FIRST AMENDMENT TO THE ASSET PURCHASE AGREEMENT
FIRST
AMENDMENT TO THE
THIS
FIRST AMENDMENT to the Asset Purchase Agreement by and between Jinkhold,
Ltd., a corporation duly organized under the laws of the United Kingdom
(“Jinkhold” or the “Purchaser”),
Andronics, Ltd., a corporation duly
organized under the laws of
Northern Ireland (“Andronics” or the “Seller”)
and Xxxxxx Xxxxxxx, an individual residing in Northern Ireland
and a founder of Andronics (“Xxxxxxx”) entered into on October
26, 2007 (the “Agreement”) and amends the Agreement as set
forth below (the “Amendment”). Jinkhold, Andronics
and Xxxxxxx are hereinafter at times collectively referred to as the
“Parties.”
RECITALS
WHEREAS,
the Parties entered into the
Agreement, attached hereto as Exhibit A, on October 26,
2007;
WHEREAS,
the Agreement states the
Closing (as defined in the Agreement) take place on or before November 15,
2007;
WHEREAS,
the Closing Date (as defined
in the Agreement) has passed and the Parties wish to amend the Agreement
to
reflect a new Closing Date;
WHEREAS,
the Agreement provides that,
upon the Closing Date, the Convertible Debentures shall be issued to the
individuals and/or entities listed on Schedule 4.2 of the
Agreement;
WHEREAS,
the Parties have agreed to
issue, upon the Closing Date, the Convertible Debentures to Andronics
Ltd.;
WHEREAS,
the Agreement provides Xxxxxxx
Monthly Options (as defined in the Agreement) shall be issued directly to
Xxxxxx
Xxxxxxx when vested and exercised;
WHEREAS,
the Parties have agreed to
issue, when vested and exercised, the Xxxxxxx Monthly Options to Andronics,
Ltd.;
WHERAS,
Andronics executed an agreement
by and among Andronics, Xxxxxx and Xxxxxxxx Xxxxxxx, Invest Northern Ireland,
Xxxxxxx Xxxxxxx and the Remaining Shareholders (defined therein), a true
and
correct copy is attached hereto as Exhibit B, (the “Invest
NIAgreement”) on or about December 19,
2007.
WHEREAS,
unless otherwise defined in this Amendment, capitalized terms have the meaning
as defined in the Agreement.
AGREEMENT
Accordingly,
the Parties hereby agree as follows:
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1.
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Section
3.1 of the Agreement is hereby amended to read as
follows:
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3.1 Offset. Any
liabilities not listed on Schedule 3 shall remain the sole obligation of
the Seller and Xxxxxx Xxxxxxx. In the event that undisclosed liabilities
arise
or are uncovered within one (1) year after the Closing Date (the
“Undisclosed Liabilities”), the Undisclosed Liabilities United
States Dollar amount shall be offset first, by one (1) share of unvested
Xxxxxxx
Monthly Options, defined in Section 4.6; second, by one (1) share of unvested
Xxxxxxx Quarterly Options, defined in Section 4.6; and third, by one (1)
Convertible Debenture, defined in Xxxxxxx 0.0, Xxxxxx Xxxxxx Dollar for every
One United States Dollar ($1.00 USD) of Undisclosed Liability, with partial
dollar amounts rounded up to the nearest dollar (collectively, the
“Offset”). In connection with the Offset, all SARS
common stock issued, options, whether or not vested or exercised, Convertible
Debentures (defined in Section 4.2 of the Agreement) and common stock issued
pursuant to the conversion of the Convertible Debentures may not be assigned,
sold, leased or otherwise transferred or disposed of until the first anniversary
of the Closing Date.
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2.
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Section
9.1 of the Agreement is hereby amended to read as
follows:
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9.1 Time
and Place. The closing of the sale and purchase of the Assets
(the “Closing”) shall take place at The Xxxx Law Group, PLLC,
at 5:00 p.m. PST on or before December 20, 2007 (the “Closing
Date”), or at such other time as the Parties may mutually agree and
upon which time all (i) closing conditions; (ii) closing covenants, including
the written consent of all shareholders and creditors of Andronics approving
of
the transaction contemplated hereby; and (iii) outstanding exhibits and
schedules have been completed, attached hereto and fully
satisfied. This Agreement may be executed in any number of
counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and
the
same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures
of
each of the Parties reflected hereon as signatories. The
“Execution Date” shall be defined as the date this Agreement is
executed by the Parties.
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3.
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Section
4.2 of the Agreement is hereby amended to read as
follows:
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4.2 Convertible
Debentures. Convertible debentures in the total aggregate
principal amount of Seven Hundred Xxxxxx-Xxx Xxxxxxxx Xxx Xxxxxxx Xxxxxx
Xxxxxx
Dollars ($722,000 USD) (the “Convertible
Debentures”). The Convertible Debentures shall include the
following terms: (i) the interest rate shall be ten percent (10%) compounded
annually, (ii) the Convertible Debenture shall automatically convert into
shares
of SARS Common Stock (the “Conversion”) one (1) year from the
date the Convertible Debenture was executed (the “Debenture Maturity
Date”), (iii) the exercise price shall be One United States Dollar
($1.00 USD) per share, a form of Convertible Debenture is annexed hereto
and
made apart hereof as Exhibit A. The Convertible Debentures
shall be issued to “Andronics Ltd.”
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4.
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Section
18.3.1 of the Agreement is hereby amended to read as
follows:
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18.3.1 One
million (1,000,000) shares shall vest monthly beginning upon the Closing
Date (
“Xxxxxxx Monthly Options”). The Xxxxxxx Monthly
Options, when vested and exercised in accordance with Section 18.3, shall
be
issued to “Andronics, Ltd.” All remaining provisions found in the
Agreement and in Section 18.3 shall remain in full force and
effect.
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5.
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Except
as otherwise provided herein, all other terms of the Agreement
remain in
full force and effect.
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6.
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This
Amendment, the Agreement, the Invest NI Agreement and all related
attachments, schedules and exhibits set forth the entire understanding
and
agreement of the Parties, and supersedes any and all prior contemporaneous
oral or written agreements or understandings between the Parties
as to the
subject matter of this Amendment. This Amendment shall be
governed by the laws of Northern
Ireland.
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7.
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This
Amendment may be executed by facsimile and in one (1) or more
counterparts, each of which shall be deemed an original, but all
of which
together shall constitute one and the same
instrument.
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[Remainder
of page is intentionally left blank]
IN
WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed
as
of the date first written above.
DATE:
December 20, 2007
SELLER:
ANDRONICS,
LTD.
By: /s/
Xxxxxx
Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Title:
XXXXXXX:
XXXXXX
XXXXXXX
By: /s/
Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
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Title:
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PURCHASER:
JINKHOLD,
LTD.
By: /s/
Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
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Title:
Director
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Exhibit
A
The
Agreement
Exhibit
B
Invest
NI Agreement
DATED December
2007
______________________________
SUPPLEMENTAL
AGREEMENT
Relating
to
ANDRONICS
LIMITED
______________________________
THIS
AGREEMENT is
dated December
2007
PARTIES:
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(1)
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ANDRONICS
LIMITED a company registered in Northern Ireland with registered
number NI 017460 whose registered office is at Xxxx 00, Xxxxxxxxxx
Xxxx,
Xxxxxxxxxx Xxxxxxxxxx Xxxxxx, Xxxxx, XX00 0XX (the
“Company”).
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(2)
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XXXXXX
XXXXXXX of 1 Xxxxxxx Xxxx, Culmore Road, Derry
(“RA”) and XXXXXXXX XXXXXXX 1 Xxxxxxx
Xxxx, Culmore Road, Derry (“MA”) (together the
“Promoters”);
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(3)
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INVEST
NORTHERN IRELAND whose registered office is at Xxxxxxx Xxxxxx,
Xxxxxxx Xxxxxx, Xxxxxxx XX0 0XX (“Invest
NI”);
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(4)
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THE
PERSONS LISTED IN SCHEDULE 1 HERETO (the“Remaining
Shareholders”); and
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(5)
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XXXXXXX
XXXXXXX of [address for
Xxxxxxx Xxxxxxx to be inserted]
(“PA”).
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BACKGROUND:
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(A)
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The
Company has agreed to sell its assets and business pursuant to
the terms
of an asset purchase agreement made between the Company, RA and
Jinkhold
Limited (the “Purchaser”) (the “Asset Purchase Agreement”) and a first
amendment to the Asset Purchase Agreement made between the Company,
RA and
the Purchaser (the “Amendment Agreement”) (the Asset Purchase Agreement
and the Amendment Agreement together the “Agreements”), copies of which
are attached at Schedule 2 hereof. The parties hereto have agreed
certain
matters as between themselves in relation to the Company, the
Asset
Purchase Agreement and the Amendment Agreement as more specifically
set
out herein.
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(B)
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This
Agreement is supplemental to the Investment Agreement of 7th
April 2004
made between the Persons Set out in Schedule 1 Thereto, Invest
NI and the
Company (the “Investment
Agreement”).
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(C)
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The
parties hereto have agreed to enter into this Agreement for the
purpose of
regulating their relationship with each other and certain aspects
of the
affairs of and their dealings with the Company and each
other.
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IT
IS AGREED as follows:
1. INTERPRETATION
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1.1
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In
this Agreement where the context
admits:
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"Affiliate”
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means,
in respect of any body corporate, a body corporate which is its
subsidiary
or holding company, or a company which is a subsidiary of that
holding
company, and each such company;
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“Associate”
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means
any person with whom a person is or may be connected
(as
defined in section 839 of the Income and Corporation
Taxes
Act, 1988);
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“Assumed
Liabilities”
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shall
have the same meaning as in the Asset Purchase
Agreement;
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“Articles”
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means
the Articles of Association of the Company from time to time;
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“Closing”
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shall
have the same meaning as in the Agreements;
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“Comfort
Letters”
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means
the letters in the form set out in Schedule 3 hereof;
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“Company’s
Auditors”
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means
XxXxxxxx XxXxxxx Accountants, 00 Xxxxxx Xxxx, Xxxxx, Xx
Xxxxx, XX00 0XX or such other firm as the Company may appoint
from time to time;
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“Company’s
Solicitors”
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means
Xxxxxxxx Xxxxxxxxxxx Solicitors, 0 Xxxxxx Xxxxxx, Xxxxxxxxxxx,
Xx.
Xxxxxxxxxxx, XX00 0XX or such other firm as the Company may appoint
from
time to time;
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“Independent
Expert”
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means
O’Connor, Kennedy, Turtle Estate Agents;
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“Invest
NI Grant Obligations”
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means
the Company’s grant obligations to Invest NI pursuant to the letters of
offer referred to in Schedule 5 hereof;
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“Invest
NI Grant Liabilities”
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means
the liability of the Company to repay any monies pursuant to
the Invest NI
Grant Obligations as referred to in Schedule 5 hereto;
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“Lease”
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means
a lease agreement to be entered into by RA and MA with the Purchaser
in
respect of the Property a copy of which is attached at Schedule
4
hereto;
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“OTC
Bulletin Board”
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means
the Over The Counter Bulletin Board being a regulated quotation
service in
the United States of America that displays real-time quotes,
last-sale
prices, and volume information in over-the-counter equity securities
or
such other quotation service as may supersede or replace it from
time to
time;
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“Primary
Shareholder Loans”
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means
loans totalling in aggregate £[1,171,419] [amount to be
confirmed] made by RA and members of his family (including
PA) and certain of the Remaining Shareholders to the Company
(which amount
excludes the Shareholders Loans).
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“Property”
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means
the business premises occupied by the Company and known as Xxxx
00,
Xxxxxxxxxx Xxxx, Xxxxxxxxxx Xxxxxxxxxx Xxxxxx, Xxxxx, XX00
0XX:
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“Market
Selling Price”
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means
the Selling Price for SARS Common Stock from time to time as
quoted by the
OTC Bulletin Board;
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“Remaining
Consideration”
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means
the SARS Restricted Common Stock and the SARS Common Stock Options
and the
SARS Convertible Debentures less the Residual Liabilities (if
any) and the
Primary Shareholder Loans (but not the Secondary Shareholders
Loans) and
any other debts or liabilities which may have been incurred by
the Company
after Closing;
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“Remaining
Indebtedness”
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means
at Closing any loan, bond, note, loan stock or debenture
or
other obligation for borrowed monies, any liability in
respect
of any acceptance credit or note or xxxx discounting
facility,
any amount of consideration left outstanding by way
of
loan under any agreement for the sale of assets and/or the
supply
of services and any guarantee or indemnity in respect
of
any of the foregoing, (the amount thereof in each case being
taken
for this purpose to be the maximum amount capable of
being
outstanding from the Company thereunder whether or
not
then due or owing or advanced at the time of calculation)
and
any costs or other debts or liabilities of any kind
whatsoever
to any creditors or third parties owing by the
Company
(but excluding the Primary Shareholder Loans and
the
Secondary Shareholder Loans);
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“Residual
Liabilities”
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means
all of the liabilities of the Company of any nature whatsoever
at Closing
including the Remaining Indebtedness;
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“SARS
Convertible Debentures”
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means
722,000 of convertible debentures of $1.00 each in SARS Inc as
referred to
at clause 4.2 of the Asset Purchase Agreement;
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“SARS
Restricted Common Stock”
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means
50,000 of restricted SARS common stock of $0.001 per share as
referred to
at clause 4.1 of the Asset Purchase Agreement;
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“SARS
Common Stock Options”
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means
one million of SARS common stock equal to an amount of one million
shares
at $0.01 each as more specifically referred to at clause 18.3
of the Asset
Purchase Agreement;
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“Secondary
Shareholders Loans”
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shall
have the same meaning as the definition of “Shareholders Loans” in the
Investment Agreement and the Articles (being an aggregate amount
of
£325,000);
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“Selling
Price”
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means
the bid price of stock quoted on the OTC Bulletin Board and not
the ask
price for such stock;
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1.2
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In
this Agreement the headings are included for convenience only
and shall
not affect the interpretation or construction of this
Agreement.
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2.
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OBLIGATIONS
AND COVENANTS
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2.1
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Immediately
upon Closing the Company and RA and MA and the Remaining Shareholders
and
Invest NI and PA shall (if necessary) procure the assignment
in full of
the consideration referred to at clause 4.2 of the Asset Purchase
Agreement from the persons listed in Schedule 4.2 of the Asset
Purchase
Agreement directly to the Company.
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2.2
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Immediately
upon Closing the Company and RA and the Remaining Shareholders
shall (if
necessary) procure the assignment in full of one million of the
Xxxxxxx
Options (as defined in clause 18.3 of the Asset Purchase Agreement)
directly to the Company.
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2.3
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On
or before Closing the Company and RA shall procure that the Company’s
Auditors shall provide Invest NI with full details of the Assumed
Liabilities, the Residual Liabilities and the Primary Shareholder
Loans.
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2.4
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On
or before Closing the Company and RA shall procure that the Company’s
Solicitors shall provide a letter of confirmation to Invest NI
in the
terms set out in Schedule 6 hereof.
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2.5
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On
or before Closing the Company and RA and the Remaining Shareholders
shall
procure the delivery to Invest NI of the Comfort
Letters.
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2.6
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No
later than 30 days after Closing the Company and RA shall procure
that the
Company’s Auditors shall audit and verify the Residual Liabilities and
the
Primary Shareholders Loans to Invest NI and provide Invest NI
with an
audit report in respect of same.
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2.7
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As
soon as possible after Closing RA and MA and Invest NI shall
agree the
terms of reference for a letter of instruction, which once agreed
shall
immediately be sent to the Independent Expert in order to determine
the
annual market value rental income for the Property (the “Annual Market
Rent”). RA and MA and Invest NI hereby agree that the determination
of the
Independent Expert shall be final and binding upon them and hereby
agree
to accept and to be bound by same. RA and MA and Invest NI shall
agree the
terms of reference for the letter of instruction and send it
to the
Independent Expert within 15 days after Closing. The cost of
the
Independent Expert shall be borne equally by the Company and
Invest
NI.
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2.8
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If
the Independent Expert shall determine that the Annual Market
Rent is less
than £120,000 per annum (which resulting amount shall be referred to
herein as the “Rental Balance”) the Rental Balance shall be deemed to
accrue for the entire term of the Lease (or five years from the
date of
execution thereof, whichever is the longer) and the amount calculated
therefor (discounted using a discount rate of 6% into present
value terms
at commencement of the Lease term) shall be set-off against and
reduce any
personal loans made by RA to the Company (including the Primary
Shareholder Loans) as evidenced in the directors current account
to be
provided at Closing to Invest NI by the Company’s Auditors and thereafter
(if applicable) in accordance with the provisions of the Articles
and in
particular the provisions of Article 4.2 B.1 thereof. If the
rent payable
under the Lease to RA and MA shall cease before the expiry of
the Lease
and RA and MA shall receive no further rent in respect of the
Property
from the Purchaser (or from any Affiliate or Associate of the
Purchaser),
whether under any other lease agreement or otherwise, the amount
of
set-off shall be recalculated and shall be reduced
accordingly.
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2.9
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If
the Independent Expert shall determine that the Annual Market
Rent is
equal to or more than £120,000 per annum RA and MA shall be entitled to
keep the full amount of £120,000 per annum without any set-off or
reduction.
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2.10
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After
Closing the parties hereto agree that the Residual Liabilities
and the
Primary Shareholder Loans shall be funded in order of priority
as
follows:
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-
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Firstly,
in applying all amounts received by the Company from the sale
of the SARS
Restricted Common Stock, which shall be realised at the Market
Selling
Price.
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-
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Secondly,
in applying all amounts received by the Company pursuant to the
exercise
of the SARS Common Stock Options, which shall be realised at
the Market
Selling Price;
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-
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Lastly,
in applying all amounts received by the Company pursuant to the
conversion
of the SARS Convertible Debentures, which shall be realised at
the Market
Selling Price;
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2.12
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Upon
the winding-up of the Company, the parties hereto agree that
the Remaining
Consideration shall be applied in accordance with the provisions
of
Article 4.2 B1 of the Articles.
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2.13
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The
parties hereto further agree that any distribution on a winding-up
shall
be carried out in the most tax efficient manner possible. The
relevant
parties hereto may elect to receive their distribution entitlement
in
shares of SARS common stock or by way of cash. The number of
any shares or
cash to be so received shall be calculated at the value of the
Market
Selling Price per share.
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2.14
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After
Closing the Company shall not incur any further liabilities,
costs, debts
or any further obligations of any kind whatsoever without the
prior
written consent of Invest NI.
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2.15
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RA
and Remaining Shareholders and PA hereby agree and shall procure
that none
of the Primary Shareholders Loans or the Secondary Shareholders
Loans
shall become repayable before the Company shall have received
all monies
in full from the realisation of the SARS Restricted Common Stock
and the SARS Common Stock Options and the SARS Convertible
Debentures and RA and the Remaining Shareholders and PA hereby
agree and
shall procure that the repayment of the Primary Shareholders
Loans and the
Secondary Shareholders Loans shall be irrevocably deferred and
postponed
until the Company shall have received all such monies and none
of them
shall pursue the Company or take any action against the Company
or bring
any claim for the repayment thereof (or for any other debt or
obligation)
in the meantime.
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2.16 The
Company and RA hereby warrant and represent to Invest NI as
follows:
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(a)
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that
other than the obligation to obtain Invest Northern Ireland’s prior
written consent to the Agreements the Company has complied in
all respects
with all of its obligations pursuant to the Agreements and that
all of the
requisite shareholder resolutions, board resolutions and any
other
requirements, novations, rescissions, consents or waivers needed
to give
effect to the terms of the Agreements have been
obtained;
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(b)
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that
the termination letter of 16th
November
2007 from Jinkhold Limited to the Company terminating the Asset
Purchase
Agreement has been rescinded in full by Jinkhold Limited and
is no longer
in force and has no effect;
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(c)
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that
the Assumed Liabilities will include all debts, liabilities and
costs of
the Company and all amounts owing to any third parties and the
creditors
of the Company at Closing (other than the Primary Shareholder
Loans and
the Secondary Shareholders Loans);
and
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(d)
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that
upon Closing (other than the obligation to repay the Primary
Shareholders
Loans and the Secondary Shareholders Loans) the Company will
be in a
solvent position.
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(e)
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that
(if necessary) the SARS Common Stock Options and the SARS Convertible
Debentures are fully assignable to the Company pursuant to the
terms of
clause 2.1 and 2.2 hereof.
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2.17
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RA
hereby indemnifies the Company against any further liabilities,
costs or
debts of any kind whatsoever which are not part of the Assumed
Liabilities
(including the Residual Liabilities) and which the Company may
have at
Closing or incur after Closing (other than in respect of the
Primary
Shareholder Loans and the Secondary Shareholders Loans) and shall
immediately make any and all payments necessary on the Company’s behalf
and for the benefit of the Company without any delay. RA shall
do all such
things as may be necessary (including making any payments required)
to
ensure that the Company remains solvent after Closing until such
time as
the Company enters into liquidation as referred to at clause
2.11
above.
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2.18
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The
Company and RA shall use all best efforts to procure that the
Invest NI
Grant Obligations shall be novated to Jinkhold Limited as soon
as possible
after Completion. If Jinkhold Limited shall not accept the novation
of the
Invest NI Grant Obligations to it then the resulting Invest NI
Grant
Liabilities shall become a debt of the Company the payment for
which
Invest NI hereby agrees to defer until such time as the Company
shall have
received the monies referred to at 2.15 above. RA, the Company,
PA and the
Remaining Shareholders hereby agree that the Invest NI Grant
Liabilities
(if any) shall be repaid by the Company in priority to any of
the Primary
Shareholders Loans and the Secondary Shareholders
Loans.
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3. DISPUTE
RESOLUTION PROCEDURE
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3.1
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For
the purposes of this clause, “Dispute” means any dispute, difference or
question of interpretation arising out of this Agreement and
also whenever
any matter is submitted to a general meeting of the Company and
that
general meeting is also unable to arrive at a decision on the
matter by
reason of disagreement between the shareholders then a Dispute
shall be
deemed to have occurred in relation to that
matter.
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3.2
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Notice
of Dispute
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3.2.1
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This
Dispute Resolution Procedure shall start when one party serves
on another
party a written notice that it believes that there is a Dispute
(“Notice of
Dispute”).
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3.2.1.1
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The
Notice of Dispute shall:
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3.2.1.2
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set
out the material particulars of the Dispute;
and
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3.2.1.3
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set
out the reasons why the party serving the notice believes that
the Dispute
has arisen.
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3.3 Commercial
Negotiation
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3.3.1
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The
disputing parties shall use all reasonable best endeavours to
settle a
Dispute in good faith.
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3.3.2
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If
the disputing parties have not settled the Dispute by commercial
negotiation, within 21 days after the date of the relevant Dispute
Notice,
then the disputing parties shall refer the dispute for determination
by
the Expert. Either disputing party shall be entitled, within
30 days after
expiry of the 21 days set aside for commercial negotiation, by
notice in
writing to the other, require the matter to which the Dispute
relates to
be referred to such person as shall be appointed in writing by
the
disputing parties jointly or, failing such appointment within
14 days
after the date of service of the notice referred to above, appointed
by
the Chairman from time to time of Ulster Society of Chartered
Accountants
or, if he shall be unable or unwilling to make such appointment,
by the
High Court of Justice in Northern Ireland (in either of the latter
cases,
upon the application at any time of any disputing party) (the
“Expert”).
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3.4
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Expert
Determination
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3.4.1
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The
person so appointed shall act as an expert and not as an arbitrator
and
his or her written determination shall (in the absence of clerical
or
manifest error appearing within 14 days of its delivery to the
disputing
parties) be final and binding on the disputing parties. In making
his
determination, the Expert shall be entitled to specify any matters
which
he considers, in his absolute discretion, should be implemented
or
otherwise transacted in order to give commercial efficacy to
his
determination.
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3.4.2
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The
disputing parties shall submit in writing their respective arguments
within the period of time determined by the Expert. The disputing
parties
shall also supply the Expert with any information which he may
request in
connection with his determination.
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3.4.3
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The
Expert shall in his or her absolute discretion, consider whether
a hearing
is necessary in order to resolve the Dispute. The Expert shall
act
impartially and may take the initiative in ascertaining the facts
and the
law.
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3.4.4
|
The
Expert shall provide to both disputing parties his or her written
decision
on the Dispute within such period as the disputing parties may
agree after
the reference. The Expert shall not be required to state in writing
the
reasons for his or her decision.
|
|
3.4.5
|
Forthwith
upon receiving the Expert’s determination the disputing parties and the
other parties hereto shall exercise their powers in relation
to the
Company to procure that the Company complies with the Expert’s
determination and with any directions contained
therein.
|
|
3.4.6
|
The
Expert’s costs of any reference shall be borne as the Expert shall
specify, or in default, equally by the disputing parties. Each
party shall
bear its own costs arising out of the reference, including legal
costs and
the costs and expenses of any
witnesses.
|
|
3.4.7
|
All
information, data or documentation disclosed or delivered by
a party to
the Expert in consequence of or in connection with his appointment
as
Expert, shall be treated as
confidential.
|
|
4.
|
TERMS
OF THIS AGREEMENT SHALL
PREVAIL
|
|
4.1
|
All
the provisions of this Agreement insofar as they remain capable
of
being performed
or observed shall continue in full force and effect notwithstanding
completion of any other matters provided for hereunder, except
in respect
of those matters then already performed and completion of any
such matters
shall not affect or prejudice any provision which is expressly
or by
implication intended to come into or remain in force
thereafter.
|
|
4.2
|
In
the event that there arises any conflict or ambiguity between
the
provisions of this Agreement or the Articles the
provisions of this Agreement shall prevail as between the parties
and the
shareholders shall exercise all voting and other rights and powers
available to them so as to give effect to the provisions of this
Agreement
and shall further procure any required amendment to the Company’s Articles
as may be necessary in order to reflect the provisions of this
Agreement.
|
|
4.3
|
In
the event that there arises any conflict or ambiguity between
the
provisions of this Agreement or the Investment
Agreement the provisions of the Investment Agreement shall
prevail.
|
|
4.4
|
In
the event that there arises any conflict or ambiguity between
the
provisions of this Agreement and the Agreements the
provisions of this Agreement shall
prevail.
|
5. NOTICE
|
|
Any
notice or document required to be given or served under or pursuant
to
this Agreement shall be sufficiently given or served if delivered
by hand
or sent by pre-paid recorded delivery letter to the address of
the
relevant Party stated below or to such other address as the relevant
Party
may most recently have directly by written notice to the other
parties
hereto and, if delivered by hand, shall be deemed to have been
received on
the date of delivery or, if sent by post, shall be deemed to
have been
received on the second day following the posting thereof (and
proof that
an envelope containing the same was properly addressed, pre-paid
and
posted as aforesaid shall be conclusive evidence that the notice
was
given).
|
6. ASSIGNMENT
No
party
hereto shall be permitted to assign this Agreement or any of his rights
or
obligations under it without the prior written consent of all of the other
parties.
7. COUNTERPARTS
This
Agreement may be executed in any number of counterparts, each of which
is an
original and which together have the same effect as if each party had signed
the
same document.
The
parties shall promptly execute and deliver all such documents, and do all
such
things, as may from time to time be reasonably required for the purpose
of
giving full effect to the provisions of this deed.
9. COSTS
The
parties hereto shall pay all their own costs, legal fees and other expenses
incurred in the preparation and execution of this Agreement.
10. FORBEARANCE,
WAIVER AND VARIATION
|
10.1
|
The
rights of any Party shall not be prejudiced or restricted by
the giving of
time or any forbearance or indulgence extended to another Party
and any waiver, express or implied, by any Party of any term
of this
Agreement or of any breach, default, omission or non-observance
thereof by
any other Party shall be without prejudice to the other rights
of such
Party and shall not operate as a continuing waiver nor be deemed
to
operate as a waiver of any subsequent breach, default, omission
or
non-observance. The rights and remedies provided in this
Agreement are cumulate and not exclusive of any rights or remedies
provided by law.
|
|
10.2
|
Neither
this Agreement nor any provision hereof shall be varied or cancelled
unless such variation or cancellation shall be expressly agreed
in writing
by a duly authorised director of each of the Parties provided
that the
variation or cancellation of any provision of this Agreement
as regards
and only as regards any of the respective rights or obligations
of the
Shareholders, or either of them, inter se, shall require only
the
agreement in writing of the
Shareholders.
|
11. SEVERABILITY
If
any
provision of this Agreement shall to any extend be found or held by a court
or
other competent authority to be void and unenforceable, such provision
shall be
deemed to be deleted from this Agreement and the remaining provisions of
this
Agreement shall continue in full force and effect. Notwithstanding
the foregoing, the Parties shall thereupon negotiate in good faith in order
to
agree the terms of a mutually satisfactory provision to be substituted
for the
provision so found to be void and unenforceable.
12. ENTIRE
AGREEMENT
|
|
This
Agreement, the Articles and the Investment Agreement and the
other
agreements and documents referred to herein or therein constitute
the
entire agreement and understanding between the parties in connection
with
the subject matter hereof and supersede and cancel all previous
negotiations, commitments or agreements between the parties or
any of them
with respect thereto and each party confirms that it has not
relied upon
any representation, warranty or undertaking by any other party
in relation
thereto save for any representation, warranty or undertaking
expressly set
out in this Agreement, the Articles or the Investment Agreement
or such
other agreements and documents.
|
13. THIRD
PARTY RIGHTS
|
|
A
person who is not a party to this Agreement shall not have any
rights
under or in connection with it by virtue of the Contracts (Rights
of Third
Parties) Xxx 0000.
|
14. GOVERNING
LAW AND JURISDICTION
|
This
Agreement and any disputes or claims arising out of or in connection
with
its subject matter are governed by and construed in accordance
with the
laws of Northern Ireland.
|
The
parties have shown their acceptance to the terms of this Agreement by executing
it as a deed in the manner hereafter shown.
SCHEDULE
1
REMAINING
SHAREHOLDERS
|
NAME
|
ADDRESS
|
|
Xxxxxx
Xxxxxx
|
Xxxxxxxxxx
Xxxxxxx, Xxxxxxxxxxx, Xx. Xxxxxxx
|
|
Xxxxxx
Xxxxx Senior
|
00
Xxxxxxxxx, Xxxxxxxx Xxxx, Xxxxx, XX00 0XX
|
|
Vehicle
Services (of Derry) Limited
|
Courthauld
Way, Campsie, Derry
|
SCHEDULE
2
ASSET
PURCHASE AGREEMENT & AMENDMENT AGREEMENT
SCHEDULE
3
COMFORT
LETTERS
Invest
Northern Ireland
Xxxxxxx
Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx
XX0 0XX
Northern
Ireland
Date: December
2007
Dear
Sirs
We
refer
to the proposed sale of the business and assets of Andronics Limited (the
“Company”) pursuant to the terms of an Asset Purchase Agreement between Jinkhold
Limited, Xxxxxx Xxxxxxx and the Company (the “Asset Purchase Agreement”) and a
first amendment agreement to the Asset Purchase Agreement made between
Jinkhold
Limited, Xxxxxx Xxxxxxx and the Company (the “Amendment Agreement”) (the Asset
Purchase Agreement and the Amendment Agreement together the
“Agreements”).
We
hereby
confirm that other than as specifically referred to and provided for in
the
Agreements, there is no other consideration, remuneration, benefit, advantage
or
payment of any type whatsoever being made, given, assigned or passing to
the
Company or any of its Affiliates or Associates or to Xxxxxx Xxxxxxx or
any of
his Associates, family members or any other person or company connected
with him
or any of them.
We
hereby
further confirm that the Company, its professional advisors and Mr Xxxxxx
Xxxxxxx have made full and proper disclosure of all of the information,
facts
and details arising from, relating to or in connection with the Agreements
and
the matters contemplated thereby and that there is no other information,
facts
or details available which have not been so disclosed.
For
the
purposes of this letter the following terms shall have the following
meanings:
|
|
"Affiliate"
means, in respect of any body corporate, a body corporate which
is
its
|
|
|
subsidiary
or holding company, or a company which is a subsidiary of that
holding
|
|
|
company,
and each such company;
|
|
|
"Associate"
means any person with whom any of the persons undersigned hereto
is
or
|
|
|
may
be connected (as defined in section 839 of the Income and Corporation
Taxes Act,
|
|
|
1988)
or any person for whom any of the persons undersigned hereto
may be a
personal
|
|
|
representative;
|
Yours
faithfully
____________________________ ___________________________
For
and
on behalf
of XXXXXX
XXXXXXX
ANDRONICS
LIMITED
____________________________ ___________________________
XXXXXXXX
XXXXXXX XXXXX
XXXXXXX
____________________________
___________________________
XXXX
XXXXXXX XXXXXXX
XXXXXXX
Invest
Northern Ireland
Xxxxxxx
Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx
XX0 0XX
Northern
Ireland
Date: December
2007
Dear
Sirs
We
refer
to the proposed sale of the business and assets of Andronics Limited (the
“Company”) pursuant to the terms of an Asset Purchase Agreement between Jinkhold
Limited, Xxxxxx Xxxxxxx and the Company (the “Asset Purchase Agreement”) and a
first amendment agreement to the Asset Purchase Agreement made between
Jinkhold
Limited, Xxxxxx Xxxxxxx and the Company (the “Amendment Agreement”) (the Asset
Purchase Agreement and the Amendment Agreement together the
“Agreements”).
We
hereby
confirm that other than as specifically referred to and provided for in
the
Agreements, there is no other consideration, remuneration, benefit, advantage
or
payment of any type whatsoever being made, given, assigned or passing to
the
Company or any of its Affiliates or Associates or to Xxxxxx Xxxxxxx or
any of
his Associates, family members or any other person or company connected
with him
or any of them.
For
the
purposes of this letter the following terms shall have the following
meanings:
|
|
"Affiliate"
means, in respect of any body corporate, a body corporate which
is
its
|
|
|
subsidiary
or holding company, or a company which is a subsidiary of that
holding
|
|
|
company,
and each such company;
|
|
|
"Associate"
means any person with whom any of the parties to the Agreement
is
or
|
|
|
may
be connected (as defined in section 839 of the Income and Corporation
Taxes Act,
|
|
|
1988)
or any person for whom any of the parties to the Agreement may
be a
personal
|
|
|
representative;
|
Yours
faithfully
____________________________
For
and
on behalf of
SARS
Inc.
____________________________
For
and
on behalf of
Jinkhold
Limited
SCHEDULE
4
LEASE
SCHEDULE
5
INVEST
NI GRANT OBLIGATIONS & LIABILITIES
Letter
of
Offer: Compete
5/I Dated: 09/12/02
Default
Clause: 20
Repayment
Clause: 20 Years:
5 from payment
(clawback
under Compete 5/I = £11,978.50)
Letter
of
Offer: 03/0795 Dated: 28/11/03
Default
Clause: 6.5
Repayment
Clause: 8.1 Years:
5 from payment
(clawback
under 03/0795 = £4,450)
Letter
of
Offer: 04/1069 Dated: 04/01/05
Default
Clause: 6
Repayment
Clause: 8.1 Years:
5 from payment
(clawback
under 04/1069 = £7,500)
TOTAL
= £23,928.50 SCHEDULE
6
LETTER
FROM COMPANY’S SOLICITORS
Invest
Northern Ireland
Xxxxxxx
Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx
XX0 0XX
Northern
Ireland
Date: December
2007
RE:
ANDRONICS LIMITED
Dear
Sirs
We
refer
to the proposed sale of the business and assets of Andronics Limited (the
“Company”) pursuant to the terms of an Asset Purchase Agreement between Jinkhold
Limited, Xxxxxx Xxxxxxx and the Company (the “Asset Purchase Agreement”) and a
first amendment agreement to the Asset Purchase Agreement made between
Jinkhold
Limited, Xxxxxx Xxxxxxx and the Company (the “Amendment Agreement”) (the Asset
Purchase Agreement and the Amendment Agreement together the
“Agreements”).
We
hereby
confirm that (other than the obligation to obtain Invest Northern Ireland’s
prior written consent to the Agreements) the Company has complied in all
respects with all of its obligations pursuant to the Agreements and that
all of
the requisite shareholder resolutions, board resolutions and any other
requirements, novations, rescissions, consents or waivers needed to give
effect
to the terms of the Agreements have been obtained.
We
hereby
further confirm that the following:
|
(a)
|
that
the termination letter of 16th
November
2007 from Jinkhold Limited to the Company terminating the Asset
Purchase
Agreement has been rescinded in full by Jinkhold Limited and
is no longer
in force and has no effect;
|
|
(b)
|
that
the SARS Common Stock Options (as defined in the Asset Purchase
Agreement)
and the SARS Convertible Debentures (as defined in the Asset
Purchase
Agreement) are (if necessary) fully assignable to the Company
pursuant to
the terms of clause 2.1 and 2.2 of the Asset Purchase
Agreement.
|
Yours
faithfully
____________________________
XXXXXXXX
XXXXXXXXXXX
SOLICITORS
EXECUTED
and DELIVERED
as
a
DEED by XXXXXX XXXXXXX
in
the
presence of:
EXECUTED
and DELIVERED
as
a
DEED by XXXXXXXX XXXXXXX
in
the
presence of:
EXECUTED
and DELIVERED
as
a
DEED by XXXXXXX XXXXXXX
in
the
presence of:
EXECUTED
and DELIVERED
as
a
DEED by XXXXXX XXXXX
in
the
presence of:
EXECUTED
and DELIVERED
as
a
DEED by XXXXX XXXXXX
in
the
presence of:
|
|
EXECUTED
by VEHICLE SERVICES (OF DERRY)
LIMITED
|
|
|
as
a DEED acting by two
directors
|
|
|
or
by one director and the company
secretary
|
|
|
______________________
|
Director
______________________
Director/Secretary
|
|
EXECUTED
by ANDRONICS
LIMITED
|
|
|
as
a DEED acting by two
directors
|
|
|
or
by one director and the company
secretary
|
|
|
______________________
|
Director
______________________
Director/Secretary
SIGNED
as a DEED for and on behalf of
INVEST
NORTHERN IRELAND
by
authorised
officer:
