Share Sale and Purchase Agreement - QSE (Bristol) Ltd. and Research Engineers (Europe) Ltd.
SHARE SALE AND PURCHASE AGREEMENT OF QSE (BRISTOL) LIMITED
BY RESEARCH ENGINEERS (EUROPE) LIMITED
THIS AGREEMENT is made the 3rd day of December 1996
BETWEEN:
(1) WILFRED WRIGHT AND SIMONE CLARE WRIGHT both of Booilushag House, Maughold,
Isle of Man as Trustees of the Rebecca Sumner Park Trust (the "Trustees");
(2) CHRISTOPHER BRIAN GROVES of Amberley House, France Lane, Hawkesbury Upton,
Badminton, Gloucestershire GL9 1AS ("Mr Groves");
(3) WILLIAM STEPHEN PARK of Fox Lodge, The Green, Biddestone, Wiltshire SN14
7DG ("Mr Park");
(4) REBECCA SUMNER PARK of Fox Lodge, The Green, Biddestone, Wiltshire SN14 7DG
("Mrs Park");
(5) RESEARCH ENGINEERS (EUROPE) LIMITED a company incorporated and existing
under the laws of England (registered no. 2335650) whose registered office
is at 115 Kingston Road, Leatherhead, Surrey KT2 7SO (the "Purchaser")
WHEREAS:
(A) QSE (Bristol) Limited (the "Company") is a private limited company
incorporated in England on 24th September 1987 under the Companies Act 1985
under registration number 2168740 and has at the date hereof an authorised
share capital of (Pounds)1000 and $80 divided into 1000 Deferred Shares of
(Pounds)1.00 each, eighty (80) of which Deferred Shares have been issued
and are credited as fully paid, and eight thousand (8,000) US Dollar
Ordinary Shares of one US cent (US $0.01) each all of which $US Dollar
Ordinary Shares have been issued and are credited as fully paid and which
exist in the form of share warrants issued to bearer.
(B) Each of the Vendors is at the date hereof either the registered holder or
bearer of, with full and unrestricted power to sell and to confer on the
Purchaser, the full beneficial and legal title to, the shares in the
issued share capital of the Company, each such Vendor being the holder or
bearer as aforesaid of the number of shares or share warrants respectively
ascribed to him in Part A of Schedule 1.
(C) The persons specified in Part B of Schedule 1 are all the directors of the
Company.
(D) The Company has by a debenture dated 27th July 1988 (the "Debenture")
charged certain of its assets to National Westminster Bank PLC (the
"Bank").
(E) The Vendors desire to sell and the Purchaser are willing to purchase the
Deferred Shares and share Warrants (as hereinafter defined) on the terms
and subject to the conditions hereinafter contained.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
<PAGE>
In this Agreement and the Schedules hereto and the Deed of Indemnity (as
hereinafter defined):
1.1 the following expressions shall unless the context otherwise requires
have the following meanings namely:
<TABLE>
<C> <S>
"Accounts" all or any of them the audited balance sheet of
the Company as at the Accounts Date and revenue
and profit and loss accounts of the Company for
the period of one (1) year ending on the Accounts
Date copies whereof are annexed hereto marked
"Accounts" and initialled by or on behalf of the
Warrantors and the Purchaser for the purpose of
identification;
"Accounts Date" 31st May 1996;
"Auditors" the auditors of the Company namely Barnes Hunter
of Mariner House, 62 Prince Street, Bristol BS1
4QD;
"Completion" completion of the obligations of the parties
hereto under this Agreement in accordance with the
provisions of Clause 5;
"Completion Date" the date of Completion;
"Deed of Indemnity" the Deed of Indemnity referred to in Clause 4.3.2;
"Deferred Shares" eighty (80) deferred shares of (Pounds)1 each in
the capital of the Company being all the deferred
shares in the capital of the Company in issue at
Completion;
"Director" has the meaning assigned to it by section 741 of
the Companies Act and shall include a shadow
director as defined by that section;
"Disclosure Letter" the letter of even date herewith from the Vendors'
Solicitors to the Purchaser's Solicitors in the
agreed form and described on the face of it as
being the disclosure letter for the purpose of
this Agreement;
"Intellectual
Property Rights" means all intellectual property rights belonging
to the Company of any nature whatsoever throughout
the world and for the full duration of any and all
intellectual property protection afforded to the
same including, without limitation, all of the
Company's:
(a) (i) patents, registered trade marks, service
marks, copyright, designs and any and all
applications for registration of any of
the same wheresoever made as listed in
Schedule 5; and
(ii) unregistered trade marks, service marks,
designs, design right and copyright as
listed in Schedule 5; and
</TABLE>
<PAGE>
<TABLE>
<C> <S>
(b) know how, trade secrets and confidential
information howsoever arising; and
(c) computer software and semi conductor
topographies;
and any right or interest of
the Company in any of the foregoing;
"Management the unaudited management accounts of the Company
Accounts" in respect of the period commencing on 1st June
1996 and ending on 31st October 1996 copies of
which are attached hereto marked "Management
Accounts" and initialled by or on behalf of the
Warrantors and the Purchaser by way of
identification;
"Profits" includes profits or gains, income, chargeable
gains, earnings, receipts, value or any other
amount or element (whether real or notional) on or
in respect of or by reference to which any
taxation is liable to be assessed or charged or is
payable;
"Property" the leasehold property short particulars whereof
are set out in Schedule 4 and shall where the
context so permits include each and any or every
part thereof;
"Purchaser's Wiggin and Co of The Quadrangle, Imperial Square,
Solicitors" Cheltenham, Gloucestershire, GL50 1YX;
"Purchaser's KPMG of 15 Pembroke Road,
Accountants" Clifton, Bristol BS8 3BG
"REI" Research Engineers Inc a company incorporated
under the laws of the State of Delaware with its
principal office at 22700 Savi Ranch, Yorba Linda,
California 92887-4608;
"REI Group" REI and its Subsidiaries from time to time and
"member of the REI Group" shall be construed
accordingly;
"Service Agreements" the service agreements in the agreed form to be
entered into on Completion between the Purchaser
and, respectively, Mr Groves and Mr Park;
"Share Warrants" bearer share warrants relating to all eight
thousand (8,000) of the US Dollar Ordinary Shares
of US $0.01 each in the capital of the Company in
issue at Completion;
"Subsidiary" has the meaning assigned to it by section 736 of
the Companies Act;
"Taxation" includes without limitation income tax,
corporation tax, advance corporation tax, capital
gains tax, inheritance tax, stamp duty, stamp duty
reserve tax, capital duty, rates, customs and
excise duties, national insurance, social security
or other similar liabilities or contributions and
value added tax and any other tax duty levy or
impost of any nature (whether chargeable inside or
outside the United Kingdom) whenever
</TABLE>
<PAGE>
<TABLE>
<C> <S>
created or imposed and also any penalty, fine,
interest, costs, charges and expenses payable in
connection with or incidental to any taxation and
any reference to Taxation shall include a
reference to any amount representing Taxation;
"taxation statutes" any statute, statutory instrument or like
legislative provision providing for or imposing
any Taxation;
"Vendors" Mr. Groves and Mrs Park (in respect of the
Deferred Shares) and the Trustees and Mr. Groves
(in respect of the Share Warrants);
"Vendors' Barnes Hunter of Mariner House, 62
Accountants" Prince Street, Bristol, BS1 4QD;
"Vendors' Burroughs Day of 14-16 Charlotte
Solicitors" Street, Bristol, BS1 5PT;
"Warranties" the warranties, representations and undertakings
set out in Schedule 2;
"Warrantors" Mr Groves, Mr Park and the Trustees;
</TABLE>
1.2 the following Acts are referred to by the following abbreviations namely:-
<TABLE>
<S> <C>
the Capital Allowances Act 1990 the CAA 1990
the Income & Corporation
Taxes Act 1970 the 1970 Act
the Income and Corporation
Taxes Act 1988 the 1988 Act
the Taxes Management Act 1970 the TMA
any Finance Act FA
the Development Land Tax Act 1976 the DLTA
the Companies Act 1985 (as amended the Companies Act
by the Companies Act 1989)
the Companies Acts 1985 to 1989
the Business Names Act 1985 and
the Companies Securities (Insider
Dealing) Act 1985 the Companies Acts
the Value Added Tax Act 1994 the VATA
the Inheritance Tax Act 1984 the IHTA
Taxation of Chargeable Gains Act 1992 the TCGA
and advance corporation tax is referred to as ACT;
</TABLE>
1.3 any reference to any provision of any taxation or other statute shall
include a reference to any modification, substitution, replacement, re-
enactment or extension thereof or therefor whether made or effected before
or after the date hereof and shall include any provisions of which they are
re-enactments (whether with or without modification) and any subordinate
legislation made under such provisions so far as such modification or re-
enactment applies or is capable of applying to any transactions entered
into prior to Completion and (so far as liability thereunder may exist or
can arise) shall also include any past statutory provisions or regulations
(as from time to time modified or re-enacted) which such provisions or
regulations have directly or indirectly replaced, but shall exclude any
such statute or statutory provisions or regulations not in force at the
date hereof which operate to increase any liability of the Warrantors
hereunder or (as the Covenantors therein) under the Deed of Indemnity;
<PAGE>
1.4 a liability or increased liability to or a claim for any Taxation or a
refusal or restriction of any deduction, set-off, loss or other relief
shall be deemed to be incurred made or suffered in consequence of any act,
transaction, omission or event done, effected, occurring or taking place
before Completion if it is incurred made or suffered in consequence of the
combined effect of any one or more acts transactions omissions or events
all of which are done or effected or occur or take place before Completion
or the first of which is done or effected or occurs or takes place before
Completion except where the second and any subsequent act transaction
omission or event (not connected with the first act transaction omission or
event and not done or effected pursuant to or caused or brought about by
any contractual or statutory obligation) is done or effected or caused or
brought about after Completion by the Company or any other member of the
REI Group or any of the directors or the shareholders for the time being of
the Company or any other member of the REI Group unless, in any case, the
Purchaser or any other member of the REI Group knew or ought reasonably to
have known that such second or subsequent act, transaction, omission or
event would give rise to any such liability, claim, refusal or restriction
as aforesaid and which could reasonably have been avoided;
1.5 any reference to any act, transaction, omission or event in consequence of
which any liability or increased liability to any Taxation may be incurred
or any claim for any Taxation may be made or any refusal or restriction of
any deduction set-off loss or other relief may be suffered includes a
reference to anything which under any relevant taxation statute is to be
deemed to be or to be treated or regarded as being any such act
transaction omission or event as aforesaid;
1.6 terms defined in the taxation statutes where the context so permits have
the same meanings in this Agreement and in the Deed of Indemnity;
1.7 any reference to the number of a clause or sub-clause shall be to a clause
or sub-clause in this Agreement and any reference to a Schedule or Recital
shall be to a Schedule or Recital in this Agreement;
1.8 any document expressed to be "in the agreed form" means a document in a
form agreed by and for the purpose of identification signed by or on behalf
of the Warrantors and the Purchaser on or before the date of this
Agreement;
1.9 words importing the singular include the plural and vice versa, words
importing a gender include every gender and references to persons include
bodies corporate or unincorporate;
1.10 clause and other headings are for convenience only and shall not affect
the construction hereof;
1.11 the definitions adopted in the recitals preceding this clause shall apply
throughout this Agreement and the Schedules;
1.12 references to "include" or "including" shall be construed without
limitation;
1.13 a reference to a balance sheet or profit and loss account shall include a
reference to any note forming a part of it.
2. SALE AND PURCHASE
-----------------
2.1 The Vendors shall sell and the Purchaser relying on the Warranties shall
purchase the Deferred Shares and the Share Warrants.
2.2 The Deferred Shares and the Share Warrants shall be sold free from any lien
charge equity or encumbrance and together with all benefits and rights
attaching to them at the date hereof or subsequently becoming attached to
them.
<PAGE>
2.3 Each of the Vendors waives any rights which he may have under the articles
of association of the Company or otherwise to have the Deferred Shares or
the Share Warrants or any of them offered to him for purchase or to have
any other shares in the capital of the Company issued to him or offered to
him for subscription.
2.4 The Purchaser shall not be obliged to complete the purchase of any of the
Deferred Shares or the Share Warrants unless the purchase of all the
Deferred Shares and the Share Warrants is completed simultaneously.
3. CONSIDERATION
-------------
3.1 The consideration for the sale of the Deferred Shares and the Share
Warrants (the "Consideration") shall be the payment by the Purchaser to
the Vendors of the total amount, subject to Clause 3.3, of Seven Hundred
and Ninety Thousand Pounds ((Pounds)790,000).
3.2 The Consideration shall be divided equally between the Vendors as stated in
Part A of Schedule 1.
3.3 It is acknowledged that the Consideration is calculated on the basis of a
currency exchange rate of one dollar and sixty cents ($1.60) to each one
Pound ((Pounds)1.00). If the currency exchange rate on Completion has
decreased so that there is less than one dollar and sixty cents ($1.60) to
each one pound ((Pounds)1.00) on Completion then the Consideration shall be
recalculated at the decreased exchange rate to produce a new figure (the
"Recalculated Amount") and the Consideration shall be increased by an
amount equal to one half (1/2) of the difference between the Consideration
and the Recalculated Amount. If the currency exchange rate on Completion
has increased so that there is more than one dollar and sixty cents ($1.60)
to each one pound ((Pounds)1.00) there shall be no adjustment to the amount
of the Consideration. For the purposes of this Clause the exchange rate
shall be the median sterling dollar spot exchange rate in London for the
business day immediately prior to Completion as published in the Financial
Times on the Completion Date.
4. COMPLETION
----------
4.1 Completion shall take place on the signing hereof at the offices of the
Purchaser's Solicitors.
4.2 On or before Completion the Vendors shall procure that they are the
registered proprietors of the Deferred Shares, that they are the
unencumbered holders of the Share Warrants and that they are able to
transfer the Deferred Shares and deliver the Share Warrants to the
Purchaser or its nominees;
4.3 On Completion:
4.3.1 The Vendors shall deliver or cause to be delivered to the Purchaser
or (at the option of the Purchaser ) to its nominees:
(a) duly executed transfers in common form in respect of the
Deferred Shares in favour of the Purchaser or its nominees;
(b) definitive share certificates in respect of the Deferred Shares
and the original Share Warrants;
(c) any powers of attorney under which any document is executed on
behalf of one or more of the Vendors;
(d) if the Purchaser or its nominees so require, any other
documents necessary to substantiate the rights of the
transferors of the Deferred Shares and/or the Share Warrants
pursuant to this Agreement to transfer the same and to give a
good title
<PAGE>
to the Deferred Shares and/or the Share Warrants and enable the
Purchaser or its nominees to become the registered holder
thereof;
(e) a list of all bank accounts maintained by the Company with copies
of statements of such accounts as at a date not later than the
seventh business day before Completion and a reconciliation
statement in relation thereto providing particulars of payments
made since such date(s) other than small routine payments;
(f) a letter from the Bank confirming that none of the charges
reflected in the Debenture have crystallised as at Completion;
(g) the resignations described in Clause 4.3.3(a).
4.3.2 Each of the Warrantors and the Company shall enter into a Deed of
Indemnity with the Purchaser in the form set out in Schedule 3.
4.3.3 The Purchaser and, respectively, each of Mr. Groves and Mr. Park
shall enter into the Service Agreements.
4.3.4 Mr. Groves and Mr. Park shall procure that there shall be held a
meeting of the Board of the Company at which:
(a) there shall be appointed the persons named in Part C of Schedule
1 as directors of the Company and there shall be procured the
resignation without compensation of any nature (save for any
accrued fees detailed therein) of the auditors to the Company by
deposit of their resignation at the registered office in
accordance with Section 390 of the Companies Act together with a
written statement expressed to be for the purpose of Section
390(2)(a) of the Companies Act that there are no circumstances
connected with their resignation which they consider should be
brought to the notice of the members or creditors of the Company;
(b) the Directors shall vote in favour of the registration of the
Purchaser or its nominees as members of the Company in respect
of the Deferred Shares upon the production of duly completed
transfers (subject to stamping thereof);
(c) the Director, Peter Stone shall forthwith resign from the Board
of the Company tendering a resignation under seal in the agreed
form acknowledging that he has no claim of whatsoever nature
against the Company;
(d) the current accounting reference period of the Company as defined
by Section 224 of the Companies Act shall be shortened so as to
end on 31st March 1997;
(e) the registered office of the Company shall be changed to that of
the Purchaser's Solicitors.
4.3.5 The Purchaser shall pay the Consideration by way of telegraphic
bank transfer into the client account of the Vendors' Solicitors (the
receipt into which shall be a sufficient discharge therefor) on behalf
of the Vendors;
4.3.6 Mr. Groves and Mr. Park shall procure that the certificates of
incorporation, minute and other statutory books registers of members
and the Common Seal of the Company, all unused share certificate forms
and all prints of the memoranda and articles of association thereof in
the possession of the Company or of the Warrantors and all securities
deeds
<PAGE>
and documents of title and insurance policies and other assets
of the Company capable of delivery be delivered to the Purchaser or
its nominees;
4.3.7 Mr. Groves and Mr. Park shall procure that the Bank shall, in
respect of the Company's accounts with it, honour only the
signatures of such persons as shall be designated by the Purchaser
and shall at or before Completion instruct the Bank accordingly;
4.4 If any of the parties hereto shall not comply with any of their respective
obligations under the preceding provisions of this Clause on the date fixed
for Completion the non-defaulting parties may:
4.4.1 defer Completion with respect to some or all of the Shares to a date
not more than fourteen (14) days after the said date (in which event
the provisions of this sub-clause 4.4 shall apply to Completion as
so deferred); or
4.4.2 proceed to Completion so far as practicable but without prejudice to
such non-defaulting parties' rights whether under this Agreement or
by law; or
4.4.3 rescind this Agreement without liability to any of the other
parties.
4.5 Each of the Vendors hereby declares that so long as he remains the
registered holder of any of the Deferred Shares and/or the bearer of the
Share Warrants he will:
4.5.1 stand and be possessed of the Deferred Shares and/or the Share
Warrants, as appropriate, and the dividends and other distributions
of profits or surplus or other assets in respect thereof and all
rights arising out of or in connection therewith in trust for the
Purchaser and its successors in title;
4.5.2 at all times hereafter deal with and dispose of the Deferred Shares
and/or the Share Warrants, as appropriate, and all dividends,
distributions and rights as aforesaid as the Purchaser or any such
successor may direct;
4.5.3 at the request of the Purchaser or any such successor vote at all
meetings which he shall be entitled to attend as the registered
holder of the Deferred Shares and/or the bearer of the Share
Warrants, as appropriate, in such manner as the Purchaser or any
successors may direct; and
4.5.4 if so requested by the Purchaser or any such successor, execute all
instruments of proxy or other documents which the Purchaser may
reasonably require and which may be necessary or desirable or
convenient to enable the Purchaser or any such successor to attend
and vote at any such meeting.
4.6 Notwithstanding the completion of the sale and purchase of the Deferred
Shares and Share Warrants pursuant hereto this Agreement shall remain in
full force and effect with regard to the Warranties and to the obligations
of each party hereto not performed or fulfilled before Completion or
anything remaining to be carried out hereunder.
5. WARRANTIES
----------
5.1 The Warrantors hereby jointly and severally represent warrant and undertake
to the Purchaser in the terms of Schedule 2 to the intent that after
Completion the same shall remain in full force as representations
warranties and undertakings.
5.2 The Warranties are made and given subject to all matters fairly and clearly
disclosed in the Disclosure Letter.
<PAGE>
5.3 The rights and remedies of the Purchaser in respect of a breach of any of
the Warranties will not be affected by Completion of this Agreement, by any
investigation made by or on behalf of the Purchaser into the affairs of the
Company, by the giving of any time or other indulgence by the Purchaser to
any person, by the Purchaser rescinding or not rescinding this Agreement,
or by any other cause whatsoever except a specific waiver or release by the
Purchaser in writing and any such waiver or release will not prejudice or
affect any remaining rights or remedies of the Purchaser.
5.4 No claim in respect of any breach of the Warranties or under the Deed of
Indemnity shall be made by the Purchaser after expiry of a period of (in
the case of any claim for breach of any Warranties relating to Taxation or
under the Deed of Indemnity) six (6) years from Completion and (in the case
of all other Warranties) two (2) years from Completion unless during the
said respective periods of six (6) years and two (2) years the matter
complained of shall have been notified in writing to the Warrantors giving
adequate information so as to enable the Warrantors to appreciate the
nature and substance of the claim and any such claim shall (if it has not
previously been satisfied, settled or withdrawn) be deemed to have been
withdrawn after the expiration of six months following the expiry of the
said respective periods unless proceedings in respect of it have been
commenced by both being issued and served on the Warrantors.
5.5 No liability shall arise in respect of any claim for breach of the
Warranties or under the Deed of Indemnity unless the loss thereby sustained
(together with the aggregate amount of losses sustained arising from any
other claim or claims for breach of the Warranties and/or under the Deed of
Indemnity if any) shall exceed a total sum of fifteen thousand pounds
((Pounds)15,000).
5.6 The aggregate liability of the Warrantors in respect of all or any claims
for breach of the Warranties and under the Deed of Indemnity shall not in
any event exceed the total amount of the Consideration, and it is further
agreed that the aggregate liability of the Trustees in respect of all or
any such claims for breach of the Warranties and under the Deed of
Indemnity shall not exceed an amount equal to that part of the
Consideration received by them hereunder.
5.7 In the event that the Purchaser and/or the Company recovers any sum
(whether by way of payment, discount, credit, set-off or otherwise) from
any third party (including any Taxation authority) in respect of any matter
for which a claim has been or could be made in respect of any breach of any
of the Warranties or under the Deed of Indemnity (and whether before or
after the Warrantors have made any payment in respect thereof), then the
Purchaser and/or the Company shall (as the case may be) forthwith repay to
the Warrantors such sum so recovered, less all reasonable costs associated
with its recovery, or give credit for the same in calculating the amount of
such claims, provided that any amount repaid or for which credit is given
shall not exceed the amount of the claim or claims made against the
Warrantors.
5.8 If the Purchaser and/or the Company shall become aware of any claim in
respect of any breach of any of the Warranties or under the Deed of
Indemnity, it shall promptly give written notice thereof to the Warrantors
and shall (if the Warrantors shall indemnify and secure the Purchaser
and/or the Company to the Purchaser's reasonable satisfaction against any
liability, costs, damages or expenses which may be incurred thereby) take
such action as the Warrantors may reasonably request to avoid, resist,
mitigate or compromise the claim.
5.9 No claim in respect of any breach of any of the Warranties or under the
Deed of Indemnity may be made:-
5.9.1 if and to the extent that the amount in respect of which the claim
is made has been caused or increased by any voluntary omission or
transaction effected or entered into after the Completion Date by
the Company or the Purchaser otherwise than in the ordinary course
of business and which the Company or (as the case may be) the
Purchaser knew or ought reasonably to have known would give rise to
such claim;
<PAGE>
5.9.2 if and to the extent that any such claim results from or is
increased by any change having retrospective effect in any
legislation not in force at the date hereof;
5.9.3 if and to the extent that such claim results from or is increased by
any increase in the rates of Taxation in force at the date hereof,
or any change in the law or published practice of any Taxation
authority made after the date hereof with retrospective effect;
5.9.4 if and to the extent that such claim results from or is increased by
any change in accounting policy or basis of tax computation or
trading of the Company effected after the Completion Date;
5.9.5 if and to the extent that such claim would not have arisen or would
have been reduced or eliminated but for a failure or omission on the
part of the Company or the Purchaser after Completion to make any
claim, election, surrender or disclaimer or to give any notice or
consent or to do any other thing the making, giving or doing of
which was taken into account in computing the provision or reserve
for Taxation made in the Accounts or taken into account in the
preparation of the Accounts, insofar as the Company or (as the case
may be) the Purchaser knew or ought reasonably to have known that
such failure or omission would give rise to such claim.
5.10 Without prejudice to the rights and remedies available to the related
insurers, no claim in respect of any breach of any of the Warranties or
under the Deed of Indemnity may be made to the extent that the amount of
such claim is recoverable under any policy of insurance effected by or for
the benefit of the Company or would have been so recoverable if all the
policies of insurance in force immediately prior to the Completion Date
had been maintained in force thereafter on a no less favourable basis
without increasing the amount of any premium payable.
5.11 No claim in respect of any breach of any of the Warranties or under the
Deed of Indemnity may be made to the extent that provision or reserve has
been made therefor in the Accounts or has otherwise been taken into
account as a liability in the preparation thereof or in respect of any
matter fairly disclosed in the Accounts by way of note and the liability
of the Warrantors in respect of any such claim shall be reduced by the
amount by which any provision in the Accounts shall be proved by them to
be an over-provision.
5.12 The amount of any claim in respect of any breach of any of the Warranties
or under the Deed of Indemnity shall take into account the amount of any
relief from Taxation arising by virtue of the loss or damage in respect of
which the claim is made.
5.13 None of the Warranties shall be deemed to be infringed in respect of
anything which falls to be done in implementing the terms of this
Agreement.
5.14 No liability shall arise to the Purchaser in respect of any breach of any
of the Warranties to the extent that recovery has been made in respect of
the same subject matter by the Purchaser under the Deed of Indemnity, and
vice-versa.
5.15 Subject to the preceding provisions of this Clause if it shall be found at
any time that any matter which is the subject of the Warranties is not as
warranted, represented or undertaken then if the effect is that:
5.15.1 the Company or any asset is worth less than its value would have
been at Completion had there been no such breach; or
5.15.2 the Company has incurred any liability which it would not have
incurred or any liability in excess of the liability which it
would have incurred had the matter been as warranted represented
or undertaken; or
<PAGE>
5.15.3 the Company suffers any other loss direct or indirect or cost,
charge or expense directly attributable to such breach
then without prejudice to all other rights and remedies available at any
time to the Purchaser the Warrantors shall if the Purchaser by notice in
writing so requires forthwith pay to the Purchaser an amount equal to the
diminution of value of such assets as aforesaid or to the amount of such
liability or excess liability as aforesaid or to such other loss, cost,
charge or expense as aforesaid. Any such amount so paid by the Warrantors
to the Purchaser shall be treated as paid by way of pro rata reduction of
the Consideration.
6. PROTECTION OF PURCHASER'S INTERESTS
-----------------------------------
6.1 In this Clause 6 the following definitions apply:-
<TABLE>
<C> <S>
"confidential shall include trade secrets and any
information" formulae, processes, methods and knowledge
in connection with the Company which is
confidential;
"Products" means all those products referred to in
Schedule 7.;
"Restricted Products" the Products and any other products of a
type which at the date hereof are
manufactured distributed or sold by the
Company and in relation to the manufacture,
distribution or sale of which the respective
Vendors have obtained confidential
information;
"Territory" means the United Kingdom and any other
country in which the Company manufacturers,
markets or sells the Products.
</TABLE>
6.2 Since each of Mr Groves and Mr Park (who shall together be referred to in
this Clause as the "Covenantors") has obtained in the course of his
employment with the Company to the date hereof confidential information
particularly in the field of the Products each of the Covenantors hereby
agrees with the Purchaser that he will be bound by the following
restrictions (each of which shall apply whether the relevant activities are
carried on by such Covenantor or such Covenantor is interested or concerned
in the same either solely or jointly with or as manager, adviser,
consultant or agent for any other person, firm or corporation directly or
indirectly, including but without prejudice to the generality thereof, as a
shareholder, employee or director of a company):
6.2.1 if the Company shall have obtained any confidential information from
any third party under an agreement including restrictions on
disclosure known to him he will not without the consent of the
Company at any time infringe such restrictions;
6.2.2 he will not during a period of two (2) years after the Completion
Date be engaged in any business (a "competing business") which is or
is about to be engaged in the manufacture, distribution or sale
within the Territory of the Restricted Products in competition with
the Company. This restriction shall not operate to prohibit an
employment or provision of services none of the duties of which
relate directly or indirectly to the manufacture, distribution or
sale of the Restricted Products;
6.2.3 he will not during the period of two (2) years after the Completion
Date assist with technical advice in relation to the [Restricted
Products] for any person, firm or company engaged or about to engage
within the Territory in any competing business;
<PAGE>
6.2.4 he will not during the period of two (2) years after the Completion
Date within the Territory directly or indirectly solicit in
competition with the Company in relation to the Restricted Products
the custom of any person, firm or company who at any time during the
last two (2) years prior to the Completion Date was a customer of
the Company or who at Completion was negotiating with the Company in
relation to any of the Restricted Products;
6.2.5 he will not during the period of two (2) years after the Completion
Date solicit or entice or endeavour to solicit or entice away any
director, manager or employee of the Company whether or not such
person would commit any breach of his contract of employment by
reason of leaving the service of such company;
6.2.6 he will not during the period of two (2) years after the Completion
Date employ any person who has during the last two (2) years prior
to the relevant date been a director, manager, employee of or
consultant to the Company and who by reason thereof is or may be
likely to be in possession of any confidential information.
6.3 Nothing in this Clause shall prevent any of the Covenantors holding for
investment purposes up to five per cent (5%) of any class of securities of
a company which are dealt with on the London Stock Exchange or any other a
recognised investment exchange.
6.4 While the restrictions in this Clause are considered by the parties to be
reasonable in all the circumstances and not to work harshly on the
Covenantors it is agreed that if such restrictions taken together shall be
adjudged by a court of competent jurisdiction to go beyond what is
reasonable in all the circumstances for the protection of the Purchaser 's
interests but would be adjudged reasonable if part or parts of the wording
thereof were deleted or if some modifications to the area, extent or
duration of the restriction concerned were made the said restrictions shall
apply with such words deleted or modification made as the case may be.
6.5 Each of the Covenantors hereby agrees that he will at the request and cost
of the Purchaser enter into a direct agreement or undertaking with any
other company or companies in the REI Group whereby he will accept
restrictions and provisions corresponding to the restrictions and
provisions herein contained (or such of them as may be appropriate in the
circumstances) in relation to the same products and area and for the same
period as such company or companies may reasonably require for the
protection of its or their legitimate business interests but so that such
restrictions and provisions shall not be more extensive that those
contained in this Clause 6.
7. GENERAL PROVISIONS
------------------
7.1 All negotiations between the parties hereto are merged into this Agreement
which, as the parties hereby acknowledge, constitutes the entire contract
and agreement between them, and the Warrantors acknowledge that (save as
contained herein) they have not relied on any warranty or representation by
the Purchaser and the Purchaser acknowledges that it has not relied on
any warranty, representation or undertaking other than the Warranties in
entering into this Agreement.
7.2 This Agreement is personal to each of the parties hereto and may not be
assigned in whole or in part by any of them without the prior written
--
consent of the other parties. Save as aforesaid this Agreement shall,
where the context so permits, be binding upon and enure to the benefit of
the personal representatives of or the other successors in title to the
parties hereto.
7.3 Any liability to the Purchaser under this Agreement may in whole or in
part be released, compounded or compromised or time or indulgence given by
the Purchaser (in its absolute discretion) as regards any of the
Warrantors under such liability without in any way prejudicing or affecting
their rights against the other of the Warrantors in respect of the same or
a like liability whether joint and several or otherwise.
<PAGE>
7.4 This Agreement may be executed in one or more counterparts which shall
together form one and the same instrument.
8. NOTICES
-------
8.1 Any notice required to be served hereunder may be given personally or by
sending the same by first class registered post or recorded delivery:
8.1.1 in the case of the Vendors or the Warrantors to their respective
addresses set out in this Agreement (or such other address as shall
be notified in accordance with this Clause) with copies to the
Vendors' Solicitors;
8.1.2 in the case of the Purchaser to its principal or registered office
for the time being with copies to the Purchaser 's Solicitors
(quoting reference SRL)
and any notice so given by post as aforesaid shall be deemed served forty
eight (48) hours after it is posted and in proving such service it shall be
sufficient to prove that the envelope containing the notice was properly
addressed and posted as aforesaid.
8.2 Any notice given hereunder shall be effective as regards each of the
Warrantors if served on any of the Warrantors.
9. ANNOUNCEMENTS AND INFORMATION
-----------------------------
Subject as required by law any announcements or other disclosure of the
terms of relating to the sale and purchase hereunder (including statements
made in annual reports and accounts) shall not be made by any party hereto
without the prior consent of the other parties.
10. COSTS
-----
Each party shall bear their own costs, charges and expenses of and
incidental to the preparation and carrying into effect of this Agreement
and any document executed in connection therewith save that the Purchaser
shall bear the Warrantors' reasonable legal costs in respect of the same.
11. PROPER LAW
----------
This Agreement shall be governed and construed in accordance with English
Law. The parties hereto submit to the non-exclusive jurisdiction of the
English Courts in respect of all suits, proceedings, claims and actions
arising under or in connection with this Agreement or any other document
referred to herein.
IN WITNESS whereof these presents have been executed the day and year first
before written
<PAGE>
SCHEDULE 1
----------
Part A (Vendors)
----------------
<TABLE>
<CAPTION>
(1) (2) (3)
<S> <C> <C>
Name Number of Shares/Share Consideration
Warrants held
Christopher Brian Groves 40 Deferred Shares of (Pounds)1
(Pounds)1 each
Rebecca Sumner Park 40 Deferred Shares of (Pounds)1
(Pounds)1 each
Wilfred Wright and Share Warrants to bearer (Pounds)394,999
Simone Clare Wright representing 4,000 US
Dollar Ordinary Shares
of US $0.01 each
Christopher Brian Groves Share Warrants to bearer (Pounds)394,999
representing 4,000 US
Dollar Ordinary Shares
of US $0.01 each
</TABLE>
Part B (Directors)
------------------
<TABLE>
<CAPTION>
<C> <S>
Christopher Brian Groves Amberley House, France Lane, Hawkesbury
Upton, Badminton, Gloucestershire GL9 1AS
William Stephen Park Fox Lodge, The Green, Biddestone, Wiltshire
SN14 7DG
Peter Stone Green Gables, Redfield Hill, Bitton, Bristol.
</TABLE>
Part C (Additional Directors)
-----------------------------
<TABLE>
<CAPTION>
<C> <S>
Amrit Das 22700 Savi Ranch, Yorba Linda, California 92887-4608
Stephen Owen 115 Kingston Road, Leatherhead, Surrey KT2 7SO
Brian Paul 22700 Savi Ranch, Yorba Linda, California 92887-4608
</TABLE>
Part D (Resigning Directors)
----------------------------
<TABLE>
<CAPTION>
<C> <S>
Peter Stone Green Gables, Redfield Hill, Bitton, Bristol
</TABLE>
<PAGE>
SCHEDULE 2
----------
Representations, Warranties and Undertakings
--------------------------------------------
by the Warrantors
-----------------
PART A GENERAL AND INTERPRETATION
B ACCOUNTS AND FINANCIAL POSITION
C TAXATION
D CORPORATE
E COMMERCIAL
F PROPERTIES AND OTHER ASSETS
G EMPLOYEES
PART A:
GENERAL AND INTERPRETATION
- --------------------------
A(1) All copy documents supplied by the Warrantors or the Vendor's Solicitors
to the Purchaser or the Purchaser 's Solicitors during the negotiations
leading to this Agreement are true and complete copies of the originals
and, in the case of copy agreements or deeds, set out the complete terms
of agreement between the parties thereto in relation to the subject matter
thereof.
A(2) The information set out in the Schedules and the Recitals is true and
accurate.
A(3) Where the Warrantors have given a warranty representation or undertaking
to the best of their "knowledge, information and belief", or "so far as
they are aware" or any similar expression or have given a warranty,
representation or undertaking that they have "no reason to believe" that
any particular circumstance will obtain or has obtained, then save as may
be otherwise specifically stated, it shall be deemed that the Warrantors
have made due and careful enquiries in relation to the subject matter of
such warranty, representation or undertaking for the purposes of this
Agreement. A matter shall be treated as being within the knowledge or
belief of the Warrantors if such matter is within the knowledge or belief
collectively or individually of any one or more of the Warrantors.
PART B:
ACCOUNTS AND FINANCIAL POSITION
- -------------------------------
The Accounts
B(1) The Accounts have been prepared in accordance with the requirements of the
requirements of Companies Act and on a going concern basis consistent with
the corresponding accounts for all accounting periods ending in the
previous two (2) years ("the specified period") and in accordance with
generally accepted accounting practice in the United Kingdom.
B(2) The Accounts are true complete and accurate in all respects and show a
true and fair view of the state of affairs of the Company as at the
Accounts Date and of its results for the accounting period ending on the
Accounts Date and at that date were are not affected by any unusual,
extraordinary, exceptional or non-recurring items or by any other abnormal
factor rendering such results unusually better or worse than they might
otherwise have been.
B(3) The Accounts
<PAGE>
(a) make adequate provision and/or reserve both for all bad and doubtful
debts and for depreciation and amortisation of the fixed assets of the
Company having regard to their original cost and estimated useful
life;
(b) include full provision and/or reserve for all material actual
undisputed liabilities of the Company (whether or not deferred) and
proper provision for or notes of all contingent and disputed
liabilities;
(c) make full provision and/or reserve to cover all taxation and amounts
representing taxation to or for which the Company was at the Accounts
Date or at any time thereafter may have become or may hereafter become
liable to be assessed or charged or to pay on or in respect of or by
reference to any profits for any period ending on or before the
Accounts Date or in consequence of any dividends or other
distributions, loans, advances, payments or transfers of value made or
any consideration given on or before the Accounts Date or in
consequence of any other transaction, act, omission or event effected,
done, occurring or taking place on or before the Accounts Date whether
by the Company or otherwise;
(d) make full provision and/or reserve for all material capital
commitments of the Company as at the Accounts Date;
(e) correctly set out the authorised and issued share capital of the
Company as at the Accounts Date.
B(4) All of the reserves appearing in the Accounts are available for
distribution.
B(5) Full provision is made in the Accounts in a deferred taxation account for
any corporation tax on chargeable gains and balancing charges that would
arise on the sale of all fixed assets at the values attributed to them in
the Accounts.
B(6) The Management Accounts have been prepared on a basis consistent in all
material respects with the policies applied in the preparation of the
Accounts and fairly reflect the state of affairs of the Company as at 31st
October 1996 and its results over the period from 1st June 1996 to such
date.
B(7) The Company has not factored any of its debts or engaged in financing of
the type which would not require to be shown or reflected in the Accounts.
B(8) The books and records of the Company accurately present and reflect in
accordance with proper recognised and accepted accounting principles and
standards all material transactions entered into by the Company or to which
it has been a party.
Period since the Accounts Date:
- -------------------------------
B(9) Since the Accounts Date
(a) there has been no material change in the financial position of the
Company as compared with the financial position disclosed by the
Accounts and all amounts received by the Company have been deposited
with the Company's bankers and appear in the appropriate book of
account;
(b) the business of the Company has been carried on in the ordinary and
usual course so as to maintain the same as a going concern;
(c) the business of the Company has not been materially and adversely
affected by the loss of any important customer or source of supply or
by any abnormal factor not affecting
<PAGE>
similar businesses to a like extent and the Warrantors (without having
made any specific enquiry) are not aware of any facts which are likely
to give rise to any such effects;
(d) the Company has not repaid any loan capital in whole or in part nor
has it by reason of any default by it in any of its obligations become
bound or liable to be called upon to repay prematurely any loan
capital or borrowed monies;
(e) save for the ordinary business of the most recent Annual General
Meeting of the Company held there has been no resolution of or consent
by the members or any class of members of the Company;
(f) no transaction of any importance to which the Company has been a party
or other event has taken place which if it had taken place on or
before the Accounts Date would have required to be disclosed or
reflected in the Accounts or in the report of the Directors
accompanying the Accounts;
(g) no dividend or other distribution has been declared, paid or made by
the Company;
(h) the Company has not entered into any contract involving expenditure by
it on capital account;
(i) the Company has not made any transfer from any provision against
deferred taxation to its distributable reserves.
B(10)Subject to any provision in the Accounts for bad debts or doubtful debts
no part of the amounts included in the Accounts as due from debtors has
been released on terms that any debtor pays less than the book value of his
debt as at the Accounts Date or has been written off or has proved to any
extent irrecoverable or is now regarded as irrecoverable or has been
compromised upon any terms.
Loans
- -----
B(11)The aggregate amount appearing in the Accounts as being outstanding in
respect of loans owing by the Company was at the Accounts Date the
aggregate of the sums from whatsoever source so outstanding and:
(a) such aggregate did not and the amount now outstanding in respect of
loans owing by the Company does not exceed any limitation on the
Company's borrowing contained in its articles of association or in any
debenture or loan stock deed or other document executed by it or, in
the case of borrowings on overdraft, its overdraft facilities;
(b) the amount unpaid of principal, interest and all other monies due
under or in connection with such loans did not at the Accounts Date
exceed in the aggregate the amount so appearing;
(c) all amounts outstanding and appearing in the books of the Company as
loan accounts or as due to Directors or shareholders wholly represents
money or money's worth paid or transferred to the Company as the case
may be or remuneration accrued due and payable for services rendered
and (save for such remuneration) no part thereof has been provided
directly or indirectly out of the assets of the Company;
(d) there is no indebtedness of the Company to the Warrantors or any of
them;
(e) a statement of the bank accounts and the credit or debit balances
thereon of the Company as at a date not earlier than seven days prior
to Completion is contained in the Disclosure Letter and the Company
does not have any other bank or deposit account (whether in
<PAGE>
credit or overdrawn) not included in such statement and since the date
of such statements there have been no payments out of any such
accounts except for routine payments and the present balances on such
accounts are not now substantially different from the balances shown
on such statements;
(f) there are no amounts owing to the Company by the Warrantors or any of
them;
(g) that there are outstanding no options, rights to subscribe, agreements
or commitments in respect of any issued or unissued loan capital of
the Company and there is not, and there has been no exercise,
purported exercise or claim of, any charge, lien, encumbrance or
equity over any such issued or unissued loan capital.
Insolvency
- ----------
B(12)No receiver or administrator has at any time been appointed of the whole
or part of the assets or undertaking of the Company and no voluntary
arrangement (within the meaning of the Insolvency Act 1986) has been
proposed or approved.
B(13)The Company is not in liquidation and no order, petition, application,
proceeding, meeting or resolution has been made, presented, brought, called
or passed for the purpose of liquidating the Company.
B(14)The Company is not insolvent and has not stopped payment of or become
unable to pay its debts for the purposes of s.123 of the Insolvency Act
1986 and since the Accounts Date there has been no delay by the Company in
the payment of any obligation due for payment.
Software and Royalties
- ----------------------
B(15)In the Accounts all software development costs are charged to the profit
and loss account as incurred and all royalties are charged to the profit
and loss account when paid.
PART C:
TAXATION
- --------
C(1) Returns, Notices and Clearances
-------------------------------
(a) All returns, notices, documents, computations or other information or
payments which are or have been required to be made by the Company for
any Taxation purposes have been made within the requisite periods and
are up to date and on a proper basis and none of them is, or so far as
the Warrantors are aware is likely to be, the subject of any dispute
with the Inland Revenue or other fiscal authority.
(b) All particulars furnished to the Inland Revenue or other fiscal
authority in connection with the application for any consent or
clearance by the Company fully and accurately disclosed all facts and
circumstances material to the decision by the Inland Revenue or such
other authorities, any such consent or clearance is valid and
effective, and any transaction for which such consent or clearance has
previously been obtained has been carried into effect (if at all) only
in accordance with the terms of the relative application for consent
or clearance.
(c) The Company has not taken any action which has had or is likely to
have the result of altering, prejudicing or in any way disturbing any
arrangement or agreement which it has with the Inland Revenue or other
fiscal authority and full particulars of any such agreement or
arrangement are set out in the Disclosure Letter.
<PAGE>
C(2) Penalties and Interest
----------------------
(a) Neither the Company nor any director or officer of the Company has
since the Accounts Date paid or become liable to pay any fine,
penalty or interest charged by virtue of the TMA or any other
statutory provision relating to Taxation.
(b) The Company has never been the subject of an investigation or
discovery by or involving the Inland Revenue Special Office or
Enquiry Branch and there are no circumstances existing of which the
Warrantors are aware which make it likely that an investigation or
discovery will be made.
C(3) Taxation Claims, Liabilities and Reliefs
----------------------------------------
(a) There are set out in the Disclosure Letter, with express reference to
this clause, full details of all matters relating to Taxation in
respect of which the Company (either alone or jointly with any other
person) has, or at Completion will have, an outstanding entitlement:
(i) to make any claim including a supplementary claim for relief
under the 1970 Act or the 1988 Act or any other statutory
provision in relation to Taxation;
(ii) to make any election for one type of relief, or one basis,
system or method of Taxation, as opposed to another;
(iii)to make any appeal (including a further appeal) against an
assessment to Taxation;
(iv) to make any application for the postponement of Taxation.
(b) The Company has not nor is it entitled to make a claim under s.24 of
the TCGA (assets lost or destroyed, or whose value becomes
negligible) or s.48 of the TCGA (consideration due after time of
disposal).
C(4) Capital Allowances
------------------
(a) Since the Accounts Date the Company has not done nor omitted to do
nor agreed to do nor permitted to be done any act as a result of
which any disposal value may be required to be brought into account
under s.24 CAA 1990 in respect of writing down allowances and
balancing charges or as a result of which there may be any recovery
of excess relief pursuant to ss.46 or 47 CAA 1990.
(b) All plant, machinery, equipment and vehicles held by the Company on
lease is and has at all times been used for a qualifying purpose in
the requisite period in accordance with Chapter V of Part II of the
CAA 1990.
C(5) Deductions from Payments
------------------------
(a) The Company has complied in all respects with the provisions of the
following sections and all regulations made thereunder and has made
and accounted for all such deductions and retentions as should have
been made by virtue hereof:- ss.78-79 of the TMA and ss.119, 123,
349, 350, 555, 559 and 582 of the 1988 Act.
(b) The Company has not received any notice under s.23 of the 1988 Act in
respect of collection of tax from lessees and agents which remain
outstanding.
C(6) Acquisitions from members of the same group.
--------------------------------------------
<PAGE>
(a) The execution or completion of this Agreement will not result in any
profit or gain being deemed to accrue to the Company for Taxation
purposes whether pursuant toss..178 and 179 of the TCGA or otherwise.
(b) No tax is or may become payable by the Company pursuant to s.347 of
the 1988 Act or s.190 of the TCGA 1992 in respect of any chargeable
gain which accrued prior to the date hereof.
C(7) Deprecatory Transactions
------------------------
No allowable loss which may accrue on the disposal by the Company of any
asset is likely to be reduced by reason of the provisions of ss.176 or 177
of the TCGA relating to transactions within a group and dividend stripping
and no chargeable gain or allowable loss arising on a disposal by the
Company is likely to be adjusted pursuant to the provisions of ss.29 and 30
of the TCGA or to fall within the provisions of s.34 of the TCGA relating
to value shifting.
C(8) Carry Forward of Losses
-----------------------
Nothing has been done and no event or series of events has occurred or will
as a result of any contract, agreement or arrangement entered into before
the date hereof occur which might when taken together with the entry into
or completion of this Agreement cause or contribute to the disallowance of
the carry forward of losses or excess charges on income or surplus advance
corporation tax under the provisions of ss.245, 245A, 393, 768 or 768A of
the 1988 Act.
C(9) Sale and Leaseback of Land
--------------------------
The Company has not been nor will it be subject to tax by reason of any
transaction which has taken place which falls within the provisions of
s.780 of the 1988 Act.
C(10)Development Land Tax
--------------------
The Company has no outstanding liability nor dispute relating to
development land tax nor has it elected to pay development land tax by
instalments any of which remain outstanding.
C(11)Replacement of Business Assets
------------------------------
(a) The Company has not purchased any asset subject to a claim under s.175
of the TCGA.
(b) The Company has not made any claim under s.140 of the TGCA or under
ss.23, 152, 153, 154 or 247 of the TCGA which would affect the amount
of the chargeable gain or allowable loss which would but for such
claim have arisen on a disposal of any of its assets.
C(12)Unremittable Income and Capital Gains
-------------------------------------
The Company has neither received nor become entitled to any income which is
unremittable income within the meaning of s.584 of the 1988 Act nor any
gain to which s.279 of the TCGA could apply.
C(13)Transactions at Arm's Length
----------------------------
(a) No transactions or arrangements involving the Company have taken place
or are in existence in circumstances where the provisions of s.770 of
the 1988 Act have been or may be applied and so far as the Warrantors
are aware the Inland Revenue or its equivalent in other countries have
not investigated any transactions or arrangements
<PAGE>
involving the Company with a view to applying s.770 of the 1988 Act or
equivalent legislation in other countries and the Warrantors have no
reason to believe that such an investigation will be started in
respect of any arrangements in existence at present.
(b) The Company does not own nor has it agreed to acquire any asset nor
has it received or agreed to receive any service or facilities
(including without limitation the benefit of licenses or agreements)
the consideration for the acquisition or provision of which was or
will be in excess of market value or otherwise than on an arm's length
basis.
(c) The Company has not agreed to dispose of any asset nor has it provided
or agreed to provide any services or facilities the consideration for
the disposal or provision of which will be less than its market value
or otherwise than on an arms length basis.
(d) The Company has not disposed of or acquired any asset in circumstances
that the provisions of s.17 of the TCGA did or would apply.
C(14) Recovery of Tax from Shareholders
---------------------------------
The Company has not received any capital distributions to which the
provisions of s.346 of the 1988 Act could apply.
C(15) Gifts
-----
The Company has not received any assets by way of gift as mentioned in
s.282 of the TCGA.
C(16) Stock dividends
---------------
The Company has not issued any share capital to which the provisions of
s.249 of the 1988 Act in relation to stock dividends could apply nor does
the Company own any such share capital.
C(17) Anti-avoidance provisions
-------------------------
(a) The Company has not been engaged in or been a party to any
transaction or series of transactions or scheme or arrangement of
which the main purpose or one of the main purposes was or could be
said to be the avoidance of or a reduction in the liability to
Taxation and, without prejudice to the generality of the foregoing,
the Company has not been a party to or otherwise involved in any
transaction to which any of the following provisions could apply:-
the 1988 Act: s.37, 56, 116, 240(11), 395, 399, 410, 729, 731-737,
774, 779, 781 and 786 CAA 1990 ss.75 & 159 (4) (5) and (6).
(b) The Company has not been a party to or otherwise involved in any
transaction to which any of the following provisions have been or
could be applied other than transactions in respect of which all
necessary clearances or consents have been obtained:-
the 1988 Act: ss.703-709, 765 and 776
the TCGA: ss.135-139
C(18) Close companies
---------------
(a) No apportionments of income of the Company are liable to be made
pursuant to ss.423 to 430 (inclusive) and Schedule 19 to the 1988
Act for any accounting period of the Company beginning before 1st
April 1989.
<PAGE>
(b) The Company has at all times up to the date hereof been a 'trading
company' or a 'member of a trading group' as defined in paragraph 7
Schedule 19 to the 1988 Act.
(c) No distribution within s.418 of the 1988 Act has been made by the
Company.
(d) The Company has not made any loan or advance which falls with ss.419
or 422 of the 1988 Act nor has the Company released or written off or
agreed to release or write off the whole or any part of such loan or
advance.
(e) The Company has made no transfers of value within s.94 of the IHTA.
(f) The Company is not and has never been a close-investment holding
company within the meaning of s.13A of the 1988 Act.
C(19)The Company has at no time surrendered or claimed or agreed to surrender
or claim any amount of ACT under the provisions of s.240 of the 1988 Act
and has never made or received or agreed to make or receive a payment in
respect of the surrender of the benefit of an amount of ACT within the
meaning of s.240(8) of the 1988 Act.
C(20)Demergers and Purchase of Own Shares
------------------------------------
(a) The Company has never been engaged in or a party to any of the
transactions set out in ss.213 - 218 of the 1988 Act nor has it made
or received a chargeable payment as defined therein.
(b) The Company has not redeemed, repaid or repurchased nor agreed to
redeem, repay or purchase any of its own shares.
C(21)Base Values and Costs of Acquisition
------------------------------------
(a) On the assumption that there was a disposal or deemed disposal
(whether or not that be the case), such disposal or deemed disposal at
Completion of any asset held by the Company otherwise than as trading
stock or any interest in land (however held) for a consideration equal
to the book value of that asset in the Accounts would not give rise to
any liability to Taxation (irrespective of any deduction or set-off of
any loss, allowance or other relief that has arisen or may arise or
may be or become available to diminish, reduce or extinguish such a
liability in respect of any such asset or interest in land).
(b) The Company has not since the Accounts Date engaged in any transaction
in respect of which there may be substituted for the purposes of
Taxation a different consideration for the actual consideration given
or received by the Company.
(c) No asset owned by the Company (other than plant and machinery in
respect of which it is entitled to capital allowances) is a wasting
asset within the meaning of s.44 of the TCGA.
(d) No assets held by the Company have been the subject of a claim under
the provisions of s.165 of the TCGA.
C(22)Allowable Capital Losses
------------------------
(a) No disposal by the Company giving rise to a chargeable gain has taken
place since the Accounts Date nor will such a disposal take place by
virtue of any condition in a contract for a disposal entered into
before Completion becoming satisfied or fulfilled at any time.
(b) The Company has not incurred a capital loss to which the provisions of
s.18(3) of the TCGA are applicable.
<PAGE>
C(23)Payments
--------
No rents, interest, annual payments or other sums of an income nature paid
or payable by the Company or which the Company is under an obligation to
pay in the future are wholly or partially disallowable as deductions or
charges in computing profits for the purposes of taxation.
C(24)Deductions Employee Benefits
----------------------------
The Company has not made or provided or agreed to make or provide any
payment or benefit to or for any person who is has been or is anticipated
to become an officer or employee of the Company or a dependent of any such
persons which is not allowable as a deduction in computing for tax purposes
the profits of the Company.
C(25)Inheritance Tax
---------------
(a) No transfer of value as defined in s.3 IHTA has at any time been made
by the Company.
(b) There is not now in existence any circumstance whereby any such power
as is mentioned in s.212 IHTA could be exercised in relation to any
shares, securities or other assets of the Company or could be
exercised but for s.204(6) IHTA.
(c) There is no outstanding Inland Revenue charge for unpaid inheritance
tax (as provided by ss.237 and 238 IHTA) over any asset of the Company
or over any shares in the capital of the Company.
C(26)Foreign Loan Interest
---------------------
The Company has not since 31st March 1982 received any foreign loan
interest on which double taxation relief would or may be restricted under
s.798 of the 1988 Act.
C(27)Chargeable Gains
----------------
(a) The Company is not owed any debt upon the disposal or satisfaction of
which a liability to corporation tax on chargeable gains could arise.
(b) No asset owned by the Company has been the subject of a deemed
disposal under Schedule 2 to the TCGA so as to restrict the extent to
which the gain or loss over the period of ownership may be apportioned
by reference to straight line growth.
(c) The Company has not acquired benefits under any policy of assurance or
contract for a deferred annuity on the life of any person other than
as original beneficial owner.
(d) The Company has not claimed and is not entitled to claim under s.253
of the TCGA that an allowable loss has accrued in respect of any loan
made by it.
C(28)Business Expansion Scheme
-------------------------
The Company has not issued any certificate under s.306 of the 1988 Act
relative to the Business Expansion Scheme.
C(29)Stamp Duty and Capital Duty
---------------------------
(a) All documents in existence in the enforcement of which the Company is
or was or may be or become interested have been duly stamped or
adequate provision and/or reserve has
<PAGE>
been made therefor (including any penalty which may be payable in
respect thereof) in the Accounts.
(b) Within the period of five years ending on the date of this Agreement
no relief or exemption has been claimed from stamp duty under s.42 of
the FA 1930 and no relief or exemption from stamp duty as aforesaid
has at any time been claimed which has become liable to forfeiture.
C(30)VAT
---
(a) The Company is a registered and taxable person for the purposes of the
VAT legislation (which for the purposes of this paragraph means the
VATA and all orders, rules, regulations, notices, provisions,
directions or conditions made laid down given or imposed thereunder)
and the Company:
(i) maintains complete, correct and up-to-date records appropriate
or requisite for the purposes of the VAT legislation;
(ii) has not at any time been treated as a member of a group for such
purposes and no application for it to be so treated has at any
time been made;
(iii) is not partially exempt;
(iv) has complied in all material respects with the VAT legislation;
(v) is not and will not be in arrears with any payments or returns
of or in respect of VAT due in relation to the supply by the
Company of goods or services prior to the date hereof or liable
to any abnormal or non-routine payment of VAT in relation to any
such supplies or any forfeiture or penalty or to the operation
of any penal provision in relation to any such VAT;
(vi) has not been required by the Commissioners of Customs and Excise
to give security;
(vii) is not and will not become liable for VAT by virtue of s.47 of
the VATA; and
(viii)has not carried out or been involved in any act or transaction
in consequence whereof the Company is or may be held liable for
any VAT calculated by reference to the supply of goods or
services by any other person.
(b) The Disclosure Letter contains full particulars of any claim for bad
debt relief made or which may be made by the Company under s.36 of the
VATA.
(c) No document has left the possession of the Company which if improperly
used by a third party could lead to a liability on the Company to pay
VAT under Paragraph 5 of Schedule 11 to the VATA.
(d) The Company has not, during the period of twelve or twenty-four months
respectively preceding today's date, received a surcharge liability
notice under s.59 of the VATA or a penalty liability notice under s.69
of the VATA.
C(31) Residence
---------
The Company is and has always been resident only in the United Kingdom.
C(32) Social Security
---------------
<PAGE>
The Company has not provided any remuneration to directors or employees of
the Company in any form which did not give rise to employer's national
insurance contributions on that remuneration by virtue of the Social
Security Regulations.
CORPORATE
- ---------
Share Capital
- -------------
D(1) The Company has not since the Accounts Date issued or created or agreed to
issue or create any shares or given or agreed to give any option to
subscribe for any shares not issued or agreed to issue or give any option
in respect of any debentures or other securities.
D(2) The Deferred Shares and the US Dollar Ordinary Shares of US $0.01 each
represented by the Share Warrants constitute the entire issued share
capital of the Company and upon Completion the Deferred Shares and the
Share Warrants will be transferred or delivered, as the case may be, free
from all options, charges, liens, encumbrances or other form of security or
encumbrance on, over or affecting the same and (except as herein otherwise
provided) together with all rights attaching thereto as at the date hereof
and (each of the Vendors having hereby waived any such right which he may
have) no person has any right to call for the issue of any shares of the
Company and there are no options or other agreements under which the
Company may have to issue any shares.
D(3) The Company has not at any time:
(i) repaid or agreed to repay or redeemed any shares of any class of its
share capital or otherwise reduced or agreed to redeem purchase cancel
or reduce its issued share capital or any class thereof;
(ii) capitalised or agreed to capitalise, in the form of shares or
debentures or other securities or in paying up any amounts unpaid on
any shares, debentures or other securities, any profits or reserves of
any class or description or passed or agreed to pass any resolution to
do so.
Books and Records
- -----------------
D(4) All returns notices particulars resolutions and other documents required
to be delivered or returned by the Company to the Registrar of Companies
have been duly delivered or returned by the Company and have been
correctly and properly prepared and filed.
D(5) The statutory books and minute books of the Company have been properly
written up and the Company has not received any application or request for
rectification of its register of members.
Compliance
- ----------
D(6) (a) The Company is empowered and duly qualified to carry on business in
all jurisdictions in which its present businesses are now carried on.
(b) Compliance has been made by the Company with all legal requirements
concerning its memorandum and articles of association of and all
resolutions passed by the Company and all issues and proposed issues
of shares debentures or other securities thereof and all payments of
dividends and interest.
Directors
- ---------
D(7) The Company does not have a shadow director (within the meaning of s.741
Companies Act 1985) who is not treated as a Director for all the purposes
of the Companies Act.
<PAGE>
Subsidiaries
- ------------
D(8) The Company never has had and does not have at the date hereof any
subsidiary and is not and never has been a subsidiary company.
D(9) The Company does not own or have registered in its name and has not agreed
to acquire shares in the capital or other securities in any company.
PART E:
COMMERCIAL
- ----------
Trading Obligations
- -------------------
E(1) To the best of the knowledge, information and belief of the Warrantors the
Company has observed and performed all the material terms and conditions on
its part to be observed and performed under any trading contracts, bills of
exchange and other material contractual obligations.
E(2) The Company will not hereafter be required to undertake any work or supply
any goods or services (otherwise than at full market value) following the
delivery of goods or provision of services by the Company under a contract
entered into prior to the date hereof save for the provision of normal
after sales service.
Existing suppliers, customers and approvals
- -------------------------------------------
E(3) None of the Warrantors has any reason to believe (but without having made
any specific enquiry) that after the date hereof as a result of the
proposed acquisition of the Company by the Purchaser:
(a) any supplier of the Company will cease supplying the Company or may
substantially reduce its supplies to the Company; or
(b) any customer of the Company will terminate any contract with the
Company or cease or materially reduce its business with it; or
(c) any of the licences, consents or approvals currently granted to the
Company required in connection with the carrying on of its business in
the manner in which it has been carried on at any time during the two
years prior to the date hereof will be withdrawn.
E(4) The Company has not received any material complaint from any of its
customers (being a complaint which has not to the best of the Warrantors'
knowledge information and belief been remedied to the satisfaction of the
relevant customer) as to any goods or services provided or agreed to be
provided by the Company and the Company is not presently in dispute with
any of its suppliers as to any goods or services supplied or agreed to be
supplied by any such supplier or as to any payment due or to become due
from the Company.
Tenders, etc
- ------------
E(5) No offer tender or the like given or made by the Company and still
outstanding is capable of giving rise to a contract merely by any
unilateral act or omission of a third party.
Transactions not in ordinary course of business
- -----------------------------------------------
E(6) The Company has not since the Accounts Date entered into any long term or
abnormal contract or undertaken any obligations whatsoever except such as
are usual and necessary in the ordinary and proper course of its business
and there are no subsisting contracts for the purchase of land by the
<PAGE>
Company or for the sale of land at a price substantially lower than market
value at the dates such contracts were made.
E(7) The Company is not a party to any long term unusual or onerous contract or
any contract not made in the ordinary course of business or obligations,
practices agreements or arrangements outstanding of a nature or magnitude
calling for special attention or which restrict the Company's freedom to
carry on the whole or any part of its business in any part of the world in
such manner as it thinks fit or of a nature contravening the provisions of
or requiring registration under the Restrictive Trade Practices Acts, the
Resale Prices Act 1976, the Fair Trading Act 1973, the Monopolies and
Mergers Acts, Articles 85 or 86 of the Treaty of Rome or any European
Community legislation or any provision of the Treaty of Rome or other
anti-trust anti-monopoly or anti-cartel legislation.
E(8) The Company has not entered into any contract or commitment which is
either now outstanding or has been fulfilled since the Accounts Date to
which any of the Warrantors or his spouse, children or parents or any of
them or any associated company is a party or in which any such persons or
such company is beneficially interested and for this purpose the term
"associated company" shall mean any company or firm of which any of the
Warrantors his spouse, children or parents or any of them is a director
partner shareholder or member of any subsidiary of such company.
E(9) The Company has not at the date hereof any outstanding contracts or
engagements, guarantees, undertakings or liabilities (including contingent
and unliquidated liabilities) other than liabilities implied by statute or
specifically disclosed in or taken into account in the preparation of the
Accounts or incurred in the ordinary and proper course of its day to day
trading since the Accounts Date.
Name
- ----
E(10) The Company does not use on its letterhead books or vehicles or otherwise
carry on its business under any name other than its corporate name.
Litigation
- ----------
E(11) The Company is not engaged whether as plaintiff or defendant or otherwise
in any litigation (save for debt collection in the ordinary course of
business) or criminal or arbitration proceedings or any proceedings before
any tribunal and no such proceedings and no prosecutions are pending or
threatened (by or, so far as the Warrantors are aware, against the
Company) and there are no circumstances, so far as the Warrantors are
aware (but without having made specific enquiry), likely to lead thereto
and that there are no circumstances that are likely, so far as the
Warrantors are aware, to give rise to proceedings of any character against
any Director or employee or ex-Director or ex-employee of the Company in
respect of any acts or defaults for which the Company might be vicariously
liable. In particular, but without prejudice, to the generality of the
foregoing the Company is not liable to make any redundancy payment to any
person whether under the Employment Protection (Consolidation) Act 1978 or
otherwise and the Company has complied as respects all its employees with
the Employment Protection (Consolidation) Act 1978 and the Sex
Discrimination Act 1975 and the Race Relations Act 1976.
E(12) There are no unsatisfied judgments or Court Orders against the Company.
No breach of statute etc.
- -------------------------
E(13) The Company has not knowingly done or omitted to do any material act or
thing in contravention or breach of any of the following:
(a) the Exchange Control Act 1947 or the Restrictive Trade Practices
Acts;
<PAGE>
(b) the Companies Acts;
(c) s.765 of the 1988 Act (migration, etc. of companies);
(d) the Health and Safety at Work Act (etc.) 1974.
E(14) No loan made by the Company has been made in breach of the Consumer
Credit Act 1974.
Associations etc.
- -----------------
E(15) The Company is not:
(a) a member of any unincorporated association (other than recognised
trade associations);
(b) a party to any joint venture, consortium or any partnership and does
not have a branch outside England or any permanent establishment or
any substantial assets outside the United Kingdom.
No power of attorney
- --------------------
E(16) No power of attorney or any other authority (express, implied or
ostensible) has been granted by the Company or the Directors in relation
to the Company's affairs which is effective or in force at any time after
the date hereof (other than authority of Directors or employees of the
Company to enter into routine trading contracts in the normal course of
their duties).
Licences
- --------
E(17) All licences, consents and other permissions and approvals necessary for
the carrying on of the Company's business and activities have been duly
obtained from any person, authority or body necessary on a permanent and
unconditional basis and are in full force and effect and any reports,
returns and other information required to be made or given in respect
thereof have been duly made or given and the Company is not restricted by
contract from carrying on any activity in any part of the world.
<PAGE>
Computers
- ---------
E(18) There has been no breach of any service or maintenance contract relevant
to any electronic, magnetic, mechanical or photographic process or
equipment containing any records systems, controls, data or information
concerning the Company whereby any person or body providing services or
maintenance thereunder may have the right to terminate such service or
maintenance contract.
Finder's fee, etc.
- ------------------
E(19) No person, firm or corporation is entitled to receive from the Company
any vendor's fee, finder's fee or brokerage or other commission in
connection with the purchase of the Deferred Shares or the Share Warrants
or other shares in the Company.
Grants
- ------
E(20) The Company has not done or omitted to do or permitted or suffered to be
done anything (including entering into this Agreement) that could result
in any grant subsidy or financial assistance provided by any government or
quasi-government department or agency or any local or other authority
whether under any of the Industrial Acts or Industrial Development Acts or
as a Regional Development Grant or Temporary Employment Subsidy or
otherwise becoming repayable (whether in whole or in part) or being
reduced.
Environmental Legislation
- -------------------------
E(21) To the best of the Warrantors' knowledge (without having made any
specific enquiry) information and belief the Company has complied in all
material respects with all applicable legislation (including regulations,
codes of practice, circulars and guidance notes made thereunder) relating
to environmental matters, including (but without limitation):
(i) waste
(ii) contaminated land
(iii) discharges to land to ground and surface water and to sewers
(iv) emissions to air
(v) noise
(vi) dangerous hazardous or toxic substances or materials
(vii) nuisance
("Environmental Legislation")
E(22) The Warrantors (without having made any specific enquiry) are not aware
of any circumstances as a result of which a liability on the part of the
Company in respect of Environmental Legislation is likely to arise.
PART F:
PROPERTY AND OTHER ASSETS
- -------------------------
The Property
- ------------
F(1) The Property comprises all the land and buildings owned by the Company or
used or occupied by it or in which it has any other interest.
F(2) The Company has a good and marketable title to the Property and has in its
possession or under its control all relevant deeds and documents relative
thereto.
<PAGE>
F(3) The Property may lawfully be used for the purposes for which it is
currently used by the Company and, as far as the Warrantors are aware, is
not subject to any unusual or exceptionally onerous term, covenant,
condition, restriction, right or obligation relating to the use thereof.
F(4) The Company has in respect of the Property complied in all material
respects (as to buildings and use) with the Town and Country Planning
Acts and bye-laws and regulations affecting the same and with all
applicable statutory and bye-law requirements as to fire precautions and
public health and has complied with all conditions and requirements of
all planning permissions granted in respect of the Property of which the
Warrantors are aware and no notice of any breach of any such Acts, bye-
laws, regulations, requirements and planning permission or of any
legislation in respect of town and country planning has been received by
the Company.
F(5)(A)In relation to the Property:-
(a) all covenants conditions and agreements contained in the lease of
the Property referred to in Schedule 4 (whether on the part of the
landlord or the tenant) have been substantially complied with and
there has been no complaint by the landlord or the tenant of breach
of covenant;
(b) no rent reviews are or should be currently under review pursuant to
the provisions of the said lease and there are no current notices
given by the landlord or the tenant relating to a review in the
future.
F(5)(B)The Company is not actually or contingently liable as an original
contracting party to or guarantor of any party to or otherwise
contractually liable in respect of any agreement lease underlease tenancy
conveyance transfer licence or any other deed or document whatsoever
relating to real property or to any estate or interest therein other than
the lease of the Property referred to in Schedule 4.
Other Assets
- ------------
F(6) (a) All fixed and loose plant machinery equipment furniture fittings and
vehicles used by the Company were at the Accounts Date the absolute
property of the Company and the Company has no mortgages pledges
charges liens debentures or other encumbrances secured over any of
its assets and the Company is not under any obligation to create any
mortgage pledge charge lien debenture or other encumbrance
thereover.
(b) The Company has not purchased any of its assets or any goods or
chattels on terms under which the supplier thereof has sought to
retain title thereto until payment by the Company therefor or for
other goods or until satisfaction of any other conditions where such
payment or any part thereof remains outstanding or such conditions
remain unsatisfied in whole or in part.
F(7) Since the Accounts Date the assets of the Company have not been
materially diminished by the negligent reckless wrongful or fraudulent
act of any person.
F(8) The Company's plant, machinery and equipment (including fixed plant and
machinery and equipment) and all vehicles and office furniture and
equipment is in reasonable repair and condition (fair wear and tear
excepted) and in satisfactory working order and none of it is surplus to
the Company's requirements.
F(9) All maintenance contracts are in full force and effect in respect of all
assets of the Company:
(a) which it is normal or prudent to have maintained by outside
specialist contractors; and
<PAGE>
(b) which the Company is obligated to maintain or repair under any leasing
or like agreement.
F(10) All fixed and loose plant, machinery, equipment and vehicles owned or
used by the Company are safe and adequate for the purpose for which they
are used.
F(11) Save for disposals in the ordinary and proper course of business the
Company has not since the Accounts Date parted with the ownership
possession or control of or otherwise ceased to retain any of its assets
or any interest therein.
Intellectual Property
- ---------------------
F(12)(a) Schedule 5 sets out complete and accurate particulars of all
Intellectual Property Rights insofar as they relate to the Company's
products owned or apparently owned in whole or in part by the Company
or used or required by the Company in the course of or for the
purposes of the Company's business and are in full force and effect
and wholly and absolutely vested in and legally and beneficially owned
by the Company.
(b) No licence or other rights has or have been granted or agreed or are
obliged to be granted to any person in respect of any Intellectual
Property Rights and the Company is not obliged to provide know-how or
secret information to any person.
(c) The Intellectual Property Rights may be held and used by the Company
free from and clear of any restrictions or encumbrances and without
licence or consent from any person or any payment by the Company.
(d) The processes now or at any time heretofore employed and the products
now or at any time heretofore manufactured by the Company do not, or
(as the case may be) at the time of being employed or dealt in did not
infringe any patents, trade marks, copyrights, industrial designs or
other Industrial Property Rights.
(e) The Warrantors believe that the Company is the sole beneficial owner
of the products (if any) which it has developed pursuant to the
following agreements. The Warrantors are not aware of any claims by
any of the parties to the following agreements that they either own or
have the right to use any of the Intellectual Property Rights in
respect of the Products which the Company has so developed or any
other products of the Company:
(i) Collaboration Agreement dated 20th June 1994 between the Company
and the other thirteen (13) parties thereto;
(ii) Software Agreement dated 21st November 1991 between Le Centre
Technique Industriel de la Construction Metallique, the Company
and the Steel Construction Institute ("SCI") (as amended);
(iii)Heads of Agreement dated 1st June 1996 by and between the
Company and the other six participants thereto;
(iv) Letter Agreement between the Company and SCI dated 9th January
1991, and
F(13) The Company does not employ or require to employ in relation to its
business and has not heretofore so employed any know-how which either
infringed or infringes or is likely to infringe rights of third parties or
which has been disclosed to it by third parties under licence or other
restrictions.
<PAGE>
Insurance
- ---------
F(14) Details of all insurances effected by the Company are contained in the
Disclosure Letter and such insurances are now in force under existing
valid policies.
F(15) All premiums due on the said policies have been paid all the other
conditions of the said policies have been performed and observed and
nothing has been done or has been omitted to be done whereby any of the
said policies has or may become void or voidable.
F(16) The said policies together with the receipts for the latest premiums
payable in respect thereof are in the possession of the Company.
F(17) No claim is outstanding either by the insurer or the insured under any of
the said policies and no claim against the Company by any third party is
outstanding in respect of any risk covered by any of the policies or by
any policy previously held.
F(18) None of the insurances will be rendered void or voidable as a result of
this Agreement or Completion.]
F(19) The Warrantors are not aware of any circumstances which would or might
entitle the Company to make a claim under any of the said policies or
which would or might be required under any of the said policies to be
notified to the insurers.
Notices
- -------
F(20) There are no outstanding notices served on the Company in respect of any
of its assets including the Property or in respect of its Intellectual
Property Rights.
PART G:
EMPLOYEES
- ---------
Staff
- -----
G(1) The Warrantors have supplied the Purchaser with full and accurate
particulars of all of the Company's employees (which expression in this
paragraph shall include officers and Directors) and of the terms of their
employment or engagement (whether or not the same are reduced to writing)
and true copies of all contracts of employment and service contracts
between such employees and the Company and of all written statements of
terms of employment given by the Company to such employees and particulars
of all remuneration fees and expenses payable to each employee and the
Warrantors have made and will hereafter on request make available for
inspection by the Purchaser all the Company's personnel files relating to
the terms of employment of such employees.
G(2) The Company has not paid or agreed to pay any remuneration (including
bonuses) or other emoluments to any Director or other officer or any
employee other than such as was or will be allowable as a deduction in
computing the profits of the Company for the purposes of corporation tax.
G(3) The Company has operated the PAYE system and accounted to the Inland
Revenue for all tax due from it in respect of emoluments taxable under
PAYE pursuant to s.203 of the 1988 Act and made all deductions and
payments required to be made in respect of National Insurance
contributions (including employer's contributions).
<PAGE>
G(4) The records kept and the returns lodged by the Company in relation to PAYE
and in relation to Statutory Sick Pay are correct and up to date.
G(5) The Company has not appointed any consultants whose consultancy
arrangements with the Company are current.
G(6) No employee is under notice of dismissal or has given notice to leave the
Company's employment.
G(7) No amounts are due to employees as arrears of salary, wages, holiday pay
or other remuneration.
G(8) No employee of the Company is assigned or employed wholly or mainly
outside the United Kingdom.
G(9) No Director, officer or employee or ex-Director, ex-officer or ex-employee
of the Company has made or intimated any claim against the Company for
compensation for loss of office or arising out of the termination of his
office or employment or otherwise howsoever or is entitled to make any
such claim.
Pensions, etc
- -------------
G(10) Schedule 6 sets out complete and accurate particulars of all pension
schemes operated by the Company.
G(11) The Warrantors have supplied the Purchaser with full and complete
particulars of all pension schemes or other pension arrangements in
operation by or in relation to the Company and the Company does not
contribute to any other schemes which will provide its Directors officers
or employees or their respective dependents with pensions annuities or
lump sum payments upon retirement or earlier death or otherwise.
G(12) There are no schemes in operation by or in relation to the Company
whereunder any employee of the Company or any other person is entitled to
a commission or remuneration of any other sort calculated by reference to
the whole or part of the turnover profits or sales of the Company.
G(13) Since the Accounts Date no change has been made in the rate of
remuneration ore emoluments or pension benefits of any Director, officer,
ex-Director or senior executive of the Company (a senior executive being a
person in receipt of remuneration in excess of (Pounds)25,000 per annum)
and no change has been made in the terms of engagement of any Director
officer or senior executive of the Company and no additional Directors
have been appointed.
G(14) No monies other than in respect of remuneration or emoluments for
---
employment are payable to or for the benefit of any Director officer or
senior executive of the Company.
G(15) No ex-gratia pensions or similar payments are made by the Company.
Labour Relations
- ----------------
G(16) (a) For the period of three years up to and including the date hereof
there has not been any industrial action or labour dispute affecting
the Company and to the best of the knowledge information and belief
of the Warrantors there is no trade dispute within the meaning of the
Trade Union and Labour Relations Act 1974 nor any other facts or
circumstances which might give rise to such industrial action or
dispute.
(b) The Company is not a party to any collective agreement or union
membership agreement as defined in the Trade Union and Labour
Relations Act 1974 nor is the Company party to an agreed procedure
relating to redundancy as defined in the Employment Protection
(Consolidation) Act 1978 or proceedings before any court or tribunal
under or by virtue
<PAGE>
of the provisions of that Act and to the best of the knowledge
information and belief of the Warrantors there are no facts or
circumstances or events which might give rise to the Company becoming
a party to such agreement or becoming involved in any such dispute or
proceedings.
<PAGE>
SCHEDULE 3
----------
(Form of Deed of Indemnity referred to in Clause [4.3.2)]
---------------------------------------------------------
THIS DEED OF INDEMNITY made the 3rd day of December 1996
BETWEEN:
(1) WILFRED WRIGHT and SIMONE CLARE WRIGHT both of Booilushag House, Isle of
Man as trustees of the Rebecca Sumner Park Trust (hereinafter called the
"Trustees";
(2) CHRISTOPHER BRIAN GROVES of Amberley House, France Lane, Hawkesbury Upton,
Badminton, Gloucestershire GL9 1AS (hereinafter called "Mr. Groves");
(3) WILLIAM STEPHEN PARK of Fox Lodge, The Green, Biddestone, Wiltshire SN14
7DG (hereinafter called "Mr Park");
(4) QSE (BRISTOL) LIMITED a company incorporated and existing under the laws of
England (registered no. 2168740) whose registered office is at Broad
Street, Chipping Sodbury, Bristol BS17 6AD (hereinafter called "the
Company");
(5) RESEARCH ENGINEERS (EUROPE) LIMITED a company incorporated and existing
under the laws of England (registered no. 2335650) whose registered office
is at 115 Kingston Road, Leatherhead, Surrey KT2 7SO (hereinafter called
the "Purchaser")
WHEREAS this Deed is entered into pursuant to the provisions of an
Agreement of even date herewith and made between (1) the Trustees (2) Mr.
Groves (3) Mr. Park (4) Rebecca Sumner Park and (5) the Purchaser whereby
the Purchaser has agreed to acquire the entire issued share capital of the
Company (hereinafter called "the Agreement").
NOW THIS DEED WITNESSETH as follows:-
DEFINITIONS AND INTERPRETATION
- ------------------------------
1. In this Deed:
1.1 Terms and expressions defined in the Agreement shall, unless
inconsistent with the provisions hereof, have the same meaning
whenever used herein.
1.2 The following expressions bear the following meanings:-
<TABLE>
<C> <S>
"Covenantors" means the Trustees, Mr. Groves and Mr. Park;
"Claim" includes any notice, demand, assessment, letter or other
document issued or action taken by the Inland Revenue or
any other statutory, governmental, state, provincial or
local governmental authority, body or official whatsoever
(whether of the United Kingdom or elsewhere in the world)
indicating that the Purchaser or the Company is or may be
placed or sought to be placed under a liability to make a
payment or deprived of or denied any relief, allowance,
credit or repayment;
"Profits" include income, profits or gains (including capital gains)
and all references to profits earned, accrued or received
include profits deemed to have been treated as earned,
accrued or received for Taxation purposes;
</TABLE>
<PAGE>
<TABLE>
<C> <S>
"Transaction" includes any transaction, act, event or omission of
whatever nature.
</TABLE>
1.3 Clause headings are used for ease of reference only and shall not
affect the construction hereof.
INDEMNITY
- ---------
2.1 Subject as hereinafter provided, the Covenantors hereby jointly and
severally agree and covenant with the Purchaser to indemnify and keep
indemnified the Purchaser:-
2.1.1 against any depletion or reduction or diminution in the value of the
---
Company's assets or increase in the Company's liabilities occurring
as a result or in consequence of any Claim for Taxation which has
been made or may hereafter be made:-
(a) in respect of or arising from any Transaction effected or
deemed to have been effected on or before Completion; or
(b) by reference to any Profits earned accrued or received on or
before Completion; and
2.1.2 without prejudice to the generality of the foregoing against any
such depletion, reduction or increase as aforesaid as a result of
any inheritance tax which:-
(a) is at Completion a charge on any of the shares or assets of the
Company or gives rise to a power to sell mortgage or charge any
of the shares or assets of the Company; or
(b) after Completion becomes a charge on or gives rise to a power
to sell, mortgage or charge any of the shares or assets of the
Company being a liability in respect of inheritance tax payable
as a result of the death of any person within seven (7) years
after a transfer of value if a charge on or power to sell
mortgage or charge any such shares or assets existed at
Completion or would (if the death had occurred immediately
before Completion and the inheritance tax payable on such a
transfer had not already been paid) have existed at Completion;
and
2.1.3 against all costs and expenses reasonably incurred or payable by the
Purchaser and/or the Company in connection with or as a consequence
of any matter for which a successful claim is made by the Purchaser
under this Deed.
2.2 In determining for the purposes of this Deed whether a charge on or power
to sell mortgage or charge any of the shares or assets of the Company
exists at any time the fact that any tax is not yet payable or may be paid
by instalments shall be disregarded and such tax shall be treated as
becoming due and a charge or power to sell, mortgage or charge as arising
on the date of the transfer of value or other date or event on or in
respect of which it becomes payable or arises and the provisions of s.213
of the Inheritance Act 1984 shall not apply thereto.
2.3 Where as a result of a Claim the Company suffers a loss of or reduction in
the amount of any relief, allowance or credit or has a right to the
repayment of Taxation nullified or cancelled or set off against a Taxation
liability in whole or in part which in any of such cases but for such Claim
would have been available then the Company shall be treated as having
incurred a corresponding depletion in or reduction in the value of its
assets equal to the amount of Taxation (assuming Taxation to be otherwise
payable and utilising rates of Taxation current at the date of such loss,
reduction or set off) which use of the relevant relief, allowance or credit
would have saved or to the amount of the repayment as appropriate as a
result of a Claim for Taxation made in circumstances falling within clause
2.1.1.
<PAGE>
3.1 The indemnity in Clause 2.1 shall not apply to any liability or claim:-
3.1.1 arising out the Company carrying on its trade or business in the
ordinary course since the Accounts Date;
3.1.2 to the extent that such liability or claim would not have arisen but
for a cessation of trading or a change in the nature or conduct of
trade by the Company after Completion;
3.1.3 to the extent that such liability or claim arises solely as a result
of the Purchaser's or the Company's failure to notify the
Covenantors of a claim under this Deed and/or after due warning to
act in accordance with the reasonable instructions of the
Covenantors in the conduct of any action or other matter (as
referred to in Clause 5 hereof) in respect of any such liability or
claim provided that the Covenantors shall have indemnified and
secured the Purchaser and the Company to their reasonable
satisfaction against any losses, costs, damages and expenses which
may thereby be incurred as referred to in Clause 5;
3.1.4 to the extent that recovery has been made by the Purchaser under the
Warranties in respect of the same liability or claim;
3.1.5 to the extent that such liability or claim is excluded or limited
pursuant to the provisions of Clauses 5.4 to 5.14 (inclusive) of the
Agreement which provisions (substituting reference to the Warrantors
with reference to the Covenantors) are hereby deemed to be
incorporated in this Deed as if the same were set out in extenso
herein.
3.2 Any payment made by the Covenantors in whole or partial satisfaction of a
claim hereunder shall be treated as a pro rata reduction of the
Consideration.
4. In the event that the Inland Revenue seek to charge to tax any sum paid to
the Purchaser or the Company hereunder as a result of the indemnity or
other obligations contained herein then the amount so payable shall be
grossed up by such amount as will ensure that after payment of the tax so
charged there shall be left a sum equal to the amount that would otherwise
be payable under such indemnity or obligation.
HANDLING OF CLAIMS
- ------------------
5. In the event of the Purchaser or the Company becoming aware of any Claim
which could give rise to a liability under this Deed, the Purchaser shall
procure that notice thereof is given to the Covenantors concerned in manner
hereinafter provided as soon as reasonably possible and as regards any such
Claim the Purchaser shall or shall procure that the Company shall at the
request of the Covenantors concerned take such action and give such
information and assistance as they may reasonably request to avoid,
dispute, resist, appeal, compromise or defend the Claim and any
adjudication in respect thereof but subject to the Purchaser and the
Company being indemnified and secured to their reasonable satisfaction by
the Covenantors against all losses (including additional Taxation), costs,
damages and expenses which may thereby be incurred.
PAYMENT FOLLOWING CLAIMS
- ------------------------
6.1 If any payment is required pursuant to this Deed, the Covenantors shall
make the payment to the Purchaser not later than the tenth business day
after written notice of demand is made for it hereunder, or, if relevant,
such later date as is specified below:-
6.1.1 if the payment relates to a liability to make payment or an
increased payment of Taxation (including, without limitation, any
case where a payment under this Deed itself results in further
Taxation becoming due), the date which is the fifth business day
prior to the date
<PAGE>
on which the Taxation in question is payable to the authority or
official or person properly demanding the same;
6.1.2 in any case not falling within sub-clause 6.1.1, the Covenantors
shall pay the sum due not later than the tenth business day as
aforesaid unless they shall disagree with the amount specified in
the said written notice of demand, in which event the dispute as to
such amount shall be determined by a firm of chartered accountants
agreed upon or appointed pursuant to the provisions of Clause 8, and
the Covenantors shall pay the amount due as so determined not later
than the fifth business day after the date on which the said firm of
chartered accountants make their determination.
6.2 Any sums not paid by the Covenantors on the requisite date specified in
---------
Clause 5.1 above for payment of the same ("the due date") shall bear
interest (which shall accrue from day to day after as well as before any
judgement for the same) at the rate of 2 per cent per annum over the base
rate of Barclays Bank PLC from the due date to and including the day of
actual payment of such sums.
7. Over-provisions/Corresponding Savings
-------------------------------------
7.1 If the auditors for the time being of the Company shall certify or (if the
Covenantors are not satisfied with such certificate) if a firm of chartered
accountants agreed upon or appointed pursuant to the provisions of Clause 8
shall certify that any claim for Taxation, which has resulted in a payment
having been made or having become due from the Covenantors under this Deed,
will give rise to a relief for the Company which would not otherwise have
arisen, then, as and when the liability of the Company to make an actual
payment in respect of Taxation is reduced, by reason of that relief, and
after taking account of the effect of all other reliefs that are or become
available to the Company as a consequence of the claim (including any
relief derived from subsequent accounting periods), from the amount which
that liability would have been but for the availability of that relief, an
amount equal to the amount by which that liability is so reduced shall be
dealt with in accordance with Clause 7.2.
7.2 Where it is provided under Clause 7.1 that any amount (the "Relevant
Amount") is to be dealt with in accordance with this Clause:-
7.2.1 the Relevant Account shall first be set-off against any payment then
due from the Covenantors under this Deed;
7.2.2 to the extent that there is an excess, a refund shall be made to the
Covenantors of any previous payment or payments made by them under
this Deed and not previously refunded under this Clause up to the
amount of such excess; and
7.2.3 to the extent that the excess referred to in sub-clause 7.2.2 is not
exhausted under that sub-clause, the remainder of that excess shall
be carried forward and set off against any future payments which
become due from the Covenantors under this Deed.
7.3 Where any such certification as is mentioned in Clause 7.1 has been made,
the Covenantors or the Purchaser may request the auditors for the time
being of the Company or other firm of chartered accountants therein
referred to to review such certification in the light of all relevant
circumstances, including any facts which have become known only since such
certification, and to certify whether such certification remains correct or
whether, in the light of those circumstances, the amount that was the
subject of such certification should be amended.
7.4 If the auditors or other firm of chartered accountants therein referred to
certify under Clause 7.3 that an amount previously certified should be
amended, that amended amount shall be substituted for the purposes of
Clause 7.2 as the Relevant Amount in respect of the certification in
question in place of the amount originally certified, and such adjusting
payment (if any) as may be required
<PAGE>
by virtue of that substitution shall be made as soon as practicable by or
(as the case may be) to the Covenantors.
8. Disputes
--------
8.1 In the event of any dispute as to the liability hereunder of the
Covenantors, or if the Covenantors are not satisfied with any certificate
which the auditors for the time being of the Company may give pursuant to
Clause 7.1, the matter shall be determined by a firm of chartered
accountants to be agreed between the Purchaser on the one hand and the
Covenantors on the other hand or failing agreement to be nominated on the
application of either the Covenantors or the Purchaser by the President for
the time being of the Institute of Chartered Accountants in England and
Wales.
8.2 The said firm shall be deemed to act as expert and not as arbitrator in any
determination made by it hereunder and(subject to the provisions of Clauses
7.3 and 7.4) in the absence of manifest error its determination shall be
conclusive and binding on all concerned. The proper and reasonable costs
of each party incurred in respect of any reference hereunder and the proper
charges and disbursements of the said firm shall be paid and borne on each
occasion by such of the parties concerned and in such proportions as the
parties may agree or failing agreement as the said firm may in its absolute
discretion determine to be fair and reasonable (or, failing any such
determination, equally).
General
- -------
9. The liability of the Covenantors under this Deed is joint and several and
this Deed is binding on the Covenantors and their successors and personal
representatives, as the case may be.
10. None of the parties to this Deed shall be entitled to assign his or its
respective rights or obligations under this Deed without the previous
written consent of the other parties hereto.
11. The address for service of notices under this Deed is, in the case of each
of the Covenantors, the address stated against its name above or as may be
subsequently notified in writing to the Purchaser and in the case of the
Company or the Purchaser its registered office for the time being.
12. Notice shall be given by letter or by telex, telemessage, fax or cable.
Each letter containing notice will be sent by first class registered post
addressed to the other party at the address for service and will be deemed
to have been received on the second day (not including Sundays or public
bank holidays) after despatch. Notice other than by letter will be deemed
to have been received on transmission.
13. This Deed may be executed in one or more counterparts which shall together
form one and the same instrument.
IN WITNESS whereof this Deed has been entered into the day and year first above
written
<PAGE>
SCHEDULE 4
----------
Details relating to the Property
--------------------------------
Lease dated 12th July 1989 relating to Cambrian House,
Number 51, Broad Street, Chipping Sodbury, Bristol
between Timothy John Groves as Landlord and the Company as the Tenant
<PAGE>
SCHEDULE 5
----------
The Intellectual Property Rights in the products detailed on the attached page
<PAGE>
SCHEDULE 6
----------
Provisions in relation to pensions
- ----------------------------------
(See Disclosure Letter)
<PAGE>
SCHEDULE 7
----------
THE PRODUCTS REFERRED TO IN CLAUSE 7
------------------------------------
QSE graphics interface environment
QSE space for windows
Steel Design Modules
QSE simple connectors
QSE Design Desk
QSE RC
EC3 Member design
CDS - Multi Engineering
CTICM PEP
QSE Safe for foundations
<PAGE>
SIGNED by the said )
WILFRED WRIGHT )
in the presence of: )
SIGNED by the said )
SIMONE CLARE WRIGHT )
in the presence of: )
SIGNED by the said )
CHRISTOPHER BRIAN GROVES )
in the presence of: )
SIGNED by the said )
WILLIAM STEPHEN PARK )
in the presence of: )
SIGNED by STEPHEN OWEN )
director for and on behalf of )
RESEARCH ENGINEERS )
(EUROPE) )LIMITED )
in the presence of: )