EXHIBIT 2.1
DATED 1st September 2004
(1) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
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(2) MAILKEY CORPORATION
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ACQUISITION OF THE ENTIRE ISSUED
SHARE CAPITAL OF ▇▇▇▇▇▇-▇▇▇▇ LIMITED
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TEL: ▇▇▇ ▇▇▇▇ ▇▇▇▇
FAX: ▇▇▇ ▇▇▇▇ ▇▇▇▇
AGREEMENT
DATED 1st September 2004
PARTIES:
(1) THE PERSONS whose names and addresses are set out in column 1 of
Schedule I ("THE VENDORS"); and
(2) MAILKEY CORPORATION a Nevada registered Corporation publicly listed in
the United States with stock ticker symbol MAKY.OB ("THE PURCHASER").
BACKGROUND:
(A) MilsonGray Limited ("The Company") is a private limited company
incorporated in England and Wales on 5th July 2002 under the Companies
Acts 1985 - 1989 and has an authorised share capital of (pound)26,000
divided into 26,000 ordinary shares of (pound)1 each of which 25,100
ordinary shares of (pound)1 each are issued fully paid or credited as
fully paid.
(B) The Vendors are the legal and beneficial owners of the whole of the
issued share capital of the Company.
(C) The persons named in Schedule II are the only directors, secretary and
shareholders of the Company.
(D) The Vendors wish to sell and the Purchaser wishes to buy the whole of
the issued share capital of the Company on the terms and conditions set
out in this Agreement.
EFFECT OF THIS AGREEMENT:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, where the context allows, the following specific
words and expressions have the following meanings:-
"ACCOUNTS" means the accounted financial statements of the Company for
the accounting reference period ended on the Accounts Date in the
approved form comprising in each case a balance sheet at the Accounts
Date, profit and loss account, cash flow statement, notes, directors'
and accountant' reports and any other documents annexed to them.
"ACCOUNTS DATE" means 31st July 2003.
"APPROVED FORM" means in the form approved by the Vendors and the
Purchaser and for the purpose of identification initialled by or on
behalf of them or in the form executed by the relevant parties at the
same time as this Agreement.
"BUSINESS DAY" means a day which in England is neither a Saturday nor
Sunday, nor a bank or other public holiday.
"CM SERVICE AGREEMENT" means the service agreement to be entered into
between ▇▇▇▇▇ ▇▇▇▇▇▇ and the Purchaser in the approved form.
"COMPLETION" means performance of the obligations assumed by the parties
respectively under Clause 4 (Completion).
"COMPLETION DATE" means the date of Completion.
"CONDITIONS" means the conditions to Completion set out in Clause 4.1.
"CONFIDENTIAL INFORMATION" means confidential information of a
technical, trade or other character concerning the Company or concerning
any third party to the extent the third party has had any dealings with
the Company including (but not limited to) information concerning the
business, finances, trade connections, clients and prospective clients,
services, products, processes, plans and inventions of the Company,
Intellectual Property (whether owned or licensed by or to the Company,
lists of suppliers and third parties with whom the Company has had or
proposed to have any dealings, reports, notes, memoranda and all other
documentary records pertaining to the Company.
"CONSIDERATION MONIES" means the cash sum of (pound)70,000
"CONSIDERATION SHARES" means 400,000 shares of common stock, $.001 par
value per share, of the Purchaser.
"DISCLOSURE LETTER" means the letter of the same date as this Agreement
from the Vendors to the Purchaser disclosing facts for the purpose of
Clause 5.1.
"DUE DILIGENCE QUESTIONNAIRES" means the questionnaire sent by the
Purchaser to ▇▇▇▇▇ ▇▇▇▇▇▇ on 8th July 2004 and subsequent e-mails
containing further due diligence enquiries sent by ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to
▇▇▇▇▇ ▇▇▇▇▇▇.
"GROUP" means, in relation to a company, that company and any company
which is from time to time a holding company of that company or a
subsidiary of that company or of such holding company.
"IHTA" means Inheritance Tax Act 1984.
"INCLUDING" means including but not limited to, and "INCLUDE" and
"INCLUDES" shall be construed accordingly.
"INTELLECTUAL PROPERTY" means the Licence and all patents, trade marks
and service marks, registered designs, design rights and copyright
(including, without limitation, rental and lending rights), rights in
performances, moral rights, rights in databases and other protectable
lists of information, rights in confidential information, trade secrets,
inventions and know-how, trade and business names, domain names, get ups
and logos and other similar industrial or commercial rights (including
all extensions,
revivals and renewals, where relevant) in each case whether registered
or unregistered and applications for any of them and the goodwill
attaching to any of them and any rights or forms of protection of a
similar nature and having equivalent or similar effect to any of them
which may subsist anywhere in the world.
"INTELLECTUAL PROPERTY AGREEMENTS" means all written licences, and
summaries of unwritten licences, of Intellectual Property either owned
by the Company or not owned by the Company but used in its business or
licensed to third parties by the Company and annexed to the Disclosure
Letter.
"LICENCE" means the exclusive licence granted to the Company from SSSI
to resell the software Parent Interactive in Europe and Asia/Pacific
"LOSSES" means actions, proceedings, losses, damages, liabilities,
claims, costs and expenses including fines, penalties, clean-up costs,
legal and other professional fees and any VAT payable in relation to any
such matter, circumstance or item.
"THE MANAGEMENT ACCOUNTS" means the management accounts of the Company
for the period from the Accounts Date to the Management Accounts Date in
the approved form.
"THE MANAGEMENT ACCOUNTS DATE" means 30th July 2004.
"THE NET ASSETS" means in relation to the Company the aggregate of all
its assets (both fixed and current) less the aggregate of all its
liabilities as at the relevant date.
"PP SERVICE AGREEMENT" means the service agreement to be entered into
between ▇▇▇▇ ▇▇▇▇▇▇ and the Purchaser in the approved form.
"PROPERTY" means the property described in Schedule III.
"PURCHASER'S SOLICITORS" means ▇▇▇▇▇▇▇▇▇▇ Solicitors of ▇-▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇.
"SHARES" means all the issued shares in the Company.
"SERVICE AGREEMENT VENDORS" means ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇.
"TAXATION" means all forms of taxation whether of the United Kingdom or
elsewhere including (without limitation) corporation tax (and any amount
assessed or assessable, or payable, as if it were corporation tax),
advance corporation tax, income tax, capital gains tax, development land
tax, value added tax, customs and other import duty, stamp duty, stamp
duty reserve tax, capital duty, capital transfer tax, inheritance tax,
pay as you earn and national insurance contributions, sums required by
law to be deducted in respect of or on account of any such taxation and
all penalties, fines, surcharges and interest relating to any such
taxation or to any failure or delay in reporting any matter or making
any return required to be reported or made (or any failure to do so
accurately and completely) to any authority responsible for the
administration of any taxation.
"TAX UNDERTAKING" means the deed in the approved form and attached at
Schedule VIII, granted by the Vendors to the Purchaser at Completion.
"TCGA" means the Taxation of Chargeable Gains Act 1992.
"TAXES ACT" means the Income and Corporation Taxes Act 1988.
"UK GAAP" means generally accepted and adopted accounting principles in
the United Kingdom.
"VAT" means value added tax.
"VATA" means the Value Added Tax Act 1994.
"WARRANTIES" means the representations, warranties and undertakings set
out in Schedule IV.
"WARRANTORS" means ▇▇▇▇▇ ▇▇▇▇▇▇
1.2 In this Agreement, where the context admits -
1.2.1 words implying one gender shall be treated as implying any
gender;
1.2.2 words importing the singular include the plural and VICE VERSA;
1.2.3 references to any statutory provision include any pre-enactment,
modification, re-enactment or extension of it for the time being
in force and any statutory instruments, orders or regulations
from time to time made under it, and any reference to "law"
includes any legislation, rules, regulations or decisions which
now have or which have had the force of law in any jurisdiction
PROVIDED ALWAYS that the provisions of this sub-clause shall in
no circumstances extend any liability beyond that which would
exist as at today's date in respect of existing law;
1.2.4 the expression "person" includes any body of persons corporate
or unincorporated;
1.2.5 the headings to the Clauses do not affect their interpretation;
1.2.6 references to this Agreement include all the Background and
Schedules to it, references to Clauses are references to clauses
of this Agreement and references to the parties are references
to the parties to this Agreement;
1.2.7 unless otherwise expressly provided in this Agreement, a person
shall be deemed to be "connected with" another person if that
first person is either (a) connected with the second person
within the meaning of Section 839 of the Taxes Act or within the
meaning of Section 249 of the Insolvency Act
1986 or (b) is an associate of the second person within the
meaning of Section 435 of the Insolvency Act 1986;
1.2.8 words and expression defined in the Companies Act 1985 bear the
same meanings in this Agreement unless the context otherwise
requires;
1.2.9 any obligations imposed by or resulting from the execution of
this Agreement (including any obligation resulting from any of
the Warranties being untrue or misleading or being breached and
any obligation to make a payment pursuant to Clause 7
(Indemnities)) which is undertaken by more than one person shall
be a several obligation of each of the persons who has
undertaken it, and in addition, if and for so long as such
obligation can in law constitute a joint obligation of any of
the Vendors, (unless otherwise expressly provided in this
Agreement) it shall also be a joint obligation of them;
1.2.10 any statement in this Agreement which is qualified as being to
the best of the knowledge, information and belief of a person or
as being so far as a person is aware, or any similar expression,
shall be deemed to include an additional statement that it has
been made after full enquiry including but not limited to
enquiry of the other directors of the Company;
1.2.11 "fairly disclosed" means disclosed in such a manner as to enable
a reasonable purchaser to make an informed and proper assessment
of the matter concerned.
2. SALE AND PURCHASE
2.1 Subject to the terms of this Agreement the Vendors shall sell with full
title guarantee, and the Purchaser shall buy with the benefit of such a
guarantee, the Shares free from all claims, charges, liens, encumbrances
and equities and together with all rights attached or accruing to them
and together with all dividends and distributions in respect of any
period ending after the date of this Agreement or declared, paid or made
after that date.
3. CONSIDERATION
3.1 The consideration for the sale of the Shares shall be the aggregate of:
(i) the Consideration Shares; which shall be allotted to the persons and
in the proportions as set out in Schedule I; and
(ii) the Consideration Monies which shall be paid to the persons and in
the proportion set out in Schedule I.
4. COMPLETION AND CONDITIONS FOR COMPLETION
4.1 Completion is conditional upon:-
4.1.1 the Vendors procuring an extension to the Licence of no less
than 5 years and otherwise on terms satisfactory to the
Purchaser;
4.1.2 the Purchaser being in its absolute discretion satisfied with
all and any financial and legal due diligence which it
undertakes on the Company;
4.1.3 the Vendors obtaining the discharge of the Debenture dated 27
November 2003 registered in favour of The Governor and Company
of the Bank of Scotland;
4.1.4 the Purchaser supplying funds to clear items 4.1.1 and 4.1.3;
4.1.5 the CM Service Agreement and the PP Service Agreement are signed
by the relevant Vendors
4.2 The Vendors shall use their best endeavours to ensure the satisfaction
of each of the Conditions set out in Clauses 4.1.1 to 4.1.3 and in
Clause 4.1.5 and the Purchaser shall use its best endeavours to ensure
the satisfaction of the Condition set out in Clause 4.1.4.
4.3 If the Conditions are not satisfied on or before 1st October 2004 or
such later date as the Purchaser shall determine, this Agreement shall
terminate and the Purchaser shall not have any further rights or
obligations under it.
4.4 The Purchaser may in its absolute discretion waive (in whole or in part)
the Conditions.
4.5 After execution of this agreement, and upon satisfaction of the
Conditions (or waiver of the Conditions by the Purchaser), the sale and
purchase of the Shares shall be completed immediately at the offices of
the Purchaser's Solicitors or such other place as the parties agree.
4.6 At Completion, the Vendors and the Purchaser will comply with Schedule
VII.
4.7 The Purchaser will not be obliged to complete the purchase of any of the
Shares unless the purchase of all the Shares is completed
simultaneously.
5. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
5.1 The Warrantor will represent, warrant and undertake to the Purchaser in
the terms set out in Schedule IV (subject to the matters fully and
fairly disclosed in the Disclosure Letter) and agree and acknowledge
that the Purchaser is entering into this Agreement
in reliance on the Warranties. Each of the Warranties is separate and
independent; no Warranty is limited by reference to any other Warranty
or part of this Agreement.
5.2 The Warranties shall not in any respect be extinguished or affected by
Completion.
5.3 The rights and remedies of the Purchaser in respect of the Warranties
shall not be affected by any investigation made by or on behalf of the
Purchaser into the affairs of the Company.
5.4 Any claim by the Purchaser in respect of the Warranties shall be limited
as provided for in Schedule V.
5.5 The Purchaser shall as soon as reasonably practicable inform the Vendors
in writing of any event which comes to the notice of the Purchaser
whereby it appears to the Purchaser that the Warrantors are or may
become liable to make any payment under the Warranties, but failure by
the Purchaser to comply with this provision shall not affect the
Warrantors' obligations under Clause 5.
5.6 Without prejudice to the Purchaser's right to seek redress or recover
damages upon any basis from time to time available to it, the Warrantors
may be required to pay to the Purchaser an amount equal to (at the
Purchaser's option) the amount by which the value of the assets or
income of the Company is diminished or the liabilities (actual or
contingent) or expenditure of the Company is increased which arises as a
result of the actual circumstances of the Company and/or any of its
affairs being otherwise than as warranted in Schedule IV.
5.7 The Warrantors undertake to the Purchaser that each will waive all
rights each may have in respect of any misrepresentation, inaccuracy or
omission in or from information supplied to it by the Company, or its
employees in connection with the Warranties, the Disclosure Letter or
taxation and each undertakes not to make any claims against any such
person in respect of any such misrepresentation, inaccuracy or omission.
5.8 Nothing in this Agreement shall exclude liability for fraud or
dishonesty.
6. VENDORS' RESTRICTIONS
6.1 For the purposes of this Clause 6-
"COMPETING BUSINESS" means any business which competes directly or
indirectly with any part of the business of Purchaser, the Company or
any of their respective subsidiaries, partners or affiliates, or which
provides services or products to any other business or person which
competes directly or indirectly with any part of the business of
Purchaser, the Company or any of their respective subsidiaries, partners
or affiliates.
"CONFIDENTIAL INFORMATION" means confidential information of a
technical, trade or other character concerning the Purchaser, the
Company or any of their respective subsidiaries, partners or affiliates
or concerning any third party to the extent the third party has had any
dealings with the Purchaser, the Company or any of their respective
subsidiaries, partners or affiliates including (but not limited to)
information concerning the business, finances, trade connections,
clients and prospective clients, services, products, processes, plans
and inventions of Purchaser, the Company or any of their
respective subsidiaries, partners or affiliates, Intellectual Property
(whether owned or licensed by or to the Purchaser, the Company or any of
their respective subsidiaries, partners or affiliates, lists of
suppliers and third parties with whom the Purchaser, the Company or any
of their respective subsidiaries, partners or affiliates has had or
proposed to have any dealings, reports, notes, memoranda and all other
documentary records pertaining to the Purchaser, the Company or any of
their respective subsidiaries, partners or affiliates.
"RESTRICTED AFFILIATE/ASSOCIATE" means any person, firm or company with
which the Purchaser, the Company or any of their respective
subsidiaries, partners or affiliates has at Completion or has had at any
time in the 12 months before Completion or at any time after Completion
had or has any arrangement for the cross-referral of services or any
similar arrangement, in each case whether in the United Kingdom or
elsewhere/specific list.
"RESTRICTED CLIENT" means any person, firm or company -
(a) which is at Completion or has at any time in the preceding 12
months before Completion or at any time after Completion been a
customer or client of the Purchaser, the Company or any of their
respective subsidiaries, partners or affiliates ;
(b) to whom the Purchaser, the Company or any of their respective
subsidiaries, partners or affiliates has made any bid or tender
which at Completion or at any time after Completion remains
outstanding;
(c) who has had any dealing with the Purchaser, the Company or any
of their respective subsidiaries, partners or affiliates in the
course of its business at any time during the 12 months before
Completion or at any time after Completion;
(d) with whom the Purchaser, the Company or any of their respective
subsidiaries, partners or affiliates or any of their respective
officers or employees were actively seeking business at any time
during the 12 months before Completion or at any time after
Completion
and in each case with whom the relevant Vendor has been associated in
any way in the course of his involvement with the Purchaser, the Company
or any of their respective subsidiaries, partners or affiliates at any
time during the 12 months before Completion or at any time after
Completion.
"RESTRICTED EMPLOYEE" means any person who is at Completion or has at
any time during the 12 months before Completion or at any time after
Completion been, a director, manager, senior or skilled employee of or
consultant to the Purchaser, the Company or any of their respective
subsidiaries, partners or affiliates and with whom the relevant Vendor
has had a level of contact in the course of his involvement with
the Purchaser, the Company or any of their respective subsidiaries,
partners or affiliates.
6.2 Each of the Service Agreement Vendors severally undertakes to and
covenants with the Company and the Purchaser, and as a separate covenant
to in respect of the business carried on by the Purchaser, the Company
or any of their respective subsidiaries, partners or affiliates , that,
subject always to Clause 6.3 -
6.2.1 CONFIDENTIALITY
he shall not at any time -
(a) unless required to do so by law or any regulatory body,
disclose to any person any Confidential Information;
(b) use to the detriment of the Purchaser, the Company or
any of their respective subsidiaries, partners or
affiliates any Confidential Information
Provided that none of the restrictions contained in Clause 6.2.1
shall apply in respect of any Confidential Information which
enters the public domain in the same form, unless it does so by
reason of its unauthorised publication or the unauthorised act,
omission, default or delay of the relevant Vendor or any lack of
good faith towards the Purchaser on the part of the relevant
Vendor (or any person connected with the relevant Vendor);
6.2.2 COMPETITION
he shall not at any time during the period of three years
following the Completion Date carry on, be in any way
interested, engaged or concerned in any Competing Business in
the United Kingdom or in any other territory in which the
Purchaser, the Company or any of their respective subsidiaries,
partners or affiliates conducts or has conducted business;
6.2.3 DEALING WITH RESTRICTED CLIENTS
he shall not at any time during the period of three years
following the Completion Date in connection with any Competing
Business, deal with, work for or provide products or services to
any Restricted Client;
6.2.4 SOLICITATION OF RESTRICTED CLIENTS
he shall not at any time during the period of three years
following the Completion Date, in connection with any Competing
Business, canvass, solicit, approach or entice or cause to be
canvassed, solicited, approached or enticed the custom or
business of any Restricted Client;
6.2.5 RESTRICTED AFFILIATE/ASSOCIATE
he shall not at any time during the period of three years
following the Completion Date for the purposes of a Competing
Business, canvass, solicit or approach or cause to be canvassed,
solicited or approached the custom of or deal or contact with
any Restricted Affiliate/Associate;
6.2.6 EMPLOYEES
he shall not at any time during the period of three years
following the Completion Date -
(a) employ or engage (or attempt to employ or engage) or
offer any alternative employment or engagement to any
Restricted Employee; or
(b) persuade (or attempt to persuade) any Restricted
Employee to enter any alternative employment or
engagement or to leave the employment or service of the
Purchaser, the Company or any of their respective
subsidiaries, partners or affiliates; or
(c) negotiate or arrange the employment or engagement of any
Restricted Employee by any other person, firm or company
in each case whether or not such Restricted Employee would
commit any breach of his/her contract of employment by reason of
leaving the employment or service of the Purchaser, the Company
or any of their respective subsidiaries, partners or affiliates.
6.3 Each of the restrictions contained in Clause 6.2 shall apply to each
Vendor if he carries on the relevant activities either directly or
indirectly, or alone or jointly with or through another, or (without
prejudice to the generality of the foregoing) as manager of, adviser or
consultant to or agent for any other person, or as a shareholder,
employee, employer or director of a company, provided that they shall
not apply where and to the extent that the activity consists solely of
the holding of securities listed on a recognised stock exchange or dealt
in on a public securities market which does not exceed one per cent in
nominal value of the securities of that class.
6.4 Each of the Vendors -
6.4.1 expressly agrees and declares that in all the circumstances of
this Agreement the restrictions and provisions contained in this
Clause 6 are reasonable and necessary for the protection of the
Purchaser, the Company or any of their respective subsidiaries,
partners or affiliates and their respective business and for the
protection also of the Purchaser's investment in acquiring the
Company pursuant to this Agreement;
6.4.2 acknowledges that, having regard to those circumstances, such
restrictions and provisions do not work harshly on him;
6.4.3 acknowledges that, in the event that any of the covenants
contained in this Clause 6 are breached by him, damages are
likely to be an inadequate remedy and that (without prejudice to
any other remedies or rights which the Company, or the Purchaser
may have in respect of such breach) equitable reliefs, including
injunctions and specific performance, are available to the
Purchaser, the Company or any of their respective subsidiaries,
partners or affiliates for the enforcement of such covenants;
6.4.4 acknowledges that the Purchaser has entered into this Agreement
in full reliance upon the extent and effectiveness of such
restrictions and the willingness of the Vendors to be bound by
them.
6.5 Without prejudice to Clause 6.4, the parties agree that if any or all of
the restrictions and provisions in this Clause 6 shall be judged by a
competent court or tribunal to go beyond what is reasonable in all the
circumstances for the purposes outlined in Clause 6.4.1, but would be
valid if some part or parts were deleted or varied or if in any
particular restriction the area of operation or the period of
application were reduced or a lesser period were substituted, then such
part shall be deemed to be deleted or varied, or the area of operation
or the period of application shall be deemed to be reduced, or such
lesser period shall be deemed to be substituted, as the case may be.
6.6 Notwithstanding anything to the contrary in this Clause 6, ▇▇▇▇▇ ▇▇▇▇▇▇
shall not be prevented from carrying out his duties to the Purchaser
under the CM Service Agreement, ▇▇▇▇ ▇▇▇▇▇▇ shall not be prevented from
carrying out his duties to the Purchaser under the PP Service Agreement
and ▇▇▇ ▇▇▇▇▇▇▇ will not be prevented from carrying out his duties to
his personal company ▇▇▇▇▇▇▇ Accountants.
6A. ADDITIONAL AGREEMENTS
6A.1 From the date hereof through the earlier of (i) the Completion Date and
(ii) the termination of this Agreement, neither the Company nor any
Vendor, nor any of their respective affiliates, agents, counsel or other
representatives, shall (a) solicit, initiate, encourage or accept any
other inquiries, proposals or offers from any Person (as defined below)
relating to (i) any acquisition or purchase, direct or indirect, of all
or substantially all of the ownership interests or assets of the
Company, (ii) any merger, recapitalization, reorganization, joint
venture or other business combination with the Company, or (iii) any
other extraordinary business transaction involving or otherwise relating
to the Company (any of the transactions described in clauses (i), (ii)
and (iii) being referred to herein as a "BUSINESS COMBINATION") or (b)
participate in any discussions, conversations, negotiations or other
communications with any other Person regarding, or furnish to any other
Person any information with respect to, or otherwise cooperate in any
way, assist or participate in, facilitate or encourage any effort or
attempt by any other Person to seek to do, any of the foregoing. The
Company and each Vendor shall immediately cease and cause to be
terminated all existing discussions, conversations, negotiations and
other communications with any Persons conducted heretofore with respect
to any of the foregoing. In the event that the Company, any Vendor or
any of their respective affiliates, officers, employees,
directors, agents, counsel or other representatives, receive any offer
or inquiry, whether written or oral, from any Person with respect to any
Business Combination, the Company or such Vendor shall promptly deliver
to Purchaser a copy (or, in the case of an oral offer or inquiry, a
reasonably detailed summary) of such offer or inquiry. As used herein,
"PERSON" means any individual, partnership, firm, corporation, limited
liability company, association, trust, unincorporated organization or
other entity, as well as any syndicate or group that would be deemed to
be a person under Section 13(d)(3) of the Securities Exchange Act of
1934, as amended.
6A.2 Each of the Vendors, for himself and on behalf of his heirs, assigns,
beneficiaries, executors, and administrators (collectively, the
"RELEASING PARTY"), does hereby fully and irrevocably remise, release
and forever discharge the Company, and its subsidiaries, directors,
officers, shareholders, affiliates, employees, agents, attorneys,
accountants, successors and assigns (together with the Company, the
"RELEASED PARTIES"), of and from any and all manner of claims, actions,
causes of action, grievances, liabilities, obligations, promises,
damages, agreements, rights, debts and expenses (including claims for
attorneys' fees and costs), of every kind, either in law or in equity,
whether contingent, mature, known or unknown, or suspected or
unsuspected, including, without limitation, any claims arising under any
federal, state, local or municipal law, common law or statute, whether
arising in contract or in tort, and any claims arising under any other
laws or regulations of any nature whatsoever, that the Releasing Party
ever had, now has or may have, for or by reason of any cause, matter or
thing whatsoever, from the beginning of the world to the date hereof
(collectively, "PRE-COMPLETION CLAIMS"). The Releasing Party represents,
warrants and covenants that he has not sold, assigned, transferred, or
otherwise conveyed to any other person or entity all or any portion of
his rights, claims, demands, actions, or causes of action herein
released. The Releasing Party further agrees and covenants not to sue or
to bring, or assign to any third person, any claims or charges against
any of the Released Parties with respect to any matter covered by the
release set forth in the previous paragraph, and not to assert against
any of the Released Parties any action, grievance, suit, litigation or
proceeding for any matter covered by the release set forth in the
previous paragraph.
7. INDEMNITIES
7.1 The Vendors shall at all times upon demand (and without any deduction,
set-off or counter-claim whatsoever) indemnify and at all times hold the
Purchaser and the Company fully and effectively indemnified against all
and any liabilities, damages, losses, charges, costs, expenses, claims
and demands of whatever kind or nature (including but not limited to any
liability or increased liability to taxation, any consequential loss,
any loss of or reduction in any benefit and the cost of taking any legal
or other professional advice or action and any interest and/or penalties
which may fall to be paid in relation to any of the above) which the
Purchaser, the Company or any of its or their employees, officers,
customers or sub-contractors may incur, sustain or suffer (whether
directly or indirectly) in relation to or arising in any way from any
inaccuracy or breach, as applicable, of any representation, warranty,
covenant or agreement made by any Vendors herein or in any of the
Schedules hereto.
7.2 Without prejudice to Clause 7.1, the Vendors jointly and severally
undertake to indemnify the Purchaser on demand in relation to all costs,
liabilities and Losses of the Company relating to or arising from the
period prior to Completion save to the extent that such costs,
liabilities or Losses have been provided for in the Accounts or the
Completion Accounts.
7.3 The Vendors shall make payments in respect of any claims under Clause
7.1 and/or Clause 7.2 7 days after the date on which notice setting out
details of such claim is delivered to them.
7.4 A liability or increased liability to taxation shall be deemed to
include a reduction in the availability of losses (or other amounts
eligible for relief from corporation tax) to the Company, where such
losses have been or are utilised to mitigate or eliminate what would
otherwise be a liability or an increased liability to taxation. In that
event the amount due under Clause 7.1 and/or Clause 7.2 in respect of
the liability or increased liability to taxation shall be the amount of
taxation which would have been payable if the losses had not been
available or utilised for set off.
7.5 The parties expressly agree and acknowledge that the Purchaser shall be
entitled to exercise any rights of set-off (whether statutory or at
common law) in respect of any claim under Clause 7 against monies due
under Clause 3 and/or Schedule I.
8. ANNOUNCEMENTS
No announcement, press release, statement, comment or circular relating
to this Agreement or any matter referred to in this Agreement shall be
published made or issued by or on behalf of any party without the prior
written approval of the Purchaser.
9. GENERAL
9.1 COSTS AND EXPENSES
Subject to the other terms of this Agreement, each of the parties shall
pay its own costs and expenses in relation to the negotiation,
preparation and implementation of this Agreement and the Purchaser shall
pay all stamp duty on the transfer of the Shares.
9.2 ENTIRE AGREEMENT
This Agreement (together with any pre-contractual, written or oral
representations or warranties not expressly set out or referred to in
this Agreement) and any documents referred to in it sets out the entire
agreement and understanding between the parties or any of them in
connection with the sale and purchase of the Shares and the other
matters dealt with in this Agreement and supersedes any previous
agreement between the parties in relation to all such matters.
9.3 VARIATION
No variation of this Agreement shall be valid or effective unless made
by one or more documents in writing signed by or on behalf of each of
the parties. For the avoidance of doubt the terms of this Agreement may
be varied by agreement between each of the parties but without the
consent of any third party whether or not the rights of such third party
are affected by such variation.
9.4 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Agreement but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
9.5 SUCCESSORS
9.5.1 The Purchaser shall be entitled to assign any of its rights
under this Agreement.
9.5.2 Except as provided in Clause 9.5.1, this Agreement is not
assignable but it shall be binding upon and inure for the
benefit of each party's successors in title and personal
representatives.
9.6 EFFECT OF COMPLETION
The provisions of this Agreement, insofar as they are not performed at
Completion or are capable of operating or taking effect after
Completion, will remain in full force and effect and capable of so
operating after and notwithstanding Completion.
9.7 RELEASE AND INDULGENCE
9.7.1 No waiver by any party of any of the requirements of this
Agreement or of any of its rights under this Agreement shall
release any other party from full performance of its remaining
obligations under this Agreement.
9.7.2 No failure to exercise or delay in exercising or enforcing any
right, power or remedy under this Agreement shall constitute a
waiver and no single or partial exercise or enforcement or
non-exercise or non-enforcement of any right, power or remedy
under this Agreement shall in any circumstances preclude or
restrict any further or other exercise or enforcement or the
exercise or enforcement of any other right, power or remedy or
the exercise or enforcement of such right, power or remedy
against any other party.
9.7.3 The rights, powers and remedies provided in this Agreement are
cumulative and not exhaustive of any rights, powers and remedies
provided by law.
9.8 SEVERABILITY
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
9.9 FURTHER ASSURANCE
Notwithstanding Completion the Vendors shall from time to time execute
all such documents and take all such steps (including, without
limitation, the provision of all assistance, know how, information and
co-operation) or procure other necessary parties so to do as the
Purchaser may reasonably require in order to perfect the right, title
and interest of the Purchaser to and in the Shares and to give to the
Purchaser the full benefit of this Agreement.
9.10 NOTICES
9.10.1 All notices or other communications required or permitted to be
given to any party under this Agreement ("notices") shall be in
writing and shall be delivered by hand or sent by prepaid first
class post or by facsimile transmission provided always that a
hard copy of any notice transmitted by facsimile is posted
within 24 hours of such transmission in accordance with this
Clause to the addresses of the relevant party indicated in this
Agreement (or such other address or number in the United Kingdom
as that party shall have notified in writing to the other
parties for this purpose). Notwithstanding the foregoing
provisions of this Clause 9.10.1, notices may be served on any
party which is a limited company incorporated in a jurisdiction
within the United Kingdom by delivering by hand or sending the
notice by prepaid first class post to the registered office for
the time being of such company.
9.10.2 A notice delivered by hand shall be deemed to have been served
at the time of such delivery if delivered between 9.00 am and
5.30 pm on a business day or, if delivered before 9.00 am on a
business day, it shall be deemed served at 9.00 am on that
business day or, if delivered after 5.30 pm on a business day or
on a day which is not a business day, at 9.00 am on the next
following business day.
9.10.3 A notice sent by prepaid first class post shall be deemed to
have been served at 9.00 am on the second business day following
the date of posting and in proving such service it shall be
sufficient to show that the notice was properly addressed and
posted in accordance with the provisions of this Clause.
9.10.4 A notice sent by facsimile transmission shall be deemed to have
been served (subject always to the proviso in Clause 9.10.1) at
the time it is transmitted if transmitted between business hours
or, if transmitted outside business hours, as soon thereafter as
business hours commence and it shall be sufficient proof of such
service that a written record of such
transmission was produced. For the purposes of this Clause
9.10.4 "business hours" shall mean 9.00 am to 5.30 pm on
business days.
9.11 COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all the counterparts
shall together constitute one and the same instrument which shall only
be deemed executed when counterparts executed by all the parties are
delivered. Delivery for this purpose shall be deemed effective when any
party confirms in writing (including by facsimile transmission) that he
has executed any counterpart.
9.12 GOVERNING LAW
This Agreement shall be governed by and construed in all respects in
accordance with English law and each of the parties submits to the
exclusive jurisdiction of the English Courts.
EXECUTED by each of the parties on the date appearing at the beginning of this
Agreement.
SIGNED AND DELIVERED )
BY ▇▇▇▇▇ ▇▇▇▇▇▇ ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
IN THE PRESENCE OF:- ) /s/ ▇▇▇▇ ▇▇▇▇▇▇
NAME: ▇▇▇▇ ▇▇▇▇▇▇
ADDRESS:
76 CORNLAND, BEDFORD, BEDS MK41 8HZ
OCCUPATION: ACCOUNTANT
SIGNED AND DELIVERED )
BY ▇▇▇▇ ▇▇▇▇▇▇ ) /s/ ▇▇▇▇ ▇▇▇▇▇▇
IN THE PRESENCE OF:- ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
NAME: ▇▇▇▇▇ ▇▇▇▇▇▇
ADDRESS:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, BEDS MK41 8DU
OCCUPATION: COMPANY DIRECTOR
SIGNED AND DELIVERED )
BY ▇▇▇ ▇▇▇▇▇▇▇ ) /s/ ▇▇▇ ▇▇▇▇▇▇▇
IN THE PRESENCE OF:- ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
NAME: ▇▇▇▇▇ ▇▇▇▇▇▇
ADDRESS:
▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, BEDS
MK41 8DU
OCCUPATION: COMPANY DIRECTOR
SIGNED AND DELIVERED )
FOR AND ON BEHALF OF MAILKEY
CORPORATION ACTING BY
)
) /s/ ▇▇▇ ▇▇▇▇-▇▇▇▇▇
DIRECTOR
DIRECTOR/SECRETARY
Pursuant to Item 601(b)(2) of Regulation S-K, the following exhibits and
schedules have been omitted:
SCHEDULES
I The Vendors
II The Company
III The Property
IV The representations, warranties and undertakings referred to in
Clause 5
V Limitations on Vendors' Liability
VI [Intentionally Left Blank]
VII Completion Arrangements
VIII Taxation Undertaking
EXHIBITS
A - Investment Representation Letter
The Company agrees to furnish supplementally a copy of all omitted
exhibits and schedules to the Securities and Exchange Commission upon request.