs, expenses or damages
exceed(pound)50,000 (in which event the Stockholders will be
liable only for the excess over(pound)50,000) by reason of any
injury (whether to body, property, or personal or business
character or reputation) sustained by any person or to property
by reason of any act, neglect, default or omission of Acquired
Company or any of Acquired Company's agents, employees, or other
representatives, committed prior to the subject acquisition, and
the Stockholders shall pay all amounts to be paid or discharged
in case of an action or any such damages or injuries. If MSGR is
sued in any court for damages by reason of any of the acts of
Acquired Company or its Stockholders, Stockholders or such other
party shall defend the resulting action (or cause same to be
defended) at Stockholder's expense and shall pay and discharge
any judgment that may be rendered in any such action; if the
Stockholders fail or neglect to so defend in such action, MSGR
may defend such action and any expenses, including reasonable
attorneys' fees, which MSGR may pay or incur in defending such
action and the amount of any judgment which MSGR may be required
to pay shall be promptly reimbursed by the Stockholders upon
demand by MSGR.
b) Notwithstanding clause 16 (a) above, the Stockholders will
indemnify MSGR in full on against any actions, proceedings,
costs, claims, damages, penalties, compensation awards, orders,
liabilities and expenses of any nature arising out of the
termination of the employment howsoever caused of any employee of
the Acquired Company on or before the Closing Date and including
legal and other professional fees and expenses which relate to or
arise out of any breach or default by or unlawful act or omission
of the Stockholders or the Acquired Company in relation to any
employee of the Acquired Company up to and including the Closing
Date.
17. Governing Law
This agreement shall be construed and interpreted in accordance with the
laws of England and Wales without regard to its provisions concerning
choice of laws or choice of forum. The parties hereby irrevocably submit
themselves to the non-exclusive jurisdiction of England and Wales and
agree and consent that services of process may be made upon it in any
legal proceedings relating hereto by any means allowed under English law.
Executed in multiple counterparts, each of which shall be deemed a
duplicate original, as of the date first above written.
MetaSource
Group, Inc.
Corporate seal
Attest: by: /s/ Xxxxxxxx Xxxxx
------------------------------
Xxxxxxxx Xxxxx
Date: 4 Dec 02
----------------------------
/s/ Xxxxx Xxxxxxx
-----------------------------------------
Xxxxx Xxxxxxx
Appendix A
Shares Outstanding of Company: 20
Shares Held in Treasury: NIL
Stockholders of Record:
Name: XXXXX XXXXXXXXX XXXXXXX Shares Owned: 00
Xxxxxxxx X
FINANCIAL STATEMENTS OF ACQUIRED COMPANY
SCHEDULE
1 In this Schedule the following expressions shall have the following
meanings unless inconsistent with the context:
"Auditors" means the auditors employed by
MSGR at the end of Year 1 and
Year 2.
"Independent Accountant" means a single independent
chartered accountant or an
independent firm of
chartered accountants to be
agreed upon between MSGR and
the Stockholders or (in default
of such agreement) to be
selected (at the instance of
either of them) by the
President for the time being of
the Institute of Chartered
Accounts in England and Wales
"Year 1 Net Earnings" the net earnings for forward
twelve months determined in
accordance with this Schedule
"Year 2 Net Earnings" means the net earnings for the
following forward year
determined in accordance with
this Schedule
2 The Year 1 Net Earnings and Year 2 Net Earnings shall mean the profits
(less losses) as shown by the profit and loss account of the Acquired
Company (agreed or reported on in accordance with paragraph 4) for the
forward twelve months and following forward twelve months respectively,
such profit and loss accounts to be prepared in accordance with the
same bases and policies of accounting applied for the purpose of [the
first audited accounts of the Acquired Company] and with (to the extent
not inconsistent with the foregoing) accounting principles generally
accepted in the United Kingdom, provided they shall be adjusted so far
as necessary to take account of the following matters:
2.1 any taxation on profits shall not be deducted;
2.2 profits and losses shall be calculated after exceptional items and
before extraordinary items (as defined in financial reporting standard
No 3 adopted by the Accounting Standards Board, attached to this
Agreement as Schedule 2);
2.3 any management, administration or like charge made by MSGR shall not be
deducted save to the extent that it relates to costs incurred in the
preparation of the accounts of Metasource Group, Inc. only and not of
any holding company, subsidiary or the group of companies or where the
charge is incurred as a direct result of assistance requested by the
Stockholders (and in this Schedule "MSGR" shall where the context
permits be deemed to include any holding company for the time being of
MSGR and/or any subsidiary (other than the Acquired Company) for the
time being of MSGR or any such holding company);
2.4 any other adjustment as may be agreed in writing between the
Stockholders and MSGR shall be made.
3 MSGR covenants with the Stockholders that during the period commencing
on the date of this acquisition agreement and ending on the second
anniversary of the date of this acquisition agreement MSGR will procure
that non of the following will occur in respect of the Acquired
Company:
3.1 the removal of any of the Stockholders from their respective employment
as employees of the Acquired Company or any of its subsidiaries other
than in accordance with the terms of his employment agreement;
3.2 any material change in its trade or business unless the written consent
of the Stockholders is obtained, such consent not to be unreasonably
withheld and such consent is deemed to have been given if the
Stockholder has been fairly dismissed from the employment of MSGR for
gross misconduct or where the Stockholder has voluntarily left the
employment of MSGR;
3.3 the sale or other disposal of the whole or any substantial part of its
undertaking or assets (other than on the advice of licensed insolvency
practitioners) unless the written consent of the Stockholders is
obtained, such consent not to be unreasonably withheld and such consent
is deemed to have been given if the Stockholder has been fairly
dismissed from the employment of MSGR for gross misconduct or where the
Stockholder has voluntarily left the employment of MSGR;
3.4 the presentation of a petition for its liquidation or the passing of
any resolution for its winding up unless the written consent of the
Stockholders is obtained, such consent not to be unreasonably withheld
and such consent is deemed to have been given if the Stockholder has
been fairly dismissed from the employment of MSGR for gross misconduct
or where the Stockholder has voluntarily left the employment of MSGR;
3.5
3.6 the appointment of a receiver of a receiver and manager or
administrator over the whole or any part ofits assets and undertakings
unless the written consent of the Stockholders is obtained, such
consent not to be unreasonably withheld and such consent is deemed to
have been given if the Stockholder has been fairly dismissed from the
employment of MSGR for gross misconduct or where the Stockholder has
voluntarily left the employment of MSGR;any transaction with MSGR which
is not at arms length;
3.7 any change in the accounting policies normally adopted by it save for
such change as may be required from time to time to comply with legal
requirements of Statements of Standard Accounting Period;
3.8 the declaration of any dividend or the making or any other
distribution;
3.9 the diversion of any order or business opportunity fromthe Acquired
Company and its subsidiaries, as regards any Acquired Company client
acquired prior to the Closing Date, to MSGR;
3.10 any act or omission which would have the affect of diminishing the Year
1 Net Earnings or the Year 2 Net Earnings unless the written consent of
the Stockholders is obtained, such consent not to be unreasonably
withheld and such consent is deemed to have been given if the
Stockholder has been fairly dismissed from the employment of MSGR for
gross misconduct or where the Stockholder has voluntarily left the
employment of MSGR.
4 MSGR shall procure that:-
4.1 as soon as reasonably practicable following the end of the forward
twelve months the Auditors will prepare and deliver to the Stockholders
and MSGR a calculation of Year 1 Net Earnings showing the application
of the foregoing provisions of this Schedule. The Stockholders and MSGR
will then endeavor in good faith to agree in writing the amount of Year
1 Net Earnings. In the absence of agreement between the Stockholders
and MSGR as aforesaid within 20 Business Days after the Auditors
delivery of such calculation, either the stockholders or MSGR made by
notice in writing to the other require Year 1 Net Earnings to be
reviewed and reported upon by the Independent Accountants (whose costs
shall be paid as he or they shall direct and shall act as expert (and
not as arbitrator) in connection with the giving of such report, which
shall be binding except in the case of manifest error);
4.2 the Stockholder and the Stockholders' professional advisors shall have
the right to access to and copies (at their own expense) of the books
and accounts of the Acquired Company and its subsidiaries and such
other relevant information as will be requested by the Stockholders to
enable them to assess the calculations referred to in paragraph 4.1.
