Dated 25 April 2001 EXHIBIT 2.1
DAY RUNNER, INC (1)
DRI INTERNATIONAL HOLDINGS, INC (2)
DR UK HOLDINGS LIMITED (3)
DRBG UK LIMITED (4)
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SHARE PURCHASE AGREEMENT
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relating to the sale and purchase
of the whole of the issued share capital of
Day Runner UK Plc
XXXXXX, XXXX & XXXXXXXX
A MULTINATIONAL PARTNERSHIP OF
SOLICITORS AND REGISTERED FOREIGN LAWYERS
Xxxxxxxxx Xxxxx, 0-0 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX
Telephone: x00 (0)00-0000-0000
Fax: x00 (0)00-0000-0000
CONTENTS
Page
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2...............................................................................Agreement to Sell the Shares iv
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3...............................................................................Consideration and Adjustment iv
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4.................................................................................................Completion v
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5.................................................................................................Warranties v
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6...............................................................................Post Completion Relationship vi
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7.....................................................................................Protection of Goodwill vi
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8...............................................................................Whole Agreement and Remedies viii
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9...........................................................................................Other Provisions ix
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Schedule 1 Details of the Directors, the Company and the Subsidiaries.............................xvi
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Schedule 2 Completion Obligations................................................................xlii
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Schedule 3 Part I Warranties given by the Vendors under Clause 5..................................xlv
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Schedule 4 Limitation of Liability under Clause 5...............................................lviii
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Schedule 5 Properties lxiii
Schedule 6 Data Room lxiv
This Agreement is made on 25 April 2001
Between:
(1) DAY RUNNER, INC whose principal place of business is 0000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 - 0000, XXX; (2) DRI INTERNATIONAL HOLDINGS, INC whose
principal place of business is, 00000 Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxxxx, XXX;
(3) DR UK HOLDINGS LIMITED (registered no: 3309870) whose registered office is
00-00 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxx Xxxxxx,
XX00 0XX, XX;
parties (1) - (3) collectively, (the "Vendors"); and (4)
DRBG UK LIMITED (registered no: 4163587) whose registered office is at
0-0 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX, XX (the "Purchaser").
It is agreed as follows:
1 Interpretation
In this Agreement, unless the context otherwise requires, the
provisions in this Clause 1 apply:
1.1 Definitions
"Audited Accounts" means the audited accounts of the Company and of each of the
Subsidiaries and the audited consolidated group accounts of the Group for the
financial period ended on the Balance Sheet Date;
"Balance Sheet Date" means 30 June 2000;
"Company" means Day Runner UK Plc details of which are contained in Part 3 of
Schedule 1;
"Completion" means the completion of the sale and purchase of the Shares
pursuant to Clause 4;
"Completion Amount" means $11,358,599.33;
"Consideration" means the consideration payable to the Vendors pursuant to
Clause 3;
"Data Room" means the data room currently at the offices of the Vendors'
Solicitors, the contents of which are listed in Schedule 6, and which are fairly
disclosed as exceptions to the Warranties;
"Encumbrance" means any claim, charge, mortgage, security, lien, option, equity,
power of sale, hypothecation or other third party rights, retention of title,
right of pre-emption, right of first refusal or security interest of any kind
with the exception of liens arising by operation of law in the normal course of
business of any Group Company;
"Group" or "Group Companies" means the Company and the Subsidiaries and "Group
Company" means any one of them;
"Intellectual Property" means trade marks, service marks, trade names, logos,
get-up, patents, inventions, registered and unregistered design rights,
copyrights, database rights and all other similar proprietary rights which may
subsist in any part of the world including, where such rights are obtained or
enhanced by registration, any registration of such rights and applications and
rights to apply for such registrations;
"Loan Documentation" means the Second Amended and Restated Loan Agreement among
Day Runner, Inc, Day Runner UK Plc and Filofax Limited as Borrowers, Xxxxx Fargo
Bank, National Association, Bank of Scotland, Credit Agricole Indosuez, Mellon
Bank, NA, Oaktree Capital Management LLC and National Westminster Bank plc as
Lenders and Xxxxx Fargo Bank, National Association as Administrative Agent and
related documentation;
"Losses" means all losses, liabilities, costs (including, without limitation,
legal costs), charges, expenses, actions, proceedings, claims and demands;
"Properties" means the leasehold properties brief details of which are set out
in Schedule 5 and includes each and every part of them and "Property" means any
one of them;
"Purchaser's Solicitors" means Xxxxxx, Xxxx & Xxxxxxxx of Xxxxxxxxx Xxxxx, 0-0
Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX;
"Restricted Area" means the United Kingdom, Hong Kong, Europe and the Middle
East;
"Restricted Person" means any subsidiary of the Vendors and any holding company
of the Vendors and any subsidiary of such holding company (the expressions
"holding company" and "subsidiary " having the meaning detailed in section 736
of the Companies Act 1985);
"Shares" means 3,924,669 Ordinary Shares of (pound)10 each being the whole of
the issued share capital of the Company;
"Subsidiaries" means the subsidiaries of the Company details of which are
contained in Part 3 of Schedule 1;
"Taxation" or "Tax" means all forms of taxation whether direct or indirect and
whether levied by reference to income, profits, gains, net wealth, asset values,
turnover, added value or other reference and statutory, governmental, state,
provincial, local governmental or municipal impositions, duties, contributions,
rates and levies (including without limitation social security contributions and
any other payroll taxes), whenever and wherever imposed (whether imposed by way
of a withholding or deduction for or on account of tax or otherwise) and in
respect of any person and all penalties, charges, costs and interest relating
thereto;
"Taxation Benefits" means any Taxation benefit or advantage, including any loss,
relief, allowance, exemption, set-off, deduction or credit available in the
computation of any liability to Taxation;
"Vendors' Group" means Day Runner, Inc and its subsidiary companies, other than
the Group Companies plus Filofax, Inc and any of its subsidiaries;
"Vendors' Solicitors" means Linklaters & Alliance of Xxx Xxxx Xxxxxx, Xxxxxx
XX0X 0XX;
"Warranties" means the warranties and representations set out in Schedule 3 and
"Warranty" means any one of them.
1.2 Subordinate Legislation
References to a statutory provision include any subordinate legislation
made from time to time under that provision which is in force at the
date of this Agreement;
1.3 Modification etc. of Statutes
References to a statute or statutory provision include that statute or
provision as from time to time modified, re-enacted or consolidated
whether before or after the date of this Agreement so far as such
modification, re-enactment or consolidation applies or is capable of
applying to any transactions entered into in accordance with this
Agreement prior to Completion and (so far as liability thereunder may
exist or can arise) shall include also any past statute or statutory
provision (as from time to time modified, re-enacted or consolidated)
which such statute or provision has directly or indirectly replaced
except to the extent that any statute or statutory provision made or
enacted after the date of this Agreement would create or increase a
liability of the Vendors under this Agreement;
1.4 Accounts
Any reference to "accounts" shall include the directors' and auditors'
reports, relevant balance sheets and profit and loss accounts and
related notes together with all documents which are or would be
required by law to be annexed to the accounts of the company concerned
to be laid before that company in general meeting in respect of the
accounting reference period in question;
1.5 Interpretation Xxx 0000
The Interpretation Act 1978 shall apply to this Agreement in the same
way as it applies to an enactment;
1.6 Clauses, Schedules etc.
References to this Agreement include any Schedules to it and references
to Clauses and Schedules are to Clauses of and Schedules to this
Agreement. References to paragraphs are to paragraphs of the Schedules;
1.7 Information
Any reference to books, records or other information means books,
records or other information in any form including paper,
electronically stored data, magnetic media, film and microfilm; and
1.8 Headings
Headings shall be ignored in construing this Agreement.
2 Agreement to Sell the Shares
The Vendors (each as to those of the Shares specified against its name
in Part 1 of Schedule 1) agree to sell with full title guarantee and
the Purchaser, relying on the Warranties, agrees to purchase the Shares
free from all Encumbrances, subject to any pledges, charges and
mortgages which may be in existence under the Loan Documentation on
Completion, and together with all rights and advantages now and
hereafter attaching thereto.
3 Consideration and Adjustment
3.1 Amount
The Consideration for the purchase of the Shares and assignment of the
intra-group indebtedness (pursuant to Clause 3.3) shall be
$11,358,599.33, subject to any adjustment pursuant to Clauses 3.2 .
3.2 Consideration Uplift
In the event that the Company or Filofax Group Limited is sold by the
Purchaser to a third party within a period of twelve months from the
date of Completion, the Consideration shall be increased by an amount
("the Consideration Uplift") equal to that which would result in the
amount payable under this Agreement matching that payable on any such
resale. Any Consideration Uplift shall be payable in the same manner as
the Consideration.
3.3 Intra-Group Indebtedness
3.3.1 The Vendors and the Purchaser shall use best endevours to agree, in
good faith, the precise inter-company loan position as at the date of
Completion between the members of the Vendors' Group and each member of
the Group plus Filofax, Inc (and its subsidiaries) (save only in
respect of normal current account trading) within two weeks of
Completion and produce a schedule of such ("the Inter-Company
Schedule").
3.3.2 The Vendors, on behalf of themselves and each and every member of the
Vendors' Group, hereby transfer and assign to the Purchaser, with full
title guarantee, the legal and beneficial title free of all
Encumbrances, each and all of the inter-company loans identified on
the Inter-Company Schedule in the aggregate amount outstanding between
the Vendors' Group and the Group plus Filofax, Inc (and its
subsidiaries) ("the Inter-Company Debt"). Each of the Vendors, on
behalf of themselves and each member of the Vendors' Group, confirm
and acknowledge that following assignment of the Inter-Company Debt
pursuant to this Clause, the Vendors' Group shall have no further
rights of claim against the Group plus Filofax, Inc (and its
subsidiaries) in respect of the inter-company loans between the
Vendors' Group and the Group plus Filofax, Inc and its subsidiaries.
4 Completion
4.1 Date and Place
Completion shall take place at the offices of the Purchaser's
Solicitors immediately on the signing of this Agreement or at such
other place as may be agreed between the Vendors' Solicitors and the
Purchaser's Solicitors on behalf of the Purchaser. Completion shall
take place simultaneously with the sale of Filofax, Inc from Day
Runner, Inc to DRBG LLC.
4.2 Obligations on Completion
On Completion, the parties shall procure that the obligations specified
in Schedule 2 are fulfilled and in so far as such obligations are not
fulfilled by Completion, they shall be fulfilled within 2 weeks of
Completion, except for paragraphs 1.1.1 to 1.1.5, 1.2.2 and 1.2.3 of
Schedule 2 which must be satisfied on Completion, unless waived in
writing by the Purchaser.
4.3 Payment of Price
Against compliance with the foregoing provisions, the Purchaser shall
pay the Completion Amount to the Vendors. DRI International Holdings,
Inc and DR UK Holdings Limited hereby assert that they have each, at
all material times, held their respective shares in the Company as a
nominee on behalf of Day Runner, Inc and hereby direct the Purchaser to
pay their respective portions of the Consideration to Day Runner, Inc,
whose acknowledgment shall be sufficient discharge for the Purchaser's
obligation under this Clause.
5 Warranties
5.1 Incorporation of Schedule 3
.........
5.1.1 Each of the Vendors warrants and represents to the
Purchaser in the terms set out in Part 1 of Schedule 3
subject only to:
(i) any matter which is fairly disclosed in the documents
made available in the Data Room and any matter
referred to in the Audited Accounts or expressly
provided for under the terms of this Agreement; and
(ii) any matter or thing hereafter done or omitted to be
done pursuant to this Agreement or otherwise at the
request in writing or with the approval in writing of
the Purchaser.
5.1.2 The Purchaser warrants and represents to the Vendors in the
terms set out in Part 2 of Schedule 3.
5.2 Limitation of Liability
The provisions of Schedule 4 shall apply.
5.3 Effect of Completion
The Warranties and all other provisions of this Agreement insofar as
the same shall not have been performed at Completion shall not be
extinguished or affected by Completion, or by any other event or matter
whatsoever, except by a specific and duly authorised written waiver or
release by the Purchaser.
6 Post Completion Relationship
6.1 The Vendors and the Purchaser agree to work together in good faith following
Completion to enter into any agreements or arrangements which are reasonably
necessary to:
6.1.1 Transfer to the Vendors any interest or rights which relate
exclusively to the "Day Runner" brand, which either the Vendor
or the Purchaser considers should not be within the Group;
6.1.2 Continue the business of the Company and/or the subsidiaries
around the world, and in particular, (without limitation), for
a period of up to 12 months from the date of this Agreement,
make available office space on reasonable terms to enable the
Filofax operation in Hong Kong to continue in substantially
the same manner as it does at the date of this Agreement; and
6.1.3 Obtain any consents of any third parties which may be
necessary under any of the contracts of the Vendors (and their
subsidiaries) and/or the Group which are necessary for the
proper operation of the Company.
6.2 The Vendors and the Purchaser acknowledge that the Consideration has
been determined after taking into account the provisions of Clause 6.1,
and no further consideration shall be payable by the Purchaser to the
Vendors (or to any other person) in respect of any of the transfers
referred to in Clause 6.1.2 and no consideration shall be payable by
the Vendors to the Purchaser (or any other person) in respect of the
transfers referred to in clause 6.1.1.
7 Protection of Goodwill
7.1 The Vendors undertake to the Purchaser that without the written
consent of the Purchaser (such consent to be at the sole and
unfettered discretion of the Purchaser):
7.1.1 for a period of 18 months from Completion they will not and
will procure that no Restricted Person will in any capacity
whatsoever directly or indirectly carry on or assist in
carrying on or be engaged, concerned or interested in any
activity or undertaking which is the same as, or which
competes directly with, the business of any member of the
Group within the Restricted Area provided that none of the
Vendors nor any Restricted Person will be prohibited by this
Clause from carrying on or being engaged, concerned or
interested in any activity or undertaking related to "Day
Runner" branded products in the Restricted Area; and
7.1.2 for a period of 18 months from Completion they will not and
will procure that no Restricted Person will directly, solicit
or endeavour to entice away, offer employment to, engage or
contract for the services of any employee who is an employee
of the Purchaser or of any member of the Group at the time of
any such approach or contact and who is a senior employee
earning in excess of (pound)40,000 (or equivalent in another
currency) per annum. The placing of an advertisement of a post
available to a member of the public generally and the
recruitment of a person through an employment agency shall not
constitute a breach of this Clause provided that none of the
Vendors advises such agency to approach any such employee;
7.1.3 other than in relation to any customer of "Day Runner"
branded products at the date of this Agreement, for a period
of 18 months from Completion they will not and will procure
that no Restricted Person will at any time in the
Restricted Area for the purpose of any business competing
with the business of any member of the Group as at Completion,
endeavour to entice away as a customer of the Purchaser or
of any member of the Group any person who during the
period of 12 months prior to the date of this Agreement has
been a customer of any member of the Group who has not in that
12 month period bought, leased or distributed any "Day Runner"
branded goods. The advertising or indirect marketing by the
Vendors' Group of the Vendors' Group's products and services
shall not constitute a breach of this Clause.
7.2 Nothing in sub-Clause 7.1 above shall prevent the Vendors or any
Restricted Person (and there shall not be a breach of the
above provisions if any such person shall do any of the same):
7.2.1 owning not more than three per cent of any class of the issued
share capital of a company which is dealt in on a recognised
investment exchange (as defined in the Financial Services Act
1986); or
7.2.2 soliciting, canvassing or otherwise dealing with customers or
suppliers of any member of the Group otherwise than in
connection with a business which competes with the business of
that member of the Group.
7.3 Each of the undertakings contained in this Clause 7 is separate and
severable and shall be construed on that basis. In the event that any
such undertaking is found to be void but would be valid if some part of
it were deleted or if the period or extent of it were reduced such
undertaking shall apply with such modification as may be necessary to
make it valid and effective.
7.4 The Vendors undertake to the Purchaser that neither one of the Vendors
nor any Restricted Person shall at any time following the date of
Completion in connection with any business use the names "Filofax" or
Microfile" or "Yard-o-Led", or any names or words similar to or likely
to be confused with any of them.
7.5 The Vendors by their execution hereof hereby agree that having regard,
inter alia, to the price paid by the Purchaser for the Group, the
undertakings contained in this Clause 7 are reasonable and necessary
for the legitimate interests of the Purchaser and that having regard to
those circumstances those covenants do not work harshly or oppressively
on them.
7.6 The Purchaser undertakes to the Vendors that without the written
consent of the Vendors it will not and will procure that no Group
Company (including Filofax, Inc and its subsidiaries) will in any
capacity whatsoever directly or indirectly carry on or assist in
carrying on or be engaged, concerned or interested in the sale, leasing
or distribution of any "Day Runner" branded products except to the
extent that the Group Companies (including Filofax, Inc and its
subsidiaries) shall be permitted:
7.6.1 to sell any "Day Runner" branded products owned or ordered by
them at the date of this Agreement; and
7.6.2 to order any "Day Runner" branded replacement papers dated
"2002" prior to December 31, 2001 and sell such replacement
papers..
8 Whole Agreement and Remedies
8.1 Whole Agreement
This Agreement contains the whole agreement between the parties
relating to the subject matter of this Agreement at the date hereof to
the exclusion of any terms implied by law which may be excluded by
contract and supersedes any previous written or oral agreement between
the parties in relation to the matters dealt with in this Agreement.
8.2 Acknowledgement
The Purchaser acknowledges that it has not been induced to enter into
this Agreement by any representation, warranty or undertaking not
expressly incorporated into it.
8.3 Remedies
So far as permitted by law and except in the case of fraud, each party
agrees and acknowledges that its only right and remedy in relation to
any representation, warranty or undertaking made or given in connection
with this Agreement shall be for breach of the terms of this Agreement
to the exclusion of all other rights and remedies (including those in
tort or arising under statute).
8.4 Reasonableness of this Agreement
Each party to this Agreement confirms it has received independent legal
advice relating to all the matters provided for in this Agreement,
including the provisions of Clause 7, and agrees, having considered the
terms of the Agreement as a whole, that its provisions are fair and
reasonable.
9 Other Provisions
9.1 Announcements
No announcement or circular in connection with the existence or the
subject matter of this Agreement shall be made or issued by or on
behalf of the Vendors or the Purchaser without the prior written
approval of the Vendors and the Purchaser (such consent not to be
unreasonably withheld or delayed). This shall not affect any
announcement or circular required by law or any regulatory body or the
rules of any recognised stock exchange but the party with an obligation
to make an announcement or issue a circular shall consult with the
other party insofar as is reasonably practicable before complying with
such an obligation.
9.2 Confidentiality
......... .........
9.2.1 Subject to Clause 9.2.3, the Vendors shall treat as
confidential and not disclose or use any information received
or obtained as a result of entering into this Agreement (or
any agreement entered into pursuant to this Agreement) which
relates to:
(i) the provisions of this Agreement and any agreement
entered into pursuant to this Agreement; or
(ii) the negotiations relating to this Agreement (and
such other agreements); or
(iii) the Purchaser's business, financial or other
affairs (including the business, financial or
other affairs of the Group Companies and
including, in each case, future plans and
targets).
9.2.2 Subject to Clause 9.2.3, the Purchaser shall treat as
confidential and not disclose or use any information received
or obtained as a result of entering into this Agreement (or
any agreement entered into pursuant to this Agreement) which
relates to:
(i) the provisions of this Agreement and any agreement
entered into pursuant to this Agreement (save for
any information disclosed to any permitted
assignee pursuant to Clause 9.3); or
(ii) the negotiations relating to this Agreement (and
such other agreements); or
(iii) any Vendor's business, financial or other affairs
(including future plans and targets).
9.2.3 Clauses 9.2.1 and 9.2.2 shall not prohibit disclosure
or use of any information if and to the extent:
(i) the disclosure or use is required by law, any
regulatory body or the rules and regulations of
any recognised stock exchange;
(ii) the disclosure or use is required to vest the full
benefit of this Agreement in the Vendors or the
Purchaser, as the case may be;
(iii) the disclosure or use is required for the purpose
of any judicial proceedings arising out of this
Agreement or any other agreement entered into
under or pursuant to this Agreement or the
disclosure is reasonably required to be made to a
taxation authority in connection with the taxation
affairs of the disclosing party;
(iv) the disclosure is made to professional advisers of
the Purchaser or the Vendors on terms that such
professional advisers undertake to comply with the
provisions of Clauses 9.2.1 and 9.2.2 in respect
of such information as if they were a party to
this Agreement;
(v) the information becomes publicly available (other
than by breach of the this Agreement);
(vi) the other party has given prior written approval
to the disclosure or use; or
(vii) the information is independently developed after
Completion,
provided that prior to disclosure or use of any information
pursuant to Clause 9.2.3(i), (ii), (iii) (except in the case
of disclosure to a taxation authority) or (iv), the party
concerned shall promptly notify the other party of such
requirement with a view to providing the other party with the
opportunity to contest such disclosure or use or otherwise to
agree the timing and content of such disclosure or use.
9.2.4 On Completion, the Vendors shall assign to the Purchaser, or
shall procure the assignment of, the benefit of any
confidentiality agreements entered into by the Vendors in
connection with its sale of the Shares to the extent permitted
by the terms of the relevant agreements.
9.3 Successors and Assigns
9.3.1 This Agreement is personal to the parties to it. Accordingly,
subject only to Clause 9.3.2, neither the Purchaser nor the
Vendors may, without the prior written consent of the others
assign, hold on trust or otherwise transfer the benefit of all
or any of the other's obligations under this Agreement, or any
benefit arising under or out of this Agreement nor shall the
Purchaser be entitled to make any claim against the Vendors in
respect of any loss which it does not suffer in its own
capacity as beneficial owner of the Shares.
9.3.2 Notwithstanding Clause 9.3.1, the Purchaser may assign the
full benefit and the full burden under this Agreement to one
subsequent purchaser of: (i) the Company (or any of the
Subsidiaries) or substantially all of their business; (ii) the
Purchaser; or (iii) the Purchaser's parent company, providing
that such assignment is made within 18 months of Completion.
The Vendors hereby give their consent to any such assignment.
9.4 Third Party Rights
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of
this Agreement.
9.5 Variation
No variation of this Agreement shall be effective unless in writing and
signed by or on behalf of each of the parties to this Agreement.
9.6 Time of the Essence
Time shall be of the essence of this Agreement both as regards any
dates and periods mentioned and as regards any dates and periods which
may be substituted for them in accordance with this Agreement or by
agreement in writing between the parties.
9.7 Further Assurance
9.7.1 At any time after the date of this Agreement the Vendors shall
and shall use their best endeavours to procure that any
necessary third party shall execute such documents and do such
acts and things as the Purchaser may reasonably require for
the purpose of giving to the Purchaser the full benefit of all
the provisions of this Agreement.
9.7.2 The Vendors undertake to provide the Purchaser after
Completion (at the Purchaser's cost) with all reasonable
information which the Vendors or any member of the Vendors'
Group have in their possession or under its control relating
to the Company and/or the Subsidiaries and for this purpose
the Vendors shall give the Purchaser and any persons
authorised by the Purchaser reasonable access to all such
information, during normal working hours and upon reasonable
notice and the Purchaser may, at its own expense, copy any
such documents.
9.7.3 The Vendors at the cost of the Purchaser shall at any time
after Completion do or procure the doing of all such acts and
things and/or execute or procure the execution of such
documents in a form satisfactory to the Purchaser as the
Purchaser reasonably considers necessary for the purpose of
vesting the Shares in the Purchaser.
9.7.4 The Purchaser undertakes to provide and procure that the Group
Companies provide the Vendors after Completion (at the
Vendors' cost) with all reasonable information concerning the
Group which the Vendors may require in order to enable them to
comply with any law, rule, regulation or administrative
practice of any government, governmental department, agency or
regulatory body.
9.8 Costs
9.8.1 Subject to Clause 9.8.2, the Vendors shall bear all costs
incurred by them and the Group in connection with the
preparation, negotiation and entry into of this Agreement and
the sale of the Shares. The Vendors shall indemnify the
Purchaser against any professional fees incurred by the
Company prior to the date of Completion and in connection with
fulfillment of any of the Vendors' obligations under this
Agreement in relation to the proposed sale of Filofax Group
Limited. The Purchaser shall bear all such costs incurred by
it.
9.8.2 Costs to be borne by the Vendors pursuant to Clause 9.8.1
shall not include any costs incurred by the Vendors or the
Group in connection with any payment that falls due to Xxxxxxx
Xxxx and/or Xxxxxxxxxxx Xxxxx as a consequence of the sale of
the Shares.
9.9 Interest
If the Vendors or the Purchaser default in the payment when due of any
sum payable under this Agreement (howsoever determined) the liability
of the Vendors or the Purchaser (as the case may be) shall be increased
to include interest on such sum from the date when such payment is due
until the date of actual payment (as well after as before judgement) at
a rate per annum of 1 per cent above LIBOR as quoted from time to time
by The Royal Bank of Scotland PLC. Such interest shall accrue from day
to day.
9.10 Notices
9.10.1 Any notice or other communication in connection with
this Agreement shall be in writing in English (a "Notice") and
shall be sufficiently given or served if delivered or sent:
in the case of each of the Vendors to Day Runner, Inc at:
Address: Day Runner, Inc
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx; Xxxxxxxxx Xxxxxxxxx
Fax: 000 (000) 000 0000
Attention: Chief Executive Officer /Chairman
With additional copies of Notices to:
Address: Linklaters & Alliance
Xxx Xxxx Xxxxxx
Xxxxxx
XX0X 0XX
XX
Fax: x00 00 0000 0000
Attention: Xxxxxx XxXxxxxxxx / Xxxxxxxx Xxxxxx
in the case of the Purchaser to DRBG UK Limited at:
Address: c/o Filofax Group Limited,
Xxxxxxxx Xxxxx,
0/00 Xxxx Xxxxxx,
Xxxxxx,
X0X 0XX
XX
Fax: x00 0000 000000
Attention: The Company Secretary
With additional copies of Notices to (such
address not being the valid place for
service):
Xxxxxx, Xxxx & Xxxxxxxx, LLP
Xxxxxxxxx Xxxxx
0-0 Xxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Fax : 00 (0) 00 0000 0000
Attention: Xxxxxx Xxxxxxxx
or (in either case) to such other address or fax number in the
United Kingdom as the relevant party may have notified to the other in
accordance with this Clause. In particular, in relation to any court
proceeding, the London office of the Vendors' solicitors can accept
service of any proceedings.
9.10.2 Any notice may be delivered by hand or, sent by fax or
prepaid first class post (first class in the case of service
in the United Kingdom and airmail in the case of international
service). Without prejudice to the foregoing, any Notice shall
conclusively be deemed to have been received on the next
working day in the place to which it is sent, if sent by fax,
or 60 hours from the time of posting, if sent by post, or at
the time of delivery, if delivered by hand.
9.11 Invalidity
If any term in this Agreement shall be held to be illegal, invalid or
unenforceable, in whole or in part, under any enactment or rule of law,
such term or part shall to that extent be deemed not to form part of
this Agreement but the legality, validity or enforceability of the
remainder of this Agreement shall not be affected.
9.12 Counterparts
This Agreement may be entered into in any number of counterparts, all
of which taken together shall constitute one and the same instrument.
Any party may enter into this Agreement by executing any such
counterpart.
9.13 Governing Law and Submission to Jurisdiction
9.13.1 This Agreement and the documents to be entered into
pursuant to it, save as expressly referred to therein, shall
be governed by and construed in accordance with English law.
9.13.2 All the parties irrevocably agree that the courts of
England are to have exclusive jurisdiction to settle any
dispute which may arise out of or in connection with this
Agreement and the documents to be entered into pursuant to it.
[Intentionally left blank]
In witness whereof this Agreement has been duly executed.
SIGNED by ......... )
for and on behalf of....... )
DAY RUNNER, INC ......... )
SIGNED by ......... )
for and on behalf of....... )
DRI INTERNATIONAL ......... )
HOLDINGS, INC ......... )
SIGNED by ......... )
for and on behalf of....... )
DR UK HOLDINGS LIMITED..... )
SIGNED by ......... )
for and on behalf of....... )
DRBG UK LIMITED ......... )
Schedule 1
Part 1
Shares Sold by each Vendor
Vendor Shares Sold
Day Runner, Inc 3,919,668
DRI International Holdings, Inc 1
DR UK Holdings Limited 5,000
Part 2
Particulars of Directors of the Company
Full Names Usual Address
Xxxx Xxxxxxx Xxxxxx 00 Xxxxxxxxxx Xxxxx,
Xxxxxxxx,
Xxxxxxxx,
00000 XXX
Xxxxx Xxxxxxx Xxxxxx 00000 Xxxxxxx
Xxxxxxx Xxxxx
00000
Xxxxxxxxxx
XXX
Part 3
Particulars of the Company
Registered Number: 3309833
Registered Office: 0xx Xxxxx Xxxxxxxx House
0-00 Xxxx Xxxxxx
Xxxxxx
XxX 0XX
Date and place of incorporation: 24/01/97 - England & Wales
Secretary: X. Xxxxxxxxx
VAT Number:
Tax District and Reference Number:
Accounting Reference Date: 30 June
Auditors: Deloitte & Touche
Solicitors Linklaters & Alliance
Authorised Share Capital: 10,000,000 ordinary shares of
(pound)10 each
Issued and fully paid-up Share Capital: 3,924,669 ordinary shares of
(pound)10 each
Part 4
Particulars of the Subsidiaries
Filofax Group Limited
Registered Number: 00175064
Registered Office: Xxxxxxxx Xxxxx
0-00 Xxxx Xxxxxx
Xxxxxx XxX 0XX
Date and place of incorporation: 06/06/1921 - England & Wales
Secretary: Xxxxxxx Xxxx
Directors Xxxxxxx Xxxx
Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxx
Xxxxx X Xxxxxx
VAT Number: 5970 52219
Tax District and Reference Number: 571 73430 10006
Accounting Reference Date: 30 June
Auditors: Deloitte & Touche
Solicitors: Linklaters & Alliance
Authorised Share Capital: (pound)2,500,000 divided into
50,000,000 Ordinary Shares
of 5p each
Issued and fully paid-up Share Capital: 25,124,059 Ordinary Shares
of 5p each
Filofax Ltd
Registered Number: 01891062
Registered Office: c/o Filofax Group Ltd
Waverley House
7-12 Xxxx Street
London, Wl F 8NE
Date and place of incorporation: 01/03/1985 - England & Wales
Directors: Xxxxxxx Xxxx, Xxxxxxxxxxx
Xxxxx
Secretary: Xxxxxxx Xxxx
VAT Number: 59705 2219
Tax District and Reference Number: 571 83430 04779
Accounting Reference Date: 30 June
Auditors: Deloitte & Touche
Solicitors: Linklaters & Alliance
Authorised Share Capital: (pound)l00,000 divided into
100,000 Ordinary Shares
of(pound)l each
Issued and fully paid-up Share Capital: 100 Ordinary Shares of(pound)
l each
Shareholders No. of Shares
Filofax Group Ltd 100
Drakes Office Systems Ltd
Registered Number: 01239536
Registered Office: c/o Filofax Group Ltd
Xxxxxxxx Xxxxx
0-00 Xxxx Xxxxxx
Xxxxxx, XxX 0XX
Date and place of incorporation: 06/01/1976 - England & Wales
Directors: Xxxxxxx Xxxx,
Xxxxxxxxxxx Xxxxx
Secretary: Xxxxxxx Xxxx
VAT Number: 597052219
Tax District and Reference Number: 571 82720 19475
Accounting Reference Date: 30 June
Auditors: Deloitte & Touche
Solicitors: Linklaters & Alliance
Authorised Share Capital: (pound)50,000 divided into
50,000 Ordinary Shares of
(pound)1 each
Issued and fully paid-up Share 1,000 Ordinary Shares of
Capital: (pound)1 each
Shareholders No. of Shares
Filofax Group Ltd 1,000
Filofax France Ltd
Registered Number: 2741286
Registered Office: c/o Filofax Group Ltd
Waverley House
7-12 Xxxx Street
London, Wl F 8NE
Date and place of incorporation: 14/08/1992 - England &
Wales
Directors: Xxxxxxx Xxxx and
Xxxxxxxxxxx Xxxxx
Secretary: Xxxxxxx Xxxx
VAT Number: Not registered
Tax District and Reference Number: 571 83430 04975
Accounting Reference Date: 30 June
Auditors: Deloitte & Touche
Solicitors: Linklaters & Alliance
Authorised Share Capital: (pound)20 divided into 400
Ordinary Shares of 5p each
Issued and fully paid-up Share Capital: 100 Ordinary Shares of
5p each
Shareholders No. of Shares
Filofax Ltd 100
Drakeplan Ltd
Registered Number: 3226778
Registered Office: c/o Filofax Group Ltd
Waverley House
7-12 Xxxx Street
London, Wl F 8NE
Date and place of incorporation: 18/07/1996 - England &
Wales
Directors: Xxxxxxx Xxxx and
Xxxxxxxxxxx Xxxxx
Secretary: Xxxxxxx Xxxx
VAT Number: Not registered
Tax District and Reference Number: 000 00000 00000
Accounting Reference Date: 30 June
Auditors: Deloitte & Touche
Solicitors: Linklaters & Alliance
Authorised Share Capital: (pound)1,000 divided
into 1,000 Ordinary
Shares of (pound)1 each
Issued and fully paid-up Share Capital: 2 Ordinary Shares of
(pound)2 each
Shareholders No. of Shares
Filofax Limited 2
Filofax Pension Trustee Ltd
Registered Number: 3751485
Registered Office: c/o Filofax Group Ltd
Xxxxxxxx Xxxxx
0-00 Xxxx Xxxxxx
Xxxxxx, XxX 0XX
Date and place of incorporation: 13/04/1999 - England and
Wales
Directors: Xxxxxxx Xxxx and
Xxxxxxxxxxx Xxxxx
Secretary: Xxxxxxx Xxxx
VAT Number: Not registered
Tax District and Reference Number: 571 1137 02827
Accounting Reference Date: 30 June
Auditors: Deloitte & Touche
Solicitors: Linklaters & Alliance
Authorised Share Capital: (pound)1 divided into 1
Ordinary Shares of 1 each
Issued and fully paid-up Share 1 Ordinary Shares of
Capital:(pound)l each
Shareholders No. of Shares
Filofax Limited 1
Baybond Limited
Registered Number: 2364396
Registered Office: Filofax Group Ltd
Xxxxxxxx Xxxxx
0/00 Xxxx Xxxxxx
Xxxxxx XxX 0XX
Date and place of incorporation: 22/03/1989
Directors: Xxxxxxx Xxxx and
Xxxxxxxxxxx Xxxxx
Secretary: Xxxxxxx Xxxx
VAT Number: Not registered
Tax District and Reference Number: 000 00000 00000
Accounting Reference Date: 30 June
Auditors: Deloitte & Touche
Solicitors: Linklaters & Alliance
Authorised Share Capital: (pound)10,000 divided into
10,000 Ordinary Shares of
(pound)l each
Issued and fully paid-up Share Capital: (pound)100 Ordinary Shares
of(pound)l each
Shareholders No. of Shares
Topps of England Ltd 100
NOTE: NON-TRADING COMPANY
Elijo Limited
Registered Number: 2690189
Registered Office: c/o Filofax Group Ltd
Waverley House
0/00 Xxxx Xxxxxx
Xxxxxx XxX 0XX
Date and place of incorporation: 24/02/1992 - England and
Wales
Directors: Xxxxxxx Xxxx and
Xxxxxxxxxxx Xxxxx
Secretary: Xxxxxxx Xxxx
VAT Number: Not registered
Tax District and Reference Number: 27080 11577
Accounting Reference Date: 30 June
Auditors: Deloitte & Touche
Solicitors:
Authorised Share Capital: (pound)1,286,650 divided
into 12,866,500 Ordinary
Shares of 10p each
Issued and fully paid-up Share Capital: 12,745,000 Ordinary Shares
of 10p each
Shareholders No. of Shares
Filofax Group Limited 12,744,999
Filofax Group Limited and Xxxxx Xxxxx 1
NOTE: NON-TRADING COMPANY
Elijo (London) Limited
(formerly known as
Xxxxx Xxxx and Son (London) Ltd)
Registered Number: 502562
Registered Office: c/o Filofax Group Ltd
Waverley House
0/00 Xxxx Xxxxxx
Xxxxxx XxX 0XX
Date and place of incorporation: 20.12.1951 - England and Wales
Directors: Xxxxxxx Xxxx and Xxxxxxxxxxx Xxxxx
Secretary: Xxxxxxx Xxxx
VAT Number: Not registered
Tax District and Reference Number: 571 37080 12315
Accounting Reference Date: 30 June
Auditors: Deloitte & Touche
Solicitors: Linklaters & Alliance
Authorised Share Capital: (pound)6,000 divided into 6,000
Ordinary Shares of (pound)1 each
Issued and fully paid-up Share Capital: 6,000 Ordinary Shares of(pound)1
each
Shareholders No. of Shares
Elijo Ltd 6,000
Lefax Publishing Limited
Registered Number: 2268439
Registered Office: c/o Filofax Group Ltd
Waverley House
7/12 Xxxx Street
London Wl F 8NE
Date and place of incorporation: 16/06/1988 - England and Wales
Directors: Xxxxxxx Xxxx and Xxxxxxxxxxx Xxxxx
Secretary: Xxxxxxx Xxxx
VAT Number: Not registered
Tax District and Reference Number: 23470 22402
Accounting Reference Date: 30 June
Auditors: Deloitte & Touche
Solicitors: Linklaters & Alliance
Authorised Share Capital: (pound)701,947.00 divided into
701,947 Ordinary Shares of(pound)1
each
Issued and fully paid-up Share Capital: 701,947 Ordinary Shares of(pound)
1 each
Shareholders No. of Shares
Filofax Ltd 701,947
NOTE: NON-TRADING COMPANY
Yard-O-Led Pencil Company Limited
Registered Number: 284373
Registered Office: c/o Filofax Group Ltd
Waverley House
7/12 Xxxx Street London
Wl F 8NE
Date and place of incorporation: 3/2/1934 - England & Wales
Directors: Xxxxxxx Xxxx, Xxxxxxxxxxx Xxxxx
and Xxxxxxx Xxxxxxx
Secretary: Xxxxxxx Xxxx
VAT Number: 59705 2219
Tax District and Reference Number: 23430 14702
Accounting Reference Date: 30 June
Auditors: Deloitte & Touche
Solicitors: Linklaters & Alliance
Authorised Share Capital: (pound)100 divided into 100
Ordinary Shares of (pound)l each
Issued and fully paid-up Share Capital: 100 Ordinary Shares of(pound)
l each
Shareholders No. of Shares
Filofax Group Ltd 49
Tufnell Investments Ltd 51
100
NOTE: NON-TRADING COMPANY
Topps of England Limited
Registered Number: 596813
Registered Office: c/o Filofax Group Ltd
Waverley House
0/00 Xxxx Xxxxxx
Xxxxxx XxX 0XX
Date and place of incorporation: 9/l/1958 - England & Wales
Directors: Xxxxxxx Xxxx and Xxxxxxxxxxx
Xxxxx
Secretary: Xxxxxxx Xxxx
VAT Number: 000 00000 00000
Accounting Reference Date: 30 June
Auditors: Deloitte & Touche
Solicitors: Linklaters & Alliance
Authorised Share Capital: (pound)500,000 divided into
341,000 Ordinary Shares of
(pound)1 each and 159,000
Deferred Shares of(pound)1 each
Issued and fully paid-up Share Capital: 91,000 Ordinary Shares of
(pound)l each and 159,000
Deferred Shares of (pound)1 each
Shareholders No. of Shares
Filofax Group Ltd 91,000 Ordinary Shares
[SEARCH STATES THIS AS 159,000 Deferred Shares
FILOFAX GROUP PLC] _____________________
250,000
NOTE: NON-TRADING COMPANY
Filofax Hong Kong Ltd
Incorporation Number: 427034
29th floor Win On Centre
Registered Office: 00 Xxxxxxxxx Xxxx Xxxxxxx
Xxxx Xxxx
Date and place of incorporation: 10/06/1993 - Hong Kong
Xxxxxx X.X. Xxxx, Xxxxxxx
Principals: Company Limited and
Xxxxxxxxxxx Xxxxx
Secretary: McCable Secretarial Services
Limited
VAT Number: N/A
Tax District and Reference Number: N/A
Accounting Reference Date: N/A
Auditors: BDO XxXxxx Lo & Company
Solicitors: N/A
Authorised Share Capital: HK$10,000 divided into
10,000 Ordinary Shares of
HK$1.00 each
Issued and fully paid-up Share Capital: 2 Ordinary Shares of HK$1.00 each
Shareholders No. of Shares
Filofax Group Ltd 1
Filofax Limited 1
FilofaxAB
Registered Number: 556471-1199
Registered Office: Xxx 0000, 0-00000, Xxxxxx
Date and place of incorporation: 29/07/1993 - Sweden
Directors: Bjorn-Xxxxxx Xxxxxx,
Xxxxxxxxxxx Xxxxx,
Xxxxxx Xxxxxxxx and Xxxxxxx
Xxxx (elected, but not
registered by
authority). Deputy Director
- Xxxxxxx Xxxxxxxxxx
Secretary: None
SE556471119901 (Sweden)
VAT Number: FI10632183 (Finland)
DK20801832
556 471-1199 (Sweden)
Tax District and Reference Number: 688,043 (Finland)
244.914 (Denmark)
Accounting Reference Date: 30 June
Auditor: BDO Xxxxxxxxx revision AB -
Mats Xxxxxxxx
Solicitors: Use different solicitors
for different issues when
necessary.
Authorised Share Capital: SEK 100,000 dividend into
5,000 shares of 20 SEK each
Issued and fully paid-up Share Capital: 5,000 shares of 20 SEK each
Non-distributable Reserves SEK 22,450,000 Legal reserve
Shareholders Beneficial Owners No. of Shares
Filofax Group Ltd 5,000
Filofax A/S
Registered Number: 213.926
Registered Office: Xxxxxxxxxxxxx 00, XX-0000 Ishoj
Date and place of incorporation: 2/6/1993 - Copenhagen
Directors: Bjorn-Xxxxxx Xxxxxx,
Xxxxxxxxxxx Xxxxx and Xxxxxx
Xxxxxx
Secretary: None
VAT Number: 17095285
Tax District and Reference Number: 213.926
Accounting Reference Date: 31 March
Auditors: BDO Binder
Solicitors: Advokatfirmaet Kromann & Xxxxxx
Authorised Share Capital: 500,000 TDKK divided into 5,000
A Shares of 100 DKK each
Issued and fully paid-up Share Capital: 5,000 A Shares of DKK 100 each
Shareholders No. of Shares
Filofax Ltd 5,000
NOTE: NON-TRADING COMPANY
Filofax GmbH
Registered Number: HRB53342
Registered Office: Am Xxxxxxxxxx Xxxx
00000 Xxxxxxxxxx
Xxxxxxx
Date and place of incorporation: 29/07/1993 - Hamburg
Directors: Xxxxxx Xxxxxxxxx and
Xxxxxxxxxxx Xxxxx
Secretary: o
VAT Number: DE 811 228 190
Tax District and Reference Number: 040 233 35 148
Accounting Reference Date: 30 June
Auditors: Fritsen Consult
Authorised Share Capital: DM400.000
Issued and fully paid-up Share Capital: DM400.000
Shareholders No. of Shares
Filofax Ltd 400,000
Filofax Italia S.rl.
Registered Number: 77458/1988
via del Rondinino 4/B
Registered Office: 50132 Firenze (FI)
Italy
Date and place of incorporation: 01.12.98 - registered at
Chamber of Commerce of
FI no.501208
Directors: Xxxxxxxxxxx Xxxxx,
Xxxxxx Xxxxxxxx,
Xxxxxxx Xxxx
Secretary: None
VAT Number: IT 04928560483
Fiscal Code: 016069
Accounting Reference Date: 30 June
Auditors/Solicitors: Xx Xxxxxxx, Xxx Xxx
Xxxxxxxx, Xxxxxxxxxx 0
00000 Xxxxxxx
Authorised Share Capital: 20,000,000 Italian Lire
Issued and fully paid-up Share Capital: 20,000,000 Italian Lire
Shareholders No. of Shares
Filofax Ltd 19,999,000
Xxxxxx Xxxxxxxx 1,000
20,000,000
Filofax France Sarl
Registered Number: RCS: Paris B 388 517 195
89, Xxx xx Xxxxxx
Xxxxxxxxxx Xxxxxx: 00000 Xxxxx, Xxxxxx
Date and place of incorporation: 15/09/1992 - Xxxxx
Xxxxxx: Xxxxxxxxxxx Xxxxx
Secretary: None
VAT Number: FR 82388517195
Tax District and Reference Number: FRP 75802001 3051 0000000
Accounting Reference Date: 30 June
Patrick Aumerais
Commissaire aux comptes: 0, xxx Xx Xxxx
00000 Xxxxx
Authorised Share Capital: FRF 50,000 divided into 500
Ordinary Shares of FRF 100
each
Issued and fully Share paid-up Capital: 500 Ordinary Shares of FRF
100 each
Loan Capital: None
Shareholders No. of Shares
Filofax France Ltd 500
Xxxxxxx Bladdon and Middleton Limited
Registered Number: 752439
c/o Filofax Group Ltd
Registered Office: Xxxxxxxx Xxxxx
0/00 Xxxx Xxxxxx
Xxxxxx X0X 0XX
Date and place of incorporation: 06/03/1963 - England and Wales
Directors: Xxxxxxx Xxxx and
Xxxxxxxxxxx Xxxxx
Secretary: Xxxxxxx Xxxx
VAT Number: Not registered
Tax District and Reference Number: 23430 12902
Accounting Reference Date: 30 June
Auditors: Deloitte & Touche
Solicitors:
Authorised Share Capital: (pound)100 divided into 100
Ordinary Shares of(pound)1 each
Issued and fully paid-up Share Capital: 2 Ordinary Shares of(pound)1
each
Shareholders No. of Shares
Yard-O-Led Pencil Company Ltd 2
NOTE: NON-TRADING COMPANY
Xxxxxx Xxxxx & Son Limited
Registered Number: 209240
Registered Office: 0xx Xxxxx, Xxxxxxxx Xxxxx,
0-00 Xxxx Xxxxxx, Xxxxxx, X0X
0XX
Date and place of incorporation: 26 October 1925 in England and
Wales
Directors: Xxxxxxx Xxxxx Xxxx and Xxxxxxxxxxx
Xxxxx Brace
Secretary: Xxxxxxx Xxxxx Xxxx
Accounting Reference Date: 30 June
Auditors: None
Solicitors: Linklaters & Alliance
Authorised Share Capital: 4,2000 5 1/4% Cumulative Preference
Shares of(pound)1 each
2,800 Ordinary Shares of (pound)
1 each
Issued and fully paid-up Share Capital: 4,2000 5 1/4% Cumulative Preference
Shares of(pound)1 each
1,601 Ordinary Shares of (pound)1
each
Shareholders Beneficial Owners No. of Shares
Filofax Group Limited 1 Ordinary
Yard-o-led Pencil Co Limited 1,600 Ordinary
4,200 Preference
NOTE: DORMANT COMPANY
Tufnell Investments Limited
Registered Number: 639693
c/o Filofax Group Ltd
Registered Office: Xxxxxxxx Xxxxx
0/00 Xxxx Xxxxxx
Xxxxxx X0X 0XX
Date and place of incorporation: 15/10/1959 - England and Wales
Directors: Xxxxxxx Xxxx and Xxxxxxxxxxx Xxxxx
Secretary: Xxxxxxx Xxxx
VAT Number: Not registered
Tax District and Reference Number: 83430 13480
Accounting Reference Date: 30 June
Auditors: Deloitte & Touche
Solicitors:
Authorised Share Capital: (pound)100 dividend into 100 Ordinary
Shares of(pound)1 each
Issued and fully paid-up Share Capital: 100 Ordinary Shares of(pound)1 each
Shareholders No. of Shares
Filofax Group Ltd 100
NOTE: NON-TRADING COMPANY
Topps Far East Limited
Registered Number: 487254
Registered Office: 00xx xxxxx Xxxxxx X Xxxxxx Xxxxxx
00 Xxxxxxxxx
Xxxx Xxxx
Date and place of incorporation: 02/08/1994 - Hong Kong
Principals: Xxxxxxx Xxxxxx Xxxxxxxx,
Xxxxx Xxxx Xxxxxx Xxxxx,
Wing Xxxxxx Xxxxx Lo,
Xxx Xxxx Xxxxxx Xxx, Xxx Xxxxx Xxx
Secretary: Consolidated Secretaries Ltd,
00-00 Xxx X Xxxx, X/X,
Xxxxxxx, Xxxx Xxxx
VAT Number:
Tax District and Reference Number:
Accounting Reference Date:
Auditors: M B Xxx & Co
United Centre
00xx xxxxx, Xxxxxx X
00 Xxxxxxxxx, Xxxx Xxxx
Solicitors:
Authorised Share Capital: HK$10,000 divided into 10,000
Ordinary Shares of HK$1.00
each
Issued and fully paid-up Share Capital: 10,000 Ordinary Shares of HK$1.00
each
Shareholders No. of Shares
Topps of England Ltd 9,999
Incorporated Nominees Ltd 1
-------------
10,000
NOTE: NON-TRADING COMPANY
Topps Hong Kong Ltd
Incorporation Number: 71150
Registered Office: 00xx xxxxx Xxxxxx X Xxxxxx Xxxxxx
00 Xxxxxxxxx
Xxxx Xxxx
Date and place of incorporation: 06/07/1979 - Hong Kong
Principals: Xxx Xxxxx Xxx,
Xxxxxxx Xxxxxx Xxxxxxxx,
Xxxxx Xxxx Xxxxx
Secretary: Consolidated Secretaries Ltd,
00-00 Xxx X Xxxx, X/X,
Xxxxxxx, Xxxx Xxxx
VAT Number:
Tax District and Reference Number:
Accounting Reference Date:
Auditors: M B Xxx & Co
United Centre
00xx xxxxx, Xxxxxx X
00 Xxxxxxxxx, Xxxx Xxxx
Solicitors:
Authorised Share Capital: HK$10,000 divided into 10,000
Ordinary Shares of HK$1.00 each
Issued and fully paid-up Share Capital: 10,000 Ordinary Shares of
HK$1.00 each
Shareholders No. of Shares
Topps of England Ltd 9,998
Incorporated Nominees Ltd 2
-------------------
10,000
NOTE: NON-TRADING COMPANY
Schedule 2
Completion Obligations
1. Vendors' Obligations
1.1......General
On Completion the Vendors shall, in accordance with Clause 4, deliver
or make available to the Purchaser:
1.1.1 3 transfers relating to the Shares duly
executed by each of the Vendors in favour of the Purchaser
or as it may direct;
1.1.2 the written resignations of Xxxx Xxxxxx,
Xxxxx Xxxxxx and Xxxxxxxxx Xxxxxxxxx from office as a
director or secretary from the Company and Filofax Group
Limited to take effect on the date of Completion with
acknowledgements signed by each of them in a form
satisfactory to the Purchaser and executed as a deed to the
effect that he or she has no claim against any Group Company
or any other member of the Group for compensation for loss
of office (whether contractual, statutory or otherwise),
unfair dismissal, redundancy or otherwise except only for
any accrued remuneration and reimbursable business expenses
incurred down to the date of Completion;
1.1.3 certified copies of each of the Third
Further Amending Agreements entered into between Filofax
Group Limited and each of Xxxxxxx Xxxx and Xxxxxxxxxxx Xxxxx
in relation to their respective service contracts together
with certified copies of the minutes authorising such
agreements;
1.1.4 an officers certificate from Filofax Group
Limited, attaching a schedule of inter-company transfers
from the Group plus Filofax, Inc (and its subsidiaries) to
the Vendors' Group for the period of 30 days prior to
Completion, stating that he or she believes such schedule to
accurately reflect the inter-company transfer position
between the Vendors' Group and the Group plus Filofax, Inc
(and its subsidiaries) for such period;
1.1.5 certified copies of the board (and any
necessary shareholder) resolutions of each of the Vendors
approving the terms of this Agreement;
1.1.6 (if the Purchaser so requires) the written
resignations of the auditors of each Group Company to take
effect as of the date of Completion, with acknowledgements
signed by each of them in a form satisfactory to the
Purchaser to the effect that they have no claim against any
Group Company and containing the statement referred to in
Section 394 of the Companies Xxx 0000 to the effect that
there are no circumstances connected with their resignation
which they consider should be brought to the notice of the
members or creditors of any Group Company;
1.1.7 (for the Purchaser itself and as agent for
the Company) the certificates of incorporation, corporate
seals (if any), cheque books, statutory and other books of
each Group Company (duly written up-to-date), and the share
certificates in respect of each of the Subsidiaries that are
not charged or pledged pursuant to the Loan Documentation;
1.1.8 all the financial and accounts of each Group
Company and (for the Purchaser itself and as agent for the
Company) all title deeds and other documentation relating to
the Properties;
1.1.9 the latest available bank statements of all
bank accounts of all Group Companies;
1.1.10 copies of any third party consents required
under the trading contracts of the Company or
its Subsidiaries; and
1.1.11 letters of consent signed on behalf of the
parties to the Loan Documentation releasing any charge or
pledge over the Shares to theextent required to complete
this Agreement.
and to the extent that the Vendors are unable to deliver or make
available the afore mentioned on Completion, they shall do so within a
period of two weeks following Completion.
1.2 Board Resolutions of the Group Companies
On Completion, the Vendors shall procure the passing of Board
Resolutions of each Group Company inter alia:
1.2.1 (if so required by the Purchaser) revoking
all existing authorities to bankers in respect of the
operation of its bank accounts and giving authority in
favour of such persons as the Purchaser may nominate to
operate such accounts;
1.2.2 accepting the resignations referred to in
paragraph 1.1.2 of this Schedule, appointing such persons
(within the maximum number permitted by the Articles of
Association) as the Purchaser may nominate as directors and
secretary, and in relation to:
(a) the Company, subject to Completion,
re-registering as a limited company and adopting new
Articles of Association (having procured the necessary
shareholder approval); and
(b) Filofax Group Limited, subject to Completion,
adopting new Articles of Association (having procured the
necessary shareholder approval);
1.2.3 in the case of the Company only, approving
the registration of the share transfers referred to in
paragraph 1.1.1 of this Schedule subject only to their being
duly stamped; and
1.2.4 accepting the resignations referred to in
paragraph 1.1.6 of this Schedule and appointing auditors of
each Group Company as the Purchaser may direct;
and shall hand to the Purchaser duly certified
copies of such Resolutions and to the extent that the
Vendors are unable to procure the passing of such
Resolutions on Completion, other than in relation to
paragraph 1.1.1, 1.1.2, 1.1.3, 1.1.4, 1.1.5, 1.2.2 and
1.2.3, they shall do so within a period of two weeks
following Completion.
2. Purchaser's Obligations
On Completion the Purchaser shall satisfy its obligations under Clause
4.3 and deliver copies of the following document, duly signed by all of
the parties other than Filofax, Inc and those parties which are within
the Vendors' Group or the Group:
(a) the Debt Affirmation and Release Agreement to
be entered into by some or all of the parties to the Loan
Documentation; and
(b) the Satisfaction Agreement to be entered into
by some or all of the parties to the Loan Documentation.
Schedule 3
Part 1
Warranties given by the Vendors under Clause 5
1 Authority and Capacity of the Vendor
1.1 Incorporation
The Vendors and the Group Companies are companies duly incorporated and
validly existing under their respective laws of incorporation.
1.2 Authority to enter into this Agreement etc.
The Vendors have the legal right and full power and authority to enter
into and perform this Agreement and any other documents to be executed
by the Vendors pursuant to or in connection with this Agreement which
when executed will constitute valid and binding obligations on the
Vendors, in accordance with their respective terms.
1.3 No Breach
The execution and delivery of, and the performance by the Vendors of
their obligations under, this Agreement will not, so far as the Vendors
are aware,:
1.3.1 result in a breach of any provision of the
memorandum or articles of association of the Vendors or
Group Company; or
1.3.2 result in a breach of or give any third
party a right to terminate or modify, or result in the
creation of any Encumbrance under, any agreement, licence or
other instrument other than the Loan Documentation or result
in a breach of any order, judgement or decree of any Court,
governmental agency or regulatory body to which the Vendor
or Group Companies is a party or by which the Vendor or any
of its assets or Group
Companies is bound.
1.4 The Shares
The Vendors are entitled to sell and transfer to the Purchaser the full
legal and beneficial ownership of the Shares on the terms of this
Agreement without the consent of any third party. The Shares comprise
the whole of the allotted and issued share capital of the Company, have
been properly and validly allotted and issued and are each fully paid.
1.5 Pre-emption etc.
No person has the right (whether exercisable now or in the future and
whether contingent or not) to call for the allotment, conversion,
issue, sale or transfer of any share or loan capital in any Group
Company under any option or other agreement (including conversion
rights and rights of pre-emption) and there are no Encumbrances on the
shares of any Group Company.
1.6 The Inter-Company Debt
The Vendors are entitled to assign and transfer to the Purchaser the
full legal and beneficial title to the Inter-Company Debt. The
Inter-Company Debt is free of any Encumbrance.
2 Accuracy and Adequacy of Information Disclosed to the Purchaser
All information contained in Schedules 1 and 5 of this Agreement is
when taken as a whole and to the best of the knowledge, information and
belief of the Vendors true and accurate in all material respects at the
date hereof.
3 Accounts and Records
3.1 Accounts
To the best of the knowledge, information and belief of the
Vendors, the Audited Accounts have been prepared in accordance
with the accounting policies and principles set out therein
and properly present the net assets of the Group as at the
Balance Sheet Date.
3.2 Accounting and other Records
The statutory books and accounting records of each Group
Company are to the Vendors' knowledge up-to-date and
maintained in accordance with all applicable legal
requirements on a proper basis and to the Vendors' knowledge
contain complete and accurate records of all matters required
by law to be dealt with in such books.
3.3 Changes since the Balance Sheet Date
Since the Balance Sheet Date, so far as the Vendors are aware
and save as expressly provided for in this Agreement:
3.3.1 there has been no material adverse change in
the financial position or turnover of the Group as a whole,
other than are resulting from changes in general economic
conditions or from factors affecting companies carrying on
similar businesses to a similar extent;
3.3.2 the business of the Group as a whole has
been carried on in the ordinary course, without any
interruption or alteration in its nature, scope or manner,
and so as to maintain the same as a going concern;
3.3.3 no dividend or other distribution has been
declared, made or paid by the Company to its members;
3.3.4 no share or loan capital has been allotted
or issued by a Group Company; and
3.3.5 no Group Company has redeemed or purchased
or agreed to redeem or purchase any of its share capital.
3.4 Taxation
3.4.1 Full provision or reserve has been made in
the Audited Accounts for all taxation liable to be assessed
on each Group Company or for which each is or may become
accountable in respect of:
(i) profits, gains or income (as computed for
taxation purposes) arising or accruing or deemed to arise or
accrue on or before the Balance Sheet Date;
(ii) any transactions effected or deemed to be
effected on or before the Balance Sheet Date or provided for
in the Audited Accounts;
(iii) distributions made or deemed to be made on
or before the Balance Sheet Date or provided for in the
Audited Accounts.
3.4.2 Proper provision or reserve for deferred
taxation in accordance with accounting principles and
standards generally accepted at the date of this Agreement
in the United Kingdom has been made in the Audited Accounts.
3.4.3 Except as disclosed by the Audited Accounts
and save in so far as full provision is made in them in a
deferred taxation account for taxation in respect of any
balancing charges which would arise or accrue in respect of
any such machinery and plant on disposal thereof at the
value at which the machinery and plant is included in the
Audited Accounts, the machinery and plant is not included in
the Audited Accounts at such value that if it were obtained
on the disposal or deemed disposal of the machinery and
plant as a whole a balancing charge would arise or accrue.
3.5 Debts
None of the debts receivable or due to any Group Company which are
included in the Audited Accounts or which have subsequently arisen has
been outstanding for more than three months from its due date for
payment or has been released on terms that the debtor has paid less
than the full value of his debt and all such debts have realised or
will realise in the normal course of collection their full value as
included in the Audited Accounts or in the books of the relevant Group
Company after taking into account the provision for bad and doubtful
debts made in the Audited Accounts. For the avoidance of doubt, a debt
shall not be regarded as realising its full value to the extent that it
is paid, received or otherwise recovered in circumstances in which such
payment, receipt or recovery is or may be void, voidable or otherwise
liable to be reclaimed or set aside.
3.6 Borrowings
3.6.1 The amounts borrowed by each Group Company
do not exceed any limitation on its borrowings contained in
its Articles of Association (or other constitutional
documents) or in any debenture or other deed or document
binding upon it.
3.6.2 No Group Company has outstanding any loan
capital, nor has it factored any of its debts, nor engaged
in any financing of a type which would not be required to be
shown or reflected in the Audited Accounts or borrowed any
money which it has not repaid, save for borrowings disclosed
in the Data Room.
4 Legal Matters
4.1 Compliance with Laws
To the best of the knowledge, information and belief of the Vendors,
each of the Group Companies has carried on and is carrying on its
business and operations in all material respects so that there have
been no breaches of applicable laws, regulations and bye-laws in each
country in which it is carried on and there have not been and are not
any breaches by any Group Company of its constitutional documents and
there has not been any, and there is no, investigation or enquiry by,
or order, decree, decision or judgement of, any court, tribunal,
arbitrator, governmental agency or regulatory body outstanding or
anticipated against any Group Company or any person for whose acts or
defaults it may be vicariously liable which has had or may have a
material adverse effect upon its assets or business, nor is there any
notice or other communication (official or otherwise) from any court,
tribunal, arbitrator, governmental agency or regulatory body with
respect to an alleged actual or potential violation and/or failure to
comply with any such applicable law, regulation, bye-law or
constitutional document, or requiring it to take or omit any action
which has had or may have a material adverse effect upon its assets or
business.
4.2 Licences and Consents
To the best of the knowledge, information and belief of the Vendors,
all licences, consents, authorisations, orders, warrants,
confirmations, permissions, certificates, approvals and authorities
("Licences") necessary or desirable for the carrying on of the
businesses and operations of each of the Group Companies as now carried
on, have been obtained, are in full force and effect and have been and
are being complied with. To the best of the knowledge, information and
belief of the Vendors, there is no investigation, enquiry or proceeding
outstanding or anticipated which is likely to result in the suspension,
cancellation, modification or revocation of any of such Licences. None
of such Licences has been breached or is likely to be suspended,
cancelled, refused, modified or revoked (whether as a result of the
entry into or completion of this Agreement or otherwise).
4.3 Litigation
4.3.1 Since the Balance Sheet Date, no claim for
damages or otherwise has been made against any Group
Company.
4.3.2 No Group Company (or any person for whose
acts or defaults a Group Company may be vicariously liable)
is involved whether as plaintiff or defendant or other party
in any claim, legal action, proceeding, suit, litigation,
prosecution, investigation, enquiry or arbitration (other
than as plaintiff in the collection of debts arising in the
ordinary course of its business) and no such claim, legal
action, proceeding, suit, litigation, prosecution,
investigation, enquiry or arbitration of material importance
is pending or threatened by or against any Group Company (or
any person for whose acts or defaults a Group Company may be
vicariously liable).
4.3.3 There are no investigations, disciplinary
proceedings or other circumstances known to the Vendors
likely to lead to any such claim or legal action,
proceeding, suit, litigation, prosecution, investigation,
enquiry or arbitration.
4.4 Insolvency etc.
4.4.1 No order has been made, petition presented,
resolution passed or meeting convened for the winding up (or
other process whereby the business is terminated and the
assets of the company concerned are distributed amongst the
creditors and/or shareholders or other contributories) of
any Group Company and there are no cases or proceedings
under any applicable insolvency, reorganisation, or similar
laws in any jurisdiction concerning any Group Company and no
events have occurred which, under applicable laws, would
justify any such cases or proceedings.
4.4.2 No petition has been presented or other
proceedings have been commenced for an administration order
to be made (or any other order to be made by which during
the period it is in force, the affairs, business and assets
of the company concerned are managed by a person appointed
for the purpose by a court, governmental agency or similar
body) in relation to any Group Company, nor has any such
order been made.
4.4.3 No receiver (including an administrative
receiver), liquidator, trustee, administrator, custodian or
similar official has been appointed in any jurisdiction in
respect of the whole or any part of the business or assets
of any Group Company and no step has been taken for or with
a view to the appointment of such a person.
5. Trading and Contractual Arrangements
5.1 Effect of Sale of the Shares
To the best of the knowledge, information and belief of the Vendors
neither entering into, nor compliance with, nor completion of this
Agreement will, or is likely to, cause any Group Company to lose the
benefit of any right or privilege it presently enjoys or any person who
normally does business with or gives credit to any Group Company not to
continue to do so on the same basis, or any officer or senior employee
of any Group Company to leave his employment, and to the best of the
knowledge, information and belief of the Vendors the attitude or action
of customers, suppliers, employees and other persons with regard to any
Group Company will not be prejudicially affected thereby.
5.2 Contracts
5.2.1 No Group Company is, or has been, party to
any contract, commitment or arrangement which:
(i) is outside the ordinary course of business;
(ii) is not wholly on an arm's length basis; or
(iii) is of a long-term nature (that is, unlikely
to have been fully performed in accordance with its terms
more than six months after the date it was entered into or
undertaken or incapable of termination by the Vendors on six
months' notice or less).
5.3 Compliance with Agreements
All the contracts and all leases, tenancies, licences, concessions and
agreements of whatsoever nature to which any of the Group Companies is
a party are valid, binding and enforceable obligations of such Group
Companies and the terms thereof have been complied with by the relevant
Group Company and to the best of the knowledge, information and belief
of the Vendors by all the other parties thereto and there are to the
best of the knowledge, information and belief of the Vendors no grounds
for rescission, avoidance or repudiation of any of the contracts or
such leases, tenancies, licences, concessions or agreements and no
notice of termination or of intention to terminate has been received in
respect of any thereof.
5.4 Anti-Trust
No Group Company is a party to any agreement, arrangement or concerted
practice or is carrying on any practice which in whole or in part
contravenes or is invalidated by any antitrust, fair trading, consumer
protection or similar legislation in any jurisdiction where the Group
Company has assets or carries on business or in respect of which any
filing, registration or notification is required or is advisable
pursuant to such legislation (whether or not the same has in fact been
made).
5.5 Guarantees etc.
Save as disclosed in the Audited Accounts, there is not outstanding any
guarantee, indemnity, surety ship or comfort (whether or not legally
binding) given by or for the benefit of any Group Company.
6 Employees etc.
6.1 Employees and Terms of Employment
6.1.1 There is not in existence any written
contract of employment with any director or employee of any
Group Company, nor any consultancy agreements with any Group
Company, which cannot be terminated by 12 months' notice or
less without giving rise to any claim for damages or
compensation (other than a statutory redundancy payment or
statutory compensation for unfair dismissal).
6.1.2 Other than in relation to Messrs.
Xxxxxxxxxxx Xxxxx and Xxxxxxx Xxxx, there are no terms of
employment for employees at any Group Company or consultancy
agreements with any Group Company or terms of appointment
for directors of any Group Company which provide that a
change in control of any Group Company (however change in
control may be defined in the said document, if at all)
shall entitle the said employee, consultant or director to
treat the change in control as amounting to a breach of the
contract or entitling him to any payment or benefit
whatsoever or entitling him to treat himself as redundant or
dismissed or released from any obligation.
6.2 Trade Disputes
No Group Company is involved in, and there are no circumstances likely
to give rise to, any industrial or trade dispute or any dispute or
negotiation regarding a claim of material importance with any trade
unions, works council, staff association or other similar Organisation
or other body representing any of the employees.
7 Taxation Matters
References to any Taxation or other appropriate fiscal authority shall
include any local, municipal, governmental, state, federal or other
body or authority wherever in the world (and shall, for the avoidance
of doubt, but without prejudice to the generality of the foregoing,
include references to customs and/or excise authorities).
7.1 Returns, Information and Clearances
7.1.1 All registrations, returns, computations and
notices which are or have been required to be made or given
by each Group Company for any Taxation purpose in respect of
the Group's business (i) have been made or given within the
requisite periods and on a proper basis and are up-to-date
and correct and (ii) none of them is, or is likely to be,
the subject of any dispute with any Taxation authority.
7.1.2 Each Group Company is in possession of
sufficient information or has reasonable access to such
information to enable it to compute its liability to
Taxation in so far as it depends on any Transaction
occurring on or before Completion.
7.2 Taxation Claims, Liabilities and Reliefs
7.2.1 There are set out in the Data Room, details
of any Taxation that may be outstanding in respect of any of
the Group Companies.
7.2.2 There are set out in the Data Room, details
of all matters relating to Taxation in respect of which each
Group Company (either alone or jointly with any other
person) has, or at Completion in relation to the relevant
Group Company will have, an outstanding entitlement:
(i) to make any claim including a supplementary
claim for relief from Taxation under any statutory provision
relating to Taxation;
(ii) to make any election for one type of relief,
or one basis, system or method of Taxation, as opposed to
another;
(iii) to make any appeal (including a further
appeal) or objection against an assessment to Taxation;
(iv) to make any application for the postponement
of, or payment by installments of, Taxation; or
(v) to disclaim any allowance or relief;
such details being sufficient to enable the Purchaser
to procure that any time limit to such entitlement
expiring within six months after Completion in
relation to the relevant Group Company can be met.
7.2.3 No relief (whether by way of deduction,
reduction, set-off, exemption, repayment, allowance or
otherwise) from, against or in respect of any Taxation has
been claimed and/or given to any Group Company which could
or might be effectively withdrawn, postponed, restricted or
otherwise lost as a result of any act, omission, event or
circumstance arising or occurring at or at any time after
Completion in relation to the relevant Group Company.
0.0.Xxxxxxx Company Status
Each Group Company at the date of this Agreement carries on a business activity
which is a trade for the purposes of Taxation and has not ceased and will not as
a result of any contract, agreement or arrangement entered into before
Completion in relation to the relevant Group
Company cease to carry on such activity.
7.4 Company Residence
There are set out in Schedule 1 full particulars of the residence for
Taxation purposes of each Group Company.
7.5 Acquisitions from Members of the same Group
The entry into or completion of this Agreement will not result in any
profit or gain being deemed to accrue to any Group Company for Taxation
purposes.
7.6 Base Values and Costs of Acquisition
7.6.1 If each of the assets (other than trading
stock) of each Group Company was disposed of for a
consideration equal to the book value of that asset in, or
adopted for the purpose of, the Audited Accounts, no
Taxation liability not fully provided for in the Audited
Accounts would arise; and, for the purpose of determining
such Taxation liability, there shall be disregarded any
Taxation Benefit available to the Group Company concerned.
7.6.2 No Group Company has since the Balance Sheet
Date acquired any asset (other than trading stock) from
another Group Company.
7.7 Deductions from Payments
Each Group Company has complied with all statutory provisions relating
to Taxation which require the deduction of Taxation from any payment
made by it, and has properly accounted for any such Taxation which
ought to have been accounted for.
7.8 Depreciatory Transactions
No asset owned by any Group Company has at any time since its
acquisition by that or any other Group Company been subjected to a
reduction in value such that any allowable loss arising on its disposal
is likely to be reduced or eliminated or any chargeable gain arising on
its disposal is likely to be increased.
7.9 Tax Equalisation Payments
7.9.1 No Group Company is liable to make a payment
for the utilisation, surrender or other transfer of any
Taxation Benefit, nor is any such payment received by any
Group Company liable to be refunded; and
7.9.2 No Group Company is under any obligation to
surrender or otherwise transfer any Taxation Benefit.
7.10 VAT/Sales Tax
All proper records have been kept and all proper returns have been made
as required by laws for the purpose of VAT or other applicable sales
taxes in connection with the Group's business up to and including
today's date.
7.11 Disputes
The Vendors are not involved in any dispute with any Taxation or other
appropriate fiscal authority concerning any matter likely to affect the
Shares in any way.
8 Assets (other than the Properties and Intellectual Property)
8.1 Ownership of the Group Companies
The Company, and/or (where specified) a Group Company, is the
beneficial owner of all the issued or allotted shares of the
Subsidiaries listed in Schedule 1 free from all Encumbrances and all
such shares are fully paid or credited as fully paid.
8.2 Subsidiaries, Associates and Branches No Group Company:
No Group Company:
8.2.1 is the holder or beneficial owner of, or has
agreed to acquire, any share or loan capital of any other
company (whether incorporated in the United Kingdom or
elsewhere) other than the Subsidiaries set out in Schedule
1;
8.2.2 has any branch, division, establishment or
operations outside the jurisdiction in which it is
incorporated (other than to the extent disclosed in the Data
Room in relation to Denmark & Sweden); or
8.2.3 has or has had any associate (that is to
say, an entity which falls to be treated as such for the
purposes of FRS 9).
8.3 Title to Assets
All assets (other than the Properties and Intellectual Property) of
each Group Company, including all debts due to each Group Company which
are included in the Audited Accounts or at the Balance Sheet Date used
or held for the purposes of its business, were at the Balance Sheet
Date the absolute property of such Group Company and (save for those
subsequently disposed of or realised in the ordinary course of trading)
all such assets and all assets and debts which have subsequently been
acquired or arisen are the absolute property of such Group Company and
none is the subject of any assignment or Encumbrance (excepting only
liens arising by operation of law in the normal course of trading) or
the subject of any factoring arrangement, hire purchase, conditional
sale or credit sale agreement excepting any retention of title clauses
in contracts.
9 Intellectual Property
9.1 Ownership
9.1.1 To the best of the knowledge, information
and belief of the Vendors, all material rights and interests
held by the Group (whether as owner license or otherwise)
inIntellectual Property (whether registered or not) and all
pending applications therefore are (or where appropriate in
the case of pending applications, will upon registration be)
legally owned by, licensed to or used under the authority of
the owner by the Group.
9.1.2 To the best of the knowledge, information
and belief of the Vendor, all rights and interests held by
the Group (whether as owner license or otherwise) in
Intellectual Property which is owned by the Group (whether
registered or not) and all pending applications therefore
are (or where appropriate in the case of pending
applications, will upon registration be):
(i) not being infringed or attacked or opposed by
any person;
(ii) not licensed to a third party; and
(iii) in force,
and no claims have been made and no applications are pending,
which if pursued or granted might be material to the truth and
accuracy of any of the above.
10 Leasehold Property
10.1 The Properties comprise all of the premises and land owned,
occupied or otherwise used in connection with the businesses
of the Group Companies or in which the Group Companies have an
interest.
10.2 No Group Company has any continuing liability in respect of any
leasehold property other than the Properties.
Part 2
Warranties given by the Purchaser under Clause 5
Authority and Capacity of the Purchaser
1.1 Incorporation
The Purchaser is a company duly incorporated and validly existing under
the laws of England and Wales.
1.2 Authority to enter into this Agreement
The Purchaser has the legal right and full power and authority to enter
into and perform this Agreement and any other documents to be executed
by the Vendors pursuant to or in connection with this Agreement which
when executed will constitute valid and binding obligations on the
Vendors, in accordance with their respective terms.
1.3 No Breach
The execution and delivery of, and the performance by the Purchaser of
its obligations under this Agreement will not so far as the Purchaser
is aware:
1.3.1 result in a breach of any provision of the
memorandum or articles of association of the Purchaser; or
1.3.2 result in breach of any agreement, licence
or other instrument, order, judgement or decree of any
Court, governmental agency or regulatory body to which the
Purchaser is a partly or by which the Purchaser is bound.
1.4 Corporate action
All corporate action required by the Purchaser validly and duly to
authorise the execution and delivery of, and to exercise its rights and
perform its obligations under, this Agreement or any other agreement
entered into pursuant to this Agreement has been duly taken.
Schedule 4
Limitation of Liability under Clause 5
1 Limitation of Liability
Notwithstanding the provisions of Clause 5.1.1 and with the exception
of any claim under paragraph 1 of Schedule 3, Part 1, the Vendors shall
not be liable under the Warranties :
1.1 Time Limits
in respect of any claim unless notice of such claim is setting out
details of the specific matter in respect of which the claim is made
including an estimate of the amount of such claim, if practicable,
within 18 months following Completion and any such claim shall (if it
has not been previously satisfied, settled or withdrawn) be deemed to
be withdrawn six months after the relevant time limit set out above
unless legal proceedings in respect of it have been commenced by being
both issued and served and are being pursued with reasonable diligence;
1.2 Minimum Claims
in respect of any claim arising from any single circumstance if the
amount of the claim does not exceed 0.1 per cent. of the Consideration
(save that claims relating to a series of connected matters shall be
aggregated for this purpose) but the Vendors shall not be liable for a
claim in excess of that amount unless the liability determined in
respect of any such claim (excluding interest, costs and expenses) also
exceeds that amount;
1.3 Aggregate Minimum Claims
in respect of any claim unless the aggregate amount of all claims for
which the Vendors would otherwise be liable under this Agreement
exceeds 1 per cent. of the Consideration but the liability of the
Vendors shall be limited to the amount of the excess there over;
1.4 Maximum Claims
in respect of any claim to the extent that the aggregate amount of
the liability of the Vendors for all claims made under this Agreement
would exceed 50 per cent. of the Consideration;
1.5 Contingent Liabilities
in respect of any liability which is contingent only unless and until
such contingent liability becomes an actual liability and is due and
payable;
1.6 Provisions in the Accounts
in respect of any claim if and to the extent that:
1.6.1 proper provision or reserve is made for the
matter giving rise to the claim in the Audited Accounts (and
not subsequently released); or
1.6.2 any sum is received by any Group Company
which has previously been written off as irrecoverable in
the accounts of the Group Company;
1.7 Voluntary Acts, etc.
in respect of any matter, act, omission or circumstance (or any
combination thereof), to the extent that the same would not have
occurred but for:
1.7.1 Voluntary Acts of Purchaser: any voluntary
act of the Purchaser or any member of the Purchaser's Group
or any of the Group Companies, or their respective
directors, employees or agents or successors in title, after
Completion;
1.7.2 Changes in Legislation: the passing of, or
any change in, after the date of this Agreement, any law,
rule, regulation or administrative practice of any
government, governmental department, agency or regulatory
body including (without prejudice to the generality of the
foregoing) any increase in the rates of taxation or any
imposition of taxation or any withdrawal of relief from
taxation not actually (or prospectively) in effect at the
date of this Agreement;
1.7.3 Accounting and taxation Changes: any
voluntary change in accounting or taxation policy, bases or
practice of the Purchaser or any of the Group Companies
introduced or having effect after Completion (and other than
changes to comply with UK GAAP, FRS's or to remedy any
previous errors);
1.8 Insurance
in respect of any claim to the extent that any Losses arising from such
claim are (after taking account of taxation on the insurance proceeds
but giving credit in calculating such taxation for any tax relief
available in respect of Losses) actually covered under a policy of
insurance or would have been if a claim had been submitted under such
policy;
1.9 Net Benefit
in respect of any claim for any Losses suffered by the Purchaser or any
of the Group Companies to the extent of any corresponding savings by or
net benefit to the Purchaser or any other member of the Purchaser's
Group or any other Group Company arising directly therefrom;
1.10 Purchaser's Knowledge
in respect of any claim to the extent that the relevant facts, matters
or circumstances, giving rise to the claim were known by the Purchaser
or by any of its directors or legal, financial or banking advisers
prior to the execution of this Agreement. The Purchaser represents and
warrants to the Vendors that none of such persons is aware of any such
facts, matters or circumstances which are not disclosed in the Data
Room and the Purchaser will represent and warrant at Completion that,
save as disclosed in writing prior to Completion, none of such persons
is at Completion aware of any event arising or occurring after the
signing of this Agreement which results or may result in any of the
Warranties being untrue, misleading or incorrect in any material
respect at Completion.
1.11 Vendors' Knowledge
In respect of any warranty determined by reference to the "knowledge,
information and belief of the Vendors", the relevant knowledge,
information and belief shall be that of the board of directors of the
Vendors only, having made reasonable enquiries of Xxxxxxxxxxx Xxxxx and
Xxxxxxx Xxxx. The Vendors confirm that they have no claim against
either Xxxxxxxxxxx Xxxxx or Xxxxxxx Xxxx or any Group Company for any
information supplied to it and should such a claim arise, the Vendors
hereby waive any right to make any claim (other than in the case of
fraud).
2 Mitigation of Loss
The Purchaser shall procure that all reasonable steps are taken and all
reasonable assistance is given to avoid or mitigate any Losses which in
the absence of mitigation might give rise to a liability in respect of
any claim under this Agreement.
3 Conduct of Claims
3.1 Notification
If the Purchaser or any Group Company becomes aware of any matter that
may give rise to a claim against the Vendors under this Agreement
notice of that fact shall be given as soon as possible to the Vendors.
3.2 Investigation by the Vendors
Without prejudice to the validity of the claim or alleged claim in
question, the Purchaser shall allow, and shall procure that the
relevant Group Companies allow, the Vendors and its accountants and
professional advisers to investigate the matter or circumstance alleged
to give rise to such claim and whether and to what extent any amount is
payable in respect of such claim and for such purpose the Purchaser
shall give, and shall procure that the relevant Group Companies give,
subject to their being paid all reasonable costs and expenses, all such
information and assistance, including access to premises and personnel,
and the right to examine and copy or photograph any assets, accounts,
documents and records, as the Vendors or its accountants or
professional advisers may reasonably request. The Vendors agree to keep
all such information confidential and only to use it for the purpose of
the claim in question.
3.3 Third party claim/liability
If the claim in question is a result of or in connection with a claim
by or liability to a third party (other the Inland Revenue or overseas
equivalent whereupon the Vendors shall have the right to be kept
informed of the progress of the matter by the Purchaser and the
Purchaser shall have regard to the reasonable directions of the
Vendors) then:
3.3.1 no admission of liability shall be made by
or on behalf of the Purchaser or any Group Company;
3.3.2 the Vendors shall, subject to it first
having indemnified and secured the Purchaser to the
Purchaser's reasonable satisfaction, be entitled at its own
expense in its absolute discretion to take such action as
its shall deem necessary to avoid, dispute, deny, defend,
resist, appeal, compromise or contest such claim or
liability (including, without limitation, making
counterclaims or other claims against third parties) in the
name of and on behalf of the Purchaser or the Group Company
concerned and (subject to as aforesaid) to have the conduct
of any related proceedings, negotiations or appeals; and/or
3.3.3 the Purchaser will give and procure that the
relevant Group Company gives, subject to their being paid
all reasonable costs and expenses, including professional
costs of monitoring and reporting on the Vendors'
obligations, all such information and assistance, including
access to premises and personnel, and the right to examine
and copy or photograph any assets, accounts, documents and
records, for the purpose of avoiding, disputing, denying,
defending, resisting, appealing, compromising or contesting
any such claim or liability as the Vendors or its
professional advisers reasonably request. The Vendors agree
to keep and procure that its advisers keep all such
information confidential and only to use it for the purpose
of the Claim in question.
4 Prior Receipt
If, before the Vendors pays an amount in discharge of any claim under
this Agreement, the Purchaser or any Group Company recovers or is
entitled to recover (whether by payment, discount, credit, relief or
otherwise) from a third party a sum which is referable to the subject
matter of the claim, the Purchaser shall procure that before steps are
taken against the Vendors under this Agreement all reasonable steps are
taken to enforce such recovery and any actual recovery (less any
reasonable costs incurred in such recovery and less any taxation
attributable to the recovery after taking account of any tax relief
available in respect of any matter giving rise to the claim) shall pro
tanto reduce or satisfy, as the case may be, such claim.
5 Subsequent Recovery
If the Vendor pay an amount in discharge of any claim under this
Agreement and the Purchaser or any Group Company subsequently recovers
(whether by payment, discount, credit, relief or otherwise) from a
third party a sum which is referable to the subject matter of the claim
and which would not otherwise have been received by the Purchaser, the
Purchaser shall pay, or shall procure that the relevant Group Company
pays, to the Vendors an amount equal to (i) the sum recovered from the
third party less any reasonable costs and expenses incurred in
obtaining such recovery or (ii) if less, the amount previously paid by
the Vendors to the Purchaser.
6 Double Claims
The Purchaser shall not be entitled to recover from the Vendors under
this Agreement more than once in respect of the same damage suffered.
7 Tax
In calculating the liability of the Vendors for any breach of this
Agreement, there shall be taken into account the amount (if any) by
which any taxation for which the Purchaser or any Group Company would
otherwise have been accountable or liable to be assessed is actually
reduced or extinguished as a result of the matter giving rise to such
liability or any repayment of taxation attributable to the matter
giving rise to such liability.
Schedule 5
Properties
(follows this page)
Schedule 6
Data Room Index
(follows this page)
90017410_12.DOC
