EXHIBIT 10.1
DATED 22nd MAY 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
AND OTHERS
- and -
ELEMENTS (UK) LIMITED
- and -
LIBRA CITY CORPORATE PRINTING LIMITED
- and -
UNIDIGITAL INC.
SHARE PURCHASE AGREEMENT
BY WAY OF DEED
relating to the acquisition by
Elements (UK) Limited
of the entire issued share capital
of Libra City Corporate Printing Limited
WILDE SAPTE
LONDON
TABLE OF CONTENTS
No Clause Page No.
1. INTERPRETATION....................................................2
2. SALE AND PURCHASE................................................10
3. CONDITIONS PRECEDENT.............................................10
4. CONSIDERATION....................................................11
5. COMPLETION.......................................................15
6. DELIVERY TO SOLICITORS...........................................19
7. WARRANTIES.......................................................19
8. WARRANTIES IN RELATION TO SUBSIDIARIES...........................21
9. LIMITATION OF WARRANTORS' LIABILITY..............................21
10. RESTRICTIVE COVENANTS............................................24
11. POWER OF ATTORNEY................................................25
12. GUARANTEE OF PURCHASER'S OBLIGATIONS.............................26
13. WAIVERS..........................................................26
14. POST-COMPLETION OPERATION........................................27
15. COSTS AND WITHHOLDINGS...........................................27
16. ASSIGNMENT.......................................................28
17. ANNOUNCEMENTS....................................................28
18. JURISDICTION.....................................................29
19. NOTICES..........................................................29
20. INVALIDITY.......................................................30
21. FURTHER ASSURANCE................................................30
22. ENTIRE AGREEMENT.................................................30
23. COUNTERPARTS.....................................................31
SCHEDULE 1 - The Vendors..................................................32
SCHEDULE 2 Part 1 - The Company and the Subsidiaries......................33
SCHEDULE 2 Part 2 - The Subsidiaries......................................34
SCHEDULE 3 - Confirmation of no Claims....................................39
SCHEDULE 4 - The Warranties...............................................42
SCHEDULE 5 - The Property.................................................77
Agreed Form Documents...... Clause reference
Deed of Tax Covenant Clause 5.2.3
Disclosure Letter Clause 5.2.11
Service Agreement(s) Clause 5.2.12
Waiver of pre-emption rights Clause 3.1.1
Board minutes of the Company and Subsidiaries Clause 5.3
Stock Transfer Forms and any Powers of Attorney
required to transfer the Shares Clause 5.2.1
THIS DEED is made the day of 1997
BETWEEN:
(1) THE SEVERAL PERSONS whose names and addresses are set out in
Schedule 1 (together the "Vendors");
(2) ELEMENTS (UK) LIMITED a company incorporated in England and
Wales with registered number 02888039 and having its
registered office at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇ (the
"Purchaser");
(3) LIBRA CITY CORPORATE PRINTING LIMITED a company incorporated
in England and Wales with registered number 2339001 and having
its registered office at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇ ▇▇▇ further information about which is contained in
Schedule 2 (the "Company"); and
(4) UNIDIGITAL INC. is a Delaware corporation having its principal
place of business at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇ of America (the "Guarantor").
WHEREAS:
(A) The Vendors are together the beneficial owners of the whole of
the issued and allotted share capital in the Company and each
of the Vendors is the beneficial owner of the number of shares
in the Company set against his name in Schedule 1.
(B) The Purchaser is a wholly owned subsidiary of the Guarantor.
(C) The Vendors have now agreed to sell and the Purchaser has
agreed to buy the whole of the issued and allotted share
capital in the Company on the terms and conditions hereinafter
contained.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
In this Deed (including the Recitals and Schedules), unless the context
otherwise requires or except as otherwise expressly provided:
1.1 Definitions
"1996 Accounts" means the consolidated audited accounts of the Company and
its Subsidiaries for the period to 31st December 1996;
"1996 Turnover Figure" means the sum shown in the 1996 Accounts as the
turnover as defined therein of the Company and the Subsidiaries during the
period to which the 1996 Accounts relate, generated on sales on an arm's
length basis to third party customers and which, for the avoidance of doubt,
was (pound)3,964,753;
"1997 Turnover Figure" means the sum for all turnover of the Company and its
Subsidiaries, stated on the same basis as the 1996 Turnover Figure, for the
period from 1st January to 31st December 1997 save that such turnover as is
attributable to (a) sales to any company within the Unidigital Group, (b)
sales to any new customers introduced to the Company and/or the Subsidiaries
by any member of the Unidigital Group, or (c) sales attributable to any new
employees of the Company and/or its Subsidiaries (other than a new
international sales executive and new employees replacing existing employees
of the Company and/or its Subsidiaries after Completion) shall be excluded
for the purpose of calculating of the 1997 Turnover Figure;
"1997 Statement" means the statement to be issued by the Accountants
indicating the 1997 Turnover Figure;
"Accounts" means the consolidated audited financial statements of the
Company and the Subsidiaries including without limitation the Balance Sheet,
an audited profit and loss account (including any notes thereto) for the
financial year ended on the Last Accounts Date and all reports. accounts,
consolidated accounts and other documents required by law to be included in
or attached thereto;
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"Accountants" means Ernst & Young, Rolls House. ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"Agreed Form" means in a form approved by the Parties and initialed for
identification by the Vendors' Solicitors and the Purchaser's Solicitors;
"▇▇▇▇▇ Shares" means the 7,263 ordinary shares in the capital of the Company
held by ▇▇. ▇▇▇▇▇;
"Auditors" means ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of ▇▇. ▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇;
"Balance Sheet" means a consolidated audited balance sheet of the Company
and the Subsidiaries as at the Last Accounts Date (including the notes
thereto);
"Baronsmead" means Baronsmead Investment Trust plc of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"▇▇▇▇▇▇ Shares" means the 704 ordinary shares in the capital of the Company
held by ▇▇. ▇▇▇▇▇▇;
"Business" means the business of the Company as carried on up to the
Completion Date;
"Business Day" means any day (other than a Saturday or a Sunday) which is
not a public or bank holiday in England;
"Claim" means any claim brought by the Purchaser against the Vendors (or any
of them) pursuant to the warranties and indemnities given by the Vendors to
the Purchaser and contained in Clause 7 and Schedule 4 to this Deed, the
Deed of Covenant (Tax) and all other provisions of this Deed and all deeds
and documents entered into pursuant to this Deed and "Claims" shall be
construed accordingly;
"Chase Shares" means the 4,569 ordinary shares in the capital of the Company
held by Chase Nominees on behalf of Invesco;
"Chase Nominees" means Chase Nominees Limited of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
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"Companies Act" means the Companies ▇▇▇ ▇▇▇▇ as amended from time to time;
"Completion" means the completion of the sale and purchase of the Shares in
accordance with Clause 5;
"Completion Accounts" means the Completion Balance Sheet and the unaudited
profit and loss account of the Company for the period ending on 30th April
1997 to be prepared by the existing management of the Company and to be
reviewed by the Auditors and the Accountants in accordance with Clause 4.3;
"Completion Balance Sheet" means the unaudited balance sheet (including the
notes thereto) of the Company ant its Subsidiaries as at 30th April 1997 to
be prepared in accordance with Clause 4 ant, if such balance sheet shall be
adjusted pursuant to the provisions of Clause 4, means such balance sheet as
so adjusted;
"Completion Date" means the date hereof;
"Conditions Precedent" means the conditions set out in Clause 3;
"Deed of Tax Covenant" means a deed of covenant in the Agreed Form to be
executed by the Vendors and delivered on Completion in accordance with
Clause S.2.3;
"Dellow Shares" means the 312 ordinary shares in the capital of the Company
held by ▇▇. ▇▇▇▇▇▇;
"Disclosure Letter" means the letter of even date herewith in the Agreed
Form expressly referring to Clause 7 and which is delivered to the Purchaser
by or on behalf of the Vendors before the signing of this Deed;
"Group" means a holding company and its subsidiaries as the same are defined
in section 736 of the Companies Act 198S;
"Intellectual Property Rights" means all patents, trade marks and service
marks (whether registered or not), registered design rights, utility models,
applications for any of the foregoing and the right to apply for any of the
foregoing in any part of the world, copyright, design rights, inventions,
confidential information, trade secrets, know-how, production data, business
or trade names and any other
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intellectual property rights or similar rights situated in any country and
the benefit (and burden) of any and all licenses in connection with any of
the foregoing;
"Invesco" means Invesco English and International Trust plc of ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"Investors" means Baronsmead and Invesco;
"Last Accounts Date" means 31st December 1996;
"Lease" means the lease of the Property dated 24th January 1994 between ( 1)
the Haberdashers Company (Governors of ▇▇▇▇▇▇ ▇▇▇▇'▇ Charity) and (2) Libra
City Corporate Printing Limited;
"Libra Group" means the Group of companies of which the Company is the
holding company;
"MIMDC" means Baronsmead Ventures Nominees Limited (previously MIMDC
Nominees Limited and Invesco Ventures Nominees Limited) of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"MIMDC Shares" means the 2,538 ordinary, shares in the capital of the
Company held by MIMDC on behalf of Baronsmead;
"▇▇. ▇▇▇▇▇" means ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇ ▇▇▇;
"▇▇. ▇▇▇▇▇▇" means ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"▇▇. ▇▇▇▇▇▇" means ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ of ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇;
"▇▇. ▇▇▇▇▇" means ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ of ▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇;
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"Net Asset Value" means the aggregate of the value of the assets of the
Company (after the deduction of the amount of any dividend paid pursuant to
Clause 3.4 of this Agreement including all taxes payable by the Company in
respect thereof) and the Subsidiaries less the aggregate of the value of its
liabilities (whether actual, contingent or deferred) as at 30th April 1997
as calculated in accordance with Clause 4 and as shown in the Completion
Balance Sheet;
"Property" means the property short details of which are set out in Schedule
5;
"Purchaser" means Regent Communications (UK) Limited or its successors in
title and assigns (as the case may be);
"Purchaser's Solicitors" means Wilde Sapte of ▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇;
"Relevant Percentage" means in relation to each Vendor. the following
percentage:
100% x A
---
B
Where:
A is the consideration to be paid to that Vendor as listed in Clause 4.1;
and
B is the total consideration to be paid to the Vendors as listed in Clause
4.1;
"Restricted Period" means, in the case of ▇▇. ▇▇▇▇▇ the period commencing on
the date hereof and ending two (2) years from the date hereof and in all
other cases the period commencing on the date hereof and ending one (1) year
from the date hereof;
"Review" means the review required to be given by the Auditors and the
Accountants pursuant to Clause 4.3 and. if such review shall be adjusted
pursuant to the provisions of Clause 4 means such review as so adjusted;
"Service Agreements" means the service agreements in the Agreed Form to be
executed by the Company and ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇ together with the side
letter to the Service Agreement between the Company and ▇▇. ▇▇▇▇▇ dated 18th
July 1989 in the Agreed Form to be executed by the Company and ▇▇. ▇▇▇▇▇,
all of which are to be delivered on Completion in accordance with Clause 5.
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"Shares" means the ▇▇▇▇▇ Shares, the ▇▇▇▇▇▇ Shares, the Chase Shares, the
Dellow Shares, the MIMDC Shares and the Tylee Shares;
"Statement" means the statement to be prepared jointly by the Accountants
and the Auditors in accordance with Clause 4.4;
"Subsidiaries" means the companies listed in Part 2 of Schedule 2;
"Tax" includes all present and future taxes, charges, imposts, duties,
levies, deductions, withholdings or fees of any kind whatsoever, or any
amount payable on account of or as security for any of the foregoing,
payable at the instance of or imposed by any statutory, governmental,
international, state, federal, provincial, local or municipal authority,
agency, body or department whatsoever or European Union institution, in each
case whether in the United Kingdom or elsewhere, together with any
penalties, additions, fines. surcharges or interest relating thereto, and
"Taxation" and cognate expressions shall be construed accordingly;
"Taxes Act" means the Income and Corporation ▇▇▇▇▇ ▇▇▇ ▇▇▇▇;
"TCGA 1992" means the Taxation of Chargeable Gains ▇▇▇ ▇▇▇▇;
"Tylee Shares" means the 234 ordinary shares in the capital of the Company
held by ▇▇. ▇▇▇▇▇;
"Unidigital Group" means the group of companies of which the Guarantor is
the holding company;
"United Kingdom" means England, Wales, Scotland and Northern Ireland as
defined in Schedule 1 to the Interpretation ▇▇▇ ▇▇▇▇ and includes the
territorial sea of the United Kingdom and any area designated by Order in
Council under sub-section 1(7), Continental Shelf ▇▇▇ ▇▇▇▇;
"VAT" means value added tax as provided for in VATA 1994 and legislation (or
purported legislation and whether delegated or otherwise) supplemental
thereto and any tax similar or equivalent to value added tax imposed by any
country other than the United Kingdom and any similar or turnover tax
replacing or introduced in addition to any of the same;
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"VATA 1994" means the Value Added Tax ▇▇▇ ▇▇▇▇;
"Vendors" means the several persons whose names and addresses are set out in
Schedule 1 or their respective personal representatives and estates;
"Vendors' Solicitors" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇ ▇ ▇ ▇▇ ▇;
"Warranties" means the representations, warranties and understandings
referred to in Clause 7.1 and set out in Schedule 4;
"Warrantors" means ▇▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇.
1.2 Interpretation
1.2.1 any reference to the provisions of any statute or subordinate
legislation or of any rule made by a local authority and having the effect
of law shall be deemed to refer to:
1.2.1.1 the same as in force (including any amendment or re-enactment
or consolidation before or after the date hereof) for the time
being; and
1.2.1.2 the provisions of any earlier statute or subordinate
legislation or of any rule made by a local authority of which
the said reference is itself an amendment or re-enactment or
consolidation;
1.2.2 any reference to a person being "connected with" another person means:
1.2.2.1 any person connected with such other person (and "connected
with" bears the meaning set out in section 839 of the Taxes
Act); and/or
1.2.2.2 any company under the control of such other person (and
"control" bears the meaning set out in section 840 of the
Taxes Act);
1.2.3 words and expressions defined in the Companies ▇▇▇ ▇▇▇▇ and/or the
Companies ▇▇▇ ▇▇▇▇ shall bear the same meanings herein;
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1.2.4 words denoting one gender include all genders, words denoting individuals
or persons include corporations and trusts and vice versa, words denoting
the singular include the plural and vice versa, and words denoting the
whole include a reference to any part thereof;
1.2.5 clause and paragraph headings are inserted for ease of reference only and
shall not affect construction;
1.2.6 references to Recitals, Clauses, Paragraphs and Schedules are to the
recitals, clauses, paragraphs and schedules of and to this Deed;
1.2.7 references to this Deed mean this Deed together with its Recitals and
Schedules and reference to this Deed or any document or agreement includes
references to such document or agreement as amended, novated,
supplemented, varied or replaced from time to time with the agreement of
the Parties;
1.2.8 references to a Party means a party to this Deed and shall include that
person's permitted assigns, transferees or successors in title in
accordance with the teens of this Deed;
1.2.9 the words "including", "include" and "in particular" shall be construed as
being by way of illustration only and shall be construed as limiting the
generality of any foregoing words;
1.2.10 references to any English legal term any action, remedy, method of
judicial proceeding, legal document, legal status, court, official or any
other legal concept shall, in respect of any jurisdiction other than
England, be deemed to include the legal concept which most nearly
approximates in that jurisdiction to the English legal term; and
1.2.11 any reference to an amount in pounds sterling shall include the
equivalent in any other currency or combination of currencies.
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2. SALE AND PURCHASE
2.1 Each of the Vendors shall sell or procure the sale with full title guarantee
with effect from Completion the number of the Shares set out opposite his or
her name in Schedule 1 and the Purchaser relying on the representations,
warranties and undertakings herein contained and the covenants contained in
Clause 10 but subject to Clause 2.2 shall buy the Shares together with all
dividends, distributions and rights declared, paid, created or arising after
the Completion Date or attaching thereto and free from all claims, charges,
liens, encumbrances, options, equities, rights of pre-emption or other third
party rights.
2.2 The Purchaser shall not be obliged to complete the purchase of any of the
Shares unless the purchase of all the Shares is completed simultaneously in
accordance with this Deed.
2.3 The covenants implied herein pursuant to the Law of Property (Miscellaneous
Provisions) ▇▇▇ ▇▇▇▇ ("LP(MP)A") shall apply:
2.3.1 as modified or extended by the express terms of the Warranties;
2.3.2 as if the covenant set out in section 3(1) of LP(MP)A ended after the
word "parties"; and
2.3.3 as if section 6(2) of LP(MP)A did not apply.
3. CONDITIONS PRECEDENT
3.1 Completion of the sale and purchase of the Shares shall be conditional upon
the following conditions having been fulfilled:
3.1.1 the delivery to the Purchaser of the waivers in the Agreed Form by
each of the Vendors (and by any nominee of any of the Vendors) of all
and any rights of pre-emption to which he (or any nominee) may be
entitled under the Articles of Association of the Company, by
agreement, by statute or otherwise in respect of and transfer of
Shares contemplated by this Deed;
3.1.2 the repayment of all sums (if any) owing to the Company by (a) the
Vendors or the directors of the Company or any of them or (b) by any
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person connected with any of the Vendors or director or any company
directly or indirectly controlled by such persons or any of them or
(c) any partnership in which such persons or company is a partner and
whether or not such sums are due for repayment including but not
limited to the repayment of all sums (if any) outstanding in respect
of the director's loan account;
3.1.3 the release of the Company (without payment of compensation) from any
debenture, charge, guarantee, cross-guarantee, indemnity,
counter-indemnity, bond, security, assurance or other contingent
liability of whatsoever nature or other similar obligation which
relates or could be made to relate in whole or in part to debts or
other liabilities or obligations, whether actual or contingent and
whether now or hereinafter incurred, of any other person; and
3.1.4 the release of the Company ( without payment of compensation) from all
agreements and arrangements (other than as required by the Purchaser
and other than those entered into with the Investors in the ordinary
course of business) between the Company on the one hand, and any
Vendor or person connected with any of the Vendors on the other hand.
3.2 Each of the Vendors undertakes to use his reasonable endeavours to ensure
that the Conditions Precedent are fulfilled as soon as reasonably
practicable and, in any event, by Completion.
3.3 The Purchaser shall be entitled in its absolute discretion, by written
notice to the Vendors, to waive any or all of the Conditions Precedent
either in whole or in part.
3.4 The Company shall be entitled to make a pre-completion dividend of an amount
not totalling more than (pound)70,000 provided that such dividend shall only
be paid in accordance with the provisions of the Companies Act and all other
applicable legislation.
4. CONSIDERATION
4.1 Subject to the remaining provisions of this Clause 4 the consideration for
the Shares shall be as follows:
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4.1.1 in respect of the ▇▇▇▇▇ Shares, the payment to ▇▇. ▇▇▇▇▇ of an amount
equal to the sum of (pound)807,213;
4.1.2 in respect of the ▇▇▇▇▇▇ Shares, the payment to ▇▇. ▇▇▇▇▇▇ of an
amount equal to the sum of (pound)85,635;
4.1.3 in respect of the Chase Shares, the payment to lnvesco of an amount
equal to the sum of (pound)555,768;
4.1.4 in respect of the Dellow Shares, the payment to ▇▇. ▇▇▇▇▇▇ of an
amount equal to the sum of (pound)37,951,
4.1.5 in respect of the MIDMC Shares, the payment to Baronsmead of an amount
equal to the sum of (pound)308,719; and
4.1.6 in respect of the Tylee Shares, the payment to ▇▇. ▇▇▇▇▇ of an amount
equal to the sum of (pound)28,464.
4.2 The Purchaser shall procure that the Accountants issue to the Purchaser and
the Vendors the 1997 Statement, stating the 1997 Turnover Figure, by 31st
March 1998. Thereafter:
4.2.1 the Vendors shall have the right within one month of receipt of the
1997 Statement to require the Auditors to consider the 1997 Statement
and the Vendors shall notify the Purchaser's Solicitors in writing
within such one month period if they wish to exercise their right
contained in this Clause 4.2.1. The Purchaser shall instruct the
Accountants to make available to the Vendors and the Auditors all
papers, documents and other information necessary to enable the
Auditors properly to consider the 1997 Statement.
4.2.2 If the Auditors and the Accountants shall disagree as to the 1997
Turnover Figure but shall be able to resolve their difference or
dispute concerning the same prior to the appointment of an expert
pursuant to Clause 4.2.3, then in such event the Auditors and the
Accountants shall jointly certify the 1997 Turnover Figures.
4.2.3 If the Auditors and the Accountants shall be unable to agree as to the
1997 Turnover Figure, the Vendors or the Purchaser shall be entitled,
on five (5) Business Days' notice in writing to the other of its
intention to do so, at
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any time after one month following notification by the Vendors to the
Purchaser's Solicitors of its wish to exercise its right contained in
Clause 4.2.1 and before the Auditors and the Accountants shall have
jointly certified the amounts of the 1997 Turnover Figure pursuant to
Clause 4.2.2, to refer the matter to an independent chartered
accountant (who shall act as expert and not as arbitrator) appointed
for the purpose jointly by the Parties or, in the absence of agreement
as to the appointment of such independent chartered accountant within
ten (10) Business Days, on the application by either Party, by the
President for the time being of the Institute of Chartered Accountants
in England and Wales, and who shall be instructed to settle the
differences between the Auditors and the Accountants relating to 1997
Turnover Figure. The costs of such independent chartered accountant
shall be borne by the Vendors and the Purchaser in such proportions as
the said independent chartered accountant shall direct at his sole
discretion.
4.2.4 The said independent chartered accountant shall be requested to
certify the amount of the 1997 Turnover Figure to the Parties, which
certificate shall be final and binding on the Parties for the purposes
of this Clause 4.2.
4.2.5 In addition to the consideration set out in Clause 4.1, if the 1997
Turnover Figure (as finally determined pursuant to Clauses 4.2.1 to
4.2.4 above) is greater than (pound)3,250,000, the Purchaser will pay
to the Vendors a further sum of up to (pound)500,000 as additional
consideration for the Shares in accordance with the following formula:
(pound)500,000 x X - (pound)3,250,000
--------------------
(pound) 650,000
where:
X = the 1997 Turnover Figure
4.2.6 Any payment to be made pursuant to this Clause 4.2 by the Purchaser to
the Vendors shall be made within 10 Business Days of the final
determination of the 1997 Turnover Figure to Clauses 4.2.1 to 4.2.4
above.
4.3 The Vendors shall procure as soon as possible following Completion and in
any event by the date that is three (3) months after the Completion Date the
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preparation by the Company of accounts of the Company as at 30th April 1997
and for the period from the Last Accounts Date to 30th April 1997 and the
review by the Auditors and the Accountants of such accounts which shall be
prepared in accordance with the accounting policies, principles and
practices on which the Accounts and the accounts of the Company and the
Subsidiaries for each of the two immediately preceding financial years of
the Company and the Subsidiaries were prepared (without any reevaluation of
assets). In particular, the Completion Accounts shall include accruals for
any holiday pay, pension or bonus entitlement and any other sums or rights
to which any employee of the Company may be entitled as at 30th April 1997.
For the purposes of preparing such accounts a valuation of the
stock-in-trade held by the Company and the Subsidiaries as at Completion for
use in the operation of its business shall be made at or immediately
following 30th April 1997 by the Parties jointly such valuation to be agreed
by the Parties on the basis that:
4.3.1 the value of each item of stock and each item of work-in-progress
shall be the lower of cost (on a first in, first out valuation) or net
realisable value; and
4.3.2 all redundant, obsolete, used, damaged or unsaleable stock and
irrecoverable work-in-progress costs shall be given no value.
4.4 The Vendors shall procure that, if the Auditors and Accountants agree the
Review and the Net Asset Value. the Auditors and the Accountants shall, as
soon as possible following completion of the preparation of the Completion
Accounts pursuant to Clause 4.3 and in any event by the date that is three
(3) months after the Completion Date, jointly produce a statement
stipulating:
4.4.1 the amount of the Net Asset Value after the deduction of the amount of
any dividend (including all taxes payable by the Company in respect
thereof) paid pursuant to Clause 3.4; and
4.4.2 that the Completion Accounts have been prepared in accordance with
Clause 4.3.
4.5 If the Auditors and the Accountants shall disagree as to the Net Asset Value
but shall be able to resolve their difference or dispute concerning the same
prior to the appointment of an expert pursuant to Clause 4.6, then in such
event the Auditors and the Accountants shall jointly certify, the amounts of
the Net Asset Value.
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4.6 If the Auditors and the Accountants shall be unable to agree as to the Net
Asset Value, the Vendors or the Purchaser shall be entitled, on five (5)
Business Days' notice in writing to the other of its intention to do so, at
any time after the expiry of the three (3) month period referred to in
Clause 4.3 and before the Auditors and the Accountants shall have jointly
reported the amounts of the Net Asset Value pursuant to Clause 4.5, to refer
the matter to an independent chartered accountant (who shall act as expert
and not as arbitrator) appointed for the purpose jointly by the Parties or,
in the absence of agreement as to the appointment of such independent
chartered accountant within ten (10) Business Days, on the application by
either Party, by the President for the time being of the Institute of
Chartered Accountants in England and Wales, and who shall be instructed to
settle the differences between the Auditors and the Accountants relating to
Net Asset Value. The costs of such independent chartered accountant shall be
borne by the Vendors and the Purchaser in such proportions as the said
independent chartered accountant shall direct at his sole discretion.
4.7 The said independent chartered accountant shall be requested to certify the
amount of the Net Asset Value to the Parties, which certificate shall be
final and binding on the Parties for the purposes of this Clause 4.7.
4.8 On the day which falls ten (10) Business Days after the Net Asset Value has
been finally agreed in accordance with the above provisions of Clause 4, if
the Net Asset Value is less than (pound)823,750 the Vendors shall pay to the
Purchaser the amount by which the Net Asset Value is less than
(pound)823,750 which shall be treated as a reduction in the consideration.
4.9 Any payment to be made pursuant to Clause 4.2 by the Purchaser to the
Vendors shall be effected by the payment by the Purchaser to each of the
Vendors of that Vendor's Relevant Percentage of the total sum to be paid.
4.10 Any payment to be made pursuant to Clause 4.8 by the Vendors to the
Purchaser shall be effected by payment to the Purchaser by each of the
Vendors of that Vendor's Relevant Percentage of the total sum to be paid.
5. COMPLETION
5.1 Completion shall take place on the date hereof at the offices of the
Purchaser's Solicitors (or as otherwise agreed between the Parties).
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5.2 At Completion the Vendors shall deliver (where appropriate as agent for the
Company and the Subsidiaries) to the Purchaser:
5.2.1 transfers in Agreed Form in respect of the Shares duly executed by the
registered holders thereof in favour of the Purchaser or its nominees;
5.2.2 certificates for the Shares (or an indemnity, in a form acceptable to
the Purchaser, for any lost certificate in respect thereof) and any
other documents (including any necessary waivers or consents) which
may be required to give good title to the Shares and to enable the
Purchaser to procure registration of the same in its name or as it may
direct;
5.2.3 the Deed of Tax Covenant duly executed by each of the Warrantors;
5.2.4 the Disclosure Letter duly executed by or on behalf of the Warrantors;
5.2.5 the resignations under seal of all the directors and the secretary of
the Company and the Subsidiaries substantially in the form set out in
Part I of Schedule 3 and confirmation under seal by each of the
Vendors in the form set out in Part 2 of Schedule 3 that they have no
claims against the Company or any of the Subsidiaries;
5.2.6 cheque books in respect of all bank accounts operated by the Company
and the Subsidiaries together with bank balances as at the close of
business on 21st May 1997 relating to such accounts and a
reconciliation of such bank statements to the cash books of the
Company and the Subsidiaries;
5.2.7 the certificate of incorporation, certificate of incorporation on
change of name, common seal, statutory register, minute book, share
certificate book and all other books of the Company (all duly written
up to date save for matters relating to the sale and purchase referred
to herein);
5.2.8 all title deeds and documents relating to the Property which comprises
the Lease and copy Court Order preceding it;
5.2.9 the resignation of the Auditors in the form set out in Part 3 of
Schedule 3 together with a duplicate thereof;
-16-
5.2.10 the Service Agreements duly executed by Messrs. ▇▇▇▇▇. ▇▇▇▇▇▇ and
Dellow;
5.2.11 any power of attorney under which any document required to be
delivered under this Clause 5 has been executed.
5.3 The Vendors shall procure that resolutions of the Board of Directors of the
Company and each of the Subsidiaries arc passed and the Vendors shall
deliver to the Purchaser certified copies of such board resolutions, in the
Agreed Form, at Completion:
5.3.1 authorising the execution of and the performance by the Company and
each of the Subsidiaries of its obligations under each of the
documents to be executed by it;
5.3.2 recording acceptance of the migration from office of all the directors
and the secretary and the auditors of the Company and each of the
Subsidiaries;
5.3.3 revoking all existing authorities in respect of all bank accounts
operate by the Company and each of the Subsidiaries and approving the
opening of such new bank accounts at such banks as the Purchaser shall
nominate and the transfer of such funds to such new accounts from
existing bank accounts of the Company and each of the Subsidiaries as
the Purchaser shall specify;
5.3.4 approving (subject only to proper stamping) the transfers of the
Shares delivered hereunder and any shares in the Subsidiaries;
5.3.5 approving (subject only to proper stamping) the placing on the
register of members of the Company and the Subsidiaries (as the case
may be) of the names of the transferees for registration in accordance
with the share transfer forms referred to above and authorizing the
issue of appropriate share certificates;
5.3.6 recording the appointment of such persons as the directors (within the
maximum number permitted by the articles of association of the
relevant company), secretaries and auditors of the Company and the
Subsidiaries as the Purchaser shall nominate;
-17-
5.3.7 changing the situation of the registered office of the Company and the
Subsidiaries to such place as the Purchaser may direct; and
5.3.8 adopting a new accounting reference date of the Company and the
Subsidiaries.
5.4 Provided that the Vendors comply with all their obligations under Clauses
5.1, 5.2 and 5.3 (subject only to the Purchaser fulfilling its obligations
under this Clause 5.4) the Purchaser shall at Completion:
5.4.1 pay to each of the Vendors the sums set out in Clause 4.1 as
consideration for the Shares held by that Vendor, such payment to be
made either by way of a banker's draft in favour of or by way of
telegraphic transfer to the client account of the Vendor's Solicitors
and provided that such payment shall be subject to the provisions of
Clause 4.8;
5.4.2 deliver to the Vendors duplicates of the Deed of Tax Covenant
executed by the Purchaser and the Company;
5.4.3 deliver to each of Messrs. ▇▇▇▇▇, ▇▇▇▇▇▇ and Dellow a duplicate of
the relevant Service Agreement duly executed by the Company.
5.5 If for any reason the provisions of Clauses 5.1 to 5.3 are not fully
complied with the Purchaser shall be entitled (in addition and without
prejudice to any other right or remedy available to it) to elect:
5.5.1 to rescind this Deed without any liability on the part of the
Purchaser; or
5.5.2 to fix a new date for Completion in which event the provisions of
this Clause 5.5 shall apply, mutatis mutandis, if the Vendors fail or
are unable to perform any such obligations on such other date; or
5.5.3 to proceed to Completion so & as practicable, the Vendors then being
obliged to use their best endeavours to perform or procure the
performance of any of the outstanding provisions of Clauses 5.1 and
5.3 by such later date as is specified by the Purchaser.
-18-
6. DELIVERY TO SOLICITORS
The solicitors to any Party are authorized to take delivery on behalf of
such Party of any items hereunder and their receipt shall be a good
discharge therefor to the Party and the solicitors to the Party making
delivery.
7. WARRANTIES
7.1 The Warrantors hereby jointly and severally represent to, warrant to and
undertake with the Purchaser that, save for and to the extent that any
relevant fact, matter, event or circumstance giving rise to a claim under
the relevant Warranty was fairly and accurately disclosed in the Disclosure
Letter in respect thereof. or was done or omitted to be done at the written
request of the Purchaser, each of the Warranties is as at Completion true
and correct and not misleading and so that:
7.1.1 each Warranty shall be, and shall be construed as. a separate
representation, warranty and undertaking by each of the Warrantors to
and with the Purchaser and (save as expressly provided to the
contrary) shall not be limited or restricted by reference to or
inference from the terms of any other Warranty or any other terms of
this Deed the Deed of Tax Covenant and the Disclosure Letter other
than the factual disclosure letter;
7.1.2 each Warranty is a fundamental condition of this Deed on the basis
of, and in reliance upon, which the Purchaser has entered into its
obligations hereunder;
7.1.3 to the extent that any Warranty relates to present or past matters of
fact the Warrants shall be deemed to constitute a representation on
the faith of, and in reliance upon, which the Purchaser has entered
into this Deed;
7.1.4 the rights and remedies of the Purchaser in respect of the Warranties
and the liability of the Warrantors under the Warranties shall not be
confined to breaches discovered before Completion, or in any way
affected, modified or discharged by Completion.
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7.2 Where any statement in the Warranties is qualified by the expression "to the
best of the knowledge, information and belief of the Warrantors" or "so far
as the Warrantors are aware" or any similar expression:
7.2.1 each Warrantor shall be deemed to have knowledge of:
(a) anything of which any of the other Warrantors has knowledge, or
is deemed by Clause 7.2.1 (b) to have knowledge of;
(b) where applicable, anything of which he ought reasonably to have
knowledge given his responsibilities to the Company; and
(c) anything of which he would have had knowledge had he made due and
careful enquiry immediately before giving the Warranties; and
7.2.2 such expression shall be construed as a separate warranty that each
Warrantor shall have made full and proper enquiries as to the
accuracy, completeness and correctness of that statement.
7.3 The Investors hereby severally represent to, warrant to and undertake with
the Purchaser that each of the Warranties contained in paragraphs 2.1 and 3
of Part 1 of Schedule 4 so far as they relate to their own shareholding is
as at Completion true and correct and not misleading and so that:
7.3.1 each such Warranty shall be, and shall be construed as, a separate
representation, warranty and undertaking by each of the Investors to
and with the Purchaser and (save as expressly provided to the
contrary) shall not be limited or restricted by reference to or
inference from the terms of any other Warranty or any other terms of
this Deed the Deed of Tax Covenant and the Disclosure Letter other
than the factual disclosure letter;
7.3.2 each such Warranty is a fundamental condition of this Deed on the
basis of, and in reliance upon, which the Purchaser has entered into
its obligations hereunder;
7.3.3 to the extent that any such Warranty relates to present or past
matters of fact the Warranty shall be deemed to constitute a
representation on the faith of, and in reliance upon, which the
Purchaser has entered into this Deed;
-20-
7.3.4 the rights and remedies of the Purchaser in respect of such
Warranties and the liability of the Investors under the Warranties
shall not be confined to breaches discovered before Completion, or in
any way affected, modified or discharged by Completion.
8. WARRANTIES IN RELATION TO SUBSIDIARIES
In addition to and without prejudice to the Warranties referred to in
Clauses 7.1 and 7.2 and set out in Schedule 4, the Warrantors further
jointly and severally represent to. warrant to and undertake with the
Purchaser in respect of each of the Subsidiaries as if Clauses 7.1 and 7.2
and Schedule 4 had been set out herein in full for each of the Subsidiaries
but with the substitution therein of the name of the relevant Subsidiary in
place of the words "the Company" wherever the same appear.
9. LIMITATION OF WARRANTORS' LIABILITY
9.1 The liability of the Warrantors for breach of or under any of the Warranties
shall be limited as follows:
9.1.1 no claim may be made against the Warrantors in respect of any such
liability unless notice of such claim is served on the Warrantors in
writing specifying in reasonable detail the nature of the claim as
soon as reasonably practicable after the Purchaser becomes aware that
circumstances giving rise to such claim have arisen and in any event
before 31st December 1998 (or with respect to any Warranty relating to
Tax within six years of Completion);
9.1.2 the Warrantors shall not be liable to the extent that the amount of
the claim or claims against them in respect of any such liability
exceeds (or would when aggregated with the amount of all previous
claims against any of the Warrantors in respect of any such
liabilities exceed) the total consideration received by them pursuant
to this Deed for the Shares;
9.1.3 the Warrantors shall not in any event be liable to the Purchaser
unless a claim or claims can be validly made against them exceeding in
aggregate
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the sum of (pound)15,000 but, in the event such sum is exceeded, the
Warrantors shall be liable for the entire amount thereof and not only
for the excess; and
9.1.4 the Purchaser shall promptly reimburse to the relevant Warrantor(s)
an amount equal to any sum paid by such Warrantor(s) in respect of any
such liability which is subsequently recovered by the Purchaser or the
Company (as the case may be) from any third party.
9.2 No liability of the Warrantors in respect of any breach of or claim in
respect of any Warranty or Indemnity shall arise to the extent the subject
matter of the claim is taken into account in computing any payment to be
made to the Warrantors (or any of them) pursuant to Clause 4.2 or any
adjustment in the consideration to be paid for the Shares pursuant to Clause
4.10.
9.3 If the Purchaser is entitled to make a claim against the Warrantors in
respect of a matter by reason of the Warranties. undertakings.
representations and obligations contained in this Deed and a claim may be
made in respect of the same matter under the Deed of Tax Covenant, it is
agreed that to the extent that recovery in respect of that matter may be
obtained under this Deed a claim shall be made only under the terms of this
Deed and not under the Deed of Tax Covenant.
9.4 The Purchaser and the Company shall not be entitled to recover the same sum
or for the same loss more than once in respect of any claim under or breach
of any of the Warranties or Deed of Tax Covenant and shall not otherwise
obtain reimbursement or restitution more than once in respect of any cause
of action giving rise to any breach of the Warranties or claim under the
Deed of Tax Covenant.
9.5 Notwithstanding anything expressed or implied in this Deed to the contrary,
any payment by the Warrantors pursuant to this Deed or the Deed of Tax
Covenant shall be treated for all purposes by the Parties as a reduction in
the consideration payable for the Shares and Clause 4 shall be modified
accordingly.
9.6 Each of the Warrantors shall be jointly and severally liable in the event of
any breach of the warranties. representations, undertakings, indemnities,
covenants, agreements and obligations of the Warrantors under this Deed
provided that the Purchaser may release or compromise the liability of any
of the Warrantors hereunderor grant to any of the
-22-
Warrantors time or other indulgence without affecting the liability of any
other of the Warrantors hereunder.
9.7 As soon as reasonably practicable after becoming aware of a claim or a
matter or circumstance comes to the attention of the Purchaser for which
the Warrantors ma' be liable under the Warranties, the Purchaser shall
notify the Warrantors in writing and provide them with all reasonably
available supporting documentation and evidence relating to such claim and
shall allow the Warrantors to inspect the files and records of the Company
relating to the same and to take copies of relevant documents. Subject to
the Warrantors first providing the Company and the Purchaser with
satisfactory security or indemnity in respect of all costs, losses, damages
or claims which may thereby be incurred, the Purchaser and/or the Company
shall take such action as the Warrantors may reasonably request to avoid,
dispute, resist, compromise, defend or appeal against such claim including
(without prejudice to the generality of the foregoing) instructing
professional advisers nominated by the Warrantors to act in the name of or
on behalf of the Purchaser and/or the Company but in accordance with the
instructions of the Warrantors so that such action shall be delegated
entirely to the Warrantors, save that the Warrantors shall not pay or
settle or appeal any such claim against an ongoing customer of the Company
without the prior written consent of the Purchaser (such consent not to be
unreasonably withheld or delayed), and provided always that if following
intimation of any such claim by the Purchaser, the Warrantors shall fail to
pursue the defense thereof with prompt dispatch, the Purchaser shall be
free to pay or settle same on such terms and conditions as they think fit,
and to recover the amount of such claim and relative expenses from the
Warrantors.
9.8 The Warrantors shall not be liable for any claim which would not have
arisen but for an act or omission or transaction of the Company or the
Purchaser occurring after the Completion Date, otherwise than in the
ordinary course of business.
9.9 The Warrantors shall not be liable for any claim which would not have
arisen but for legislation passed after Completion which is retrospective
in effect.
9.10 The amount of any claim shall take into account any tax benefit accruing to
the Purchaser or the Company or the amount of any relief from or deduction
available to the Purchaser or the Company in respect of Taxation directly
or specifically arising by virtue of the loss and damage in respect of
which the claim is made.
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10. RESTRICTIVE COVENANTS
10.1 Each of the Warrantors save in respect of Clauses 10.1. I to 10.1.3
inclusive which shall relate only to ▇▇ ▇▇▇▇▇ hereby covenants with the
Purchaser and the Company that he will not, either alone or jointly with
others, whether as principal, agent, director, shareholder, independent
contractor, employee or in any other capacity, whether directly or
indirectly through any other person, firm or company and whether for his
own benefit or that of others:
10.1.1 for the Restricted Period within fifty (50) miles of the City of
London be engaged in or carry on or be interested in or concerned
in (except as the holder together with any connected persons of not
more than three (3) per cent. in aggregate of any class of
securities of a company which class is listed or dealt in on a
recognized stock exchange in the United Kingdom or elsewhere) any
business in competition with the Business unless previously agreed
in writing between the relevant Vendor and the Purchaser;
10.1.2 for the Restricted Period solicit for a business similar to or
competing with the Business the custom or business of any person,
firm or company from whom the Company has within two (2) years
before the date received an order for goods or services and who has
for that purpose had contact with any of the Vendors nor attempt to
discourage any such person, firm or company from whom the Company
has within two (2) years before Completion received an order for
services from dealing with the Company;
10.1.3 for the Restricted Period solicit or entice away any officer or
employee of the Company or do any act whereby any such officer or
employee is encouraged to leave the employ of the Company, whether
or not such officer or employee would by reason of leaving the
service of the Company, commit a breach of his contract of
employment;
10.1.4 at any time after the date hereof use the names "Libra City
Corporate Printing", "Libra City Printers", "Libra City Printers
(International)", "Libra City (Annual Reports)", "Cityset",
"Cityset Communications" or "Cityset Print" or any colourable
imitation thereof or any name likely to cause confusion therewith
in the minds of members of the public for the purposes of a
business similar to or competing with the Business whether by using
such name as part of a corporate name or otherwise;
-24-
10.1.5 at any time after the date hereof make use of or disclose any
secret or confidential information relating to the Company or to
the Business which may have been acquired by him in his capacity as
a shareholder, officer or employee of the Company; or
10.1.6 at any time after the date hereof do or say anything harmful to
the reputation of the Business or which leads or may lead any
person, firm or company to cease to do business with the Company on
substantially equivalent terms to those previously offered or not
to engage in business with the Company,
save that nothing contained in this Clause 10.1 shall prevent any of the
Warrantors from performing his duties under any service agreement with the
Company for so long as such service agreement remains in force.
10.2 Each of the Vendors will provide promptly such information within his
knowledge, possession or control as the Purchaser or the Company may
reasonably require in relation to the Business or the activities of any
person, firm or company competing with the Business.
10.3 Each of the covenants contained in Clause 10.1 shall be a separate covenant
by each of the Vendors and shall be enforceable by the Purchaser and by the
Company independently of any right to enforce any other covenant or
obligation howsoever arising.
10.4 Each of the restrictions contained in Clause 10.1 is considered reasonable
by the Parties for the legitimate protection of the Business and goodwill
of the Company, but in the event that any such restriction shall be found
to be void but would be valid if some part thereof was deleted or the
scope, period or area of application were reduced, such restriction shall
apply with the deletion of such words or such reduction of scope, period or
area of application as may be required to limit such restrictions to what
is required for the legitimate protection of such Business and goodwill.
11. POWER OF ATTORNEY
11.1 Each of the Vendors hereby irrevocably and unconditionally appoints the
Purchaser or any director of the Purchaser as the Purchaser shall direct as
his attorney `with full ▇▇▇▇▇▇ of substitution in his name and on his
behalf (and to the
-25-
complete exclusion of any rights he may have in such regard) lawfully to
exercise all voting and other rights and receive all benefits and
entitlements which may now or at any time hereafter attach to the Shares
of which he is the beneficial owner and to transfer and deal with such
Shares and such rights, benefits and entitlements and execute such
documents under hand or under seal and do such acts and things in
connection with the foregoing as the Purchaser shall from time to time
think fit in all respects as if the Purchaser were the absolute legal
and beneficial owner thereof.
11.2 Each of the Vendors hereby undertakes to the Purchaser to ratify everything
that the Purchaser shall lawfully do or purport to do pursuant to this
Clause 11.
12. GUARANTEE OF PURCHASER'S OBLIGATIONS
12.1 The Guarantor hereby guarantees to the Vendors the due performance by the
Purchaser (notwithstanding any legal limitation on or incapacity of or
other circumstances relating to the Purchaser) of the obligations on the
part of the Purchaser in Clause 4.2 of this Deed and if the Purchaser shall
make any default in any such obligation the Guarantor will indemnify the
Vendors against all losses, damages, costs and expenses which may be
incurred by the Vendors by reason of such default.
12.2 The Guarantor hereby acknowledges that it shall not be released by time or
indulgence being given to or any arrangements or alterations of terms being
made with the Purchasers or by any release or dealing by the Purchaser or
by the invalidity of any such undertaking, agreement or other obligation.
12.3 The guarantee and indemnity contained in this Clause 12 shall be a
continuing and irrevocable guarantee and indemnity provided always that the
Guarantor shall only be obliged to pay to the Vendors up to a maximum
aggregate amount of (pound)500,000.
13. WAIVERS
13.1 Each of the Vendors hereby irrevocably waives, for the benefit of the
Purchaser and the Company, all and any rights to which he may be entitled
in respect of any misrepresentation, inaccuracy or omission in or from any
information or advice supplied or given by the Company or by any present or
former officer, employee or adviser of the Company with a
-26-
view to (a) enabling or inducing such Vendor orVendor (as the case may
be) to give the representations, warranties and undertakings set out or
referred to in Clause 7 and Schedule 4 or make any statement set out in
the Disclosure Letter; or (b) upon which such Vendor or Vendor (as the
case may be) may have relied in agreeing to any term of this Deed or
making any statement set out in the Disclosure Letter and each Vendor
and/or Vendor irrevocably undertakes not to make any claim in respect of
any such matter.
13.2 The granting by any Party of any time or indulgence in respect of any
breach of any term of this Deed by the other(s) shall not be deemed a
waiver of such breach. The waiver by any Party of any breach of any term of
this Deed by the other(s) shall not prevent the subsequent enforcement of
that term (save to the extent of the express waiver in question) and shall
not be cleaned a waiver of any subsequent breach.
13.3 Any date or period mentioned in any Clause of this Deed may be extended by
mutual written agreement of the Vendors and the Purchaser, but as regards
any date or period (whether or not extended as aforesaid) time shall be of
the essence in this Deed (unless the Vendors and Purchaser determine
otherwise on agreeing to such extension).
14. POST-COMPLETION OPERATION
The provisions of this Deed shall continue in full force and effect and
be binding on the Parties in accordance with its terms notwithstanding
Completion.
15. COSTS AND WITHHOLDINGS
15.1 Each Party shall bear its own costs of and incidental to the negotiation,
making and fulfilment of this Deed and the transactions contemplated
hereby.
15.2 All sums payable under this Deed shall be paid free and clear of all
deductions or wiithholdings whatsoever save only as may be required by law.
If any such deduction or withholding is required by law the Party making
the payment shall be obliged to pay such sums as will after deduction or
withholding has been made leave the same amount as the receiving Party
would have been entitled to receive in the absence of any such requirement
to make a deduction or withholding. If any sum payable to the Purchaser
under this Deed shall otherwise be subject
-27-
to Tax in the hands of the Purchaser the same obligation to make an
increased payment shall apply n relation to such sums as if it were a
deduction or withholding required by law.
16. ASSIGNMENT
16.1 This Deed shall be binding on and enure to the benefit of the personal
representatives and estates of the Vendors.
16.2 The Purchaser may assign in whole or in part the benefit of any provision
of this Deed to any member of the Purchaser's Group, but otherwise only
with the prior written consent of the Vendors such consent not to be
unreasonably withheld or delayed.
17. ANNOUNCEMENTS
17.1 Subject to Clause 17.2, no announcement shall be made by any Party relating
to the transactions referred to in this Deed and no Party shall disclose to
any third party any information concerning the terms or subject matter
hereof.
17.2 Any Party may make an announcement or disclose information which would
otherwise be required hereunder to be treated as confidential if and to the
extent:
17.2.1 required by the law of any relevant jurisdiction;
17.2.2 required by any securities exchange or regulatory or governmental
body to which such Party is subject or submits, wherever situated,
whether or not the requirement for information has the force of law;
17.2.3 necessary to enable such Party to obtain the full benefit of its
rights under this Deed in accordance with the terms hereof;
17.2.4 disclosed on a confidential basis to the professional advisers,
auditors and bankers of any Party;
17.2.5 the information has come into the public domain through no fault of
that Party; or
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17.2.6 the other Parties have given prior written approval to the
disclosure, such approval not to be unreasonably withheld or delayed,
provided that any such information be disclosed pursuant to Clauses
17.2.1 or 17.2.2 of this Clause shall be disclosed only after
consultation with the other Parties.
18. JURISDICTION
18.1 This Deed shall be governed by and construed in accordance with English
law.
18.2 The Parties agree that the English courts shall have non exclusive
jurisdiction in relation to any dispute arising out of or in respect of
this Deed and that any judgment or order of an English court made in this
respect shall be conclusive and binding on them and may be enforced against
them. Nothing in this Clause 17 limits the rights of the Parties to bring
proceedings in any other court of competent jurisdiction or concurrently in
more than one jurisdiction.
18.3 Each of the Vendors hereby irrevocably appoints the Vendors' Solicitors as
his agent to accept service of notices and legal proceedings in connection
with all matters arising out of this Deed and the transactions hereby
contemplated.
19. NOTICES
19.1 Save as specifically otherwise provided in this Deed any notice, to be
given pursuant to this Deed shall be delivered by hand, sent by prepaid
post sent first class (for inland mail) or airmail (for overseas mail) or
shall be transmitted by facsimile addressed to the Party to be served in
the case of:
19.1.1 a company at its registered office for the time being; and
19.1.2 an individual to the address specified in Schedule 1
or at such other address or number in the United Kingdom as any such
Party may from time to time notify the other Parties in writing as being
their address for service hereunder.
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19.2 Notices delivered by hand shall be deemed served at the time of delivery,
notices sent by post shall be deemed served on the second Business Day (for
inland mail) or the fifth Business Day (for overseas mail) after the date
of posting and any notice sent by facsimile transmission shall be deemed
served on the Business Day following the date of transmission.
20. INVALIDITY
If any provision of this Deed is held to be invalid or unenforceable.
such a provision shall (so far as invalid or unenforceable) be given no
effect and shall be deemed to be excluded from this Deed, but without
invalidating any of the remaining provisions of this Deed. The Parties
shall use all reasonable endeavours to replace the invalid or
unenforceable provision by a valid provision, the effect of which is as
close as possible to the intended effect of the provision so excluded.
21. FURTHER ASSURANCE
21.1 The Vendors shall do or procure to be done all such further acts or things,
and execute or procure the execution of all such other documents as the
Purchaser may from time to time reasonably require, whether on or after
Completion, for the purpose of giving to the Purchaser the full benefit of
all the provisions of this Deed.
21.2 The Vendors shall procure that there is made available to the Purchaser
(subject, prior to Completion, to compliance by the Purchaser with the
terms of any undertaking as to confidentiality which may have been given or
entered into) at such time(s) and place(s) as the Purchaser may reasonably
direct all information in the possession or under the control of the
Vendors which the Purchaser may from time to time reasonably require.
whether before or after Completion, in relation to the business and affairs
of the Company.
22. ENTIRE AGREEMENT
22.1 This Deed and the documents referred to herein together with a letter of
even date herewith from the Guarantor to ▇▇ ▇▇▇▇▇ and headed "CGT
Indemnity" comprise the entire agreement between the Parties relating to
the subject matter hereof and each of the Parties
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acknowledges that he has not entered into this Deed relying upon any
representation. statement or agreement, whether oral or in writing made
by any other of the Parties other than those expressly incorporated or
referred to in this Deed or such documents.
22.2 No variation or amendment of this Deed shall be valid unless it is
evidenced in writing, and signed by or on behalf of each of the Parties.
23. COUNTERPARTS
This Deed may be executed in any number of counterparts each of which
when executed shall constitute an original, but all the counterparts
shall together constitute one and the same Deed.
AS WITNESS this Deed has been entered into on the date first stated
above.
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