Exhibit 2.2
Dated November 1997
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▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (and Others) (1)
ASPECT VISION HOLDINGS LIMITED (2)
and
THE ▇▇▇▇▇▇ COMPANIES, INC. (3)
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Agreement
for the sale and purchase
of the entire issued share capital
of NEW FOCUS HEALTH CARE LIMITED
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T+▇▇(▇)▇▇▇▇▇▇ ▇▇▇▇
F+▇▇(▇)▇▇▇▇▇▇ ▇▇▇▇
Table of Contents
1. Definitions and interpretation...........................................1
2. Condition................................................................4
3. Sale and purchase........................................................4
4. Consideration............................................................5
5. Completion...............................................................5
6. Waiver of pre-emption rights.............................................6
7. RTPA.....................................................................6
8. Announcements............................................................7
9. Implied covenants for title and further assurance........................7
10. Assignment..............................................................7
11. Remedies cumulative.....................................................8
12. Waiver, variation and release...........................................8
13. Costs and expense.......................................................8
14. Notices.................................................................9
15. Counterparts............................................................9
16. Language...............................................................10
17. Invalidity.............................................................10
18. Agreement to continue in full force and effect.........................10
19. Confidentiality........................................................10
20. Governing law and jurisdiction.........................................11
Schedule 1 The Vendors.....................................................12
Schedule 2 Completion Part 1 - Delivery of documents by Vendors............13
Part 2 - Delivery of documents and actions by the Purchaser.........13
Part 3 - Delivery of documents and actions by TCC...................14
Schedule 3 Documents in the agreed terms...................................15
Schedule 4 Conduct of business pending Completion..........................16
THIS AGREEMENT is made the day of November 1997
BETWEEN:-
(1) The persons whose names and addresses are set out in column 1 of schedule 1
(the "Vendors"); and
(2) ASPECT VISION HOLDINGS LIMITED (registered in England with number 3448379)
whose registered office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇ (the "Purchaser"); and
(3) THE ▇▇▇▇▇▇ COMPANIES, INC. a company incorporated in Delaware whose
principal office is at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇ ("TCC").
WHEREAS:-
(A) The Vendors are each shareholders in the Company.
(B) The Purchaser wishes to purchase the entire issued share capital of the
Company from the Vendors and the Vendors have each agreed to sell their
respective shareholdings in the Company in each case upon and subject to
the terms and conditions of this Agreement.
WHEREBY IT IS AGREED as follows:-
1. Definitions and interpretation
1.1 In this Agreement the following words and expressions have the meanings set
opposite them:
"Affiliate": in relation to any body corporate, any
Holding Company or subsidiary undertaking of
such body corporate or any subsidiary
undertaking of a Holding Company of such
body corporate;
"Agreement": this Agreement including its recitals and
the schedules hereto;
"Business Day": a weekday (other than a Saturday) when banks
are open for business in London;
"CA 85": Companies ▇▇▇ ▇▇▇▇;
"Cash Consideration": the cash consideration payable for the
Shares as specified in clause 4.1;
"Company": means New Focus Health Care Limited, a
company registered in England and Wales
under number 1847802 whose registered office
is at ▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇;
"Completion": completion of the sale and purchase of the
Shares pursuant to this Agreement;
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"Condition" the condition referred to in clause 2.1;
"Confidential Information": all information received or obtained by the
Vendors or supplied to the Vendors in the
negotiations leading to this Agreement and
which relates to TCC or any of its
subsidiaries;
"Deed of Contribution": the deed of contribution in the agreed terms
to be entered into at Completion between the
Purchaser, the Vendors and others;
"Earn Out Agreement" the agreement described as the Earn Out
Agreement to be entered into, at completion
of the Umbrella Agreement, between TCC, the
Purchaser and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇;
"Encumbrance": any interest or equity of any person
(including any right to acquire, option or
right of pre-emption) or any mortgage,
charge, pledge, lien, assignment,
hypothecation, security interest, title
retention or any other security agreement or
arrangement;
"EOLN": the loan note to be issued by the Purchaser
to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ by way of further
consideration for the Shares purchased from
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, in accordance with the
terms of the Earn Out Agreement;
"Holding Company": a holding company within the meaning
ascribed to such expression by sections 736
and 736A, CA 85;
"Non Competition the agreements in the agreed terms to be
Agreements": entered into at Completion between the
Purchaser and the Vendors relating to the
protection of the goodwill of the business
of the Company;
"OSI Indemnity": the indemnity agreement in the agreed terms
to be entered into at Completion between
TCC, A Galley, G Galley, B ▇▇▇▇▇, I
▇▇▇▇▇▇▇▇, A ▇▇▇▇▇▇▇ and W ▇▇▇▇▇▇▇;
"Proceedings": any proceeding, suit or action arising out
of or in connection with this Agreement;
"Purchase Notes": the loan notes in the agreed terms to be
issued to the Vendors at Completion by the
Purchaser and guaranteed by TCC;
"Purchaser's Solicitors": ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"RTPA": Restrictive Trade Practices ▇▇▇ ▇▇▇▇;
"Service Agreements": the service agreements in the agreed terms
to be entered into between Aspect Vision
Care Limited and
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each of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
"Service Document": a writ, summons, order, judgment or other
document relating to or in connection with
any Proceedings;
"Shares": the shares in the capital of the Company set
out in column (2) of schedule 1;
"Stock Exchange": London Stock Exchange Limited;
"Subordination Agreement": the subordination agreement in the agreed
terms to be entered into at Completion
between TCC, Keybank National Association
and the holders of the Purchase Notes;
"subsidiary": a subsidiary within the meaning ascribed to
such expression by sections 736 and 736A,
CA 85;
"subsidiary undertaking": a subsidiary undertaking within the meaning
ascribed to such expression by section 258,
CA 85;
"Umbrella Agreement": the umbrella agreement of even date herewith
relating to, inter alia, the sale and
purchase of the Shares and entered into
between the Purchaser, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
and TCC;
"VAT": value added tax;
"Vendors' Solicitors": ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ of ▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇; and
"in the agreed terms": in the form agreed between the Vendors and
the Purchasers and signed for the purposes
of identification by or on behalf of each
party.
1.2 The table of contents and headings in this Agreement are inserted for
convenience only and shall not affect its construction.
1.3 Unless the context otherwise requires words denoting the singular shall
include the plural and vice versa, references to any gender shall include
all other genders and references to persons shall include bodies corporate,
unincorporated associations and partnerships in each case whether or not
having a separate legal personality. References to the word "include" or
"including" are to be construed without limitation.
1.4 References to recitals, schedules and clauses are to recitals and schedules
to and clauses of this Agreement unless otherwise specified and references
within a schedule to paragraphs are to paragraphs of that schedule unless
otherwise specified.
1.5 References in this Agreement to any statute, statutory provision or EC
Directive include a reference to that statute, statutory provision or EC
Directive as amended, extended, consolidated or replaced from time to time
(whether before or after the date of this Agreement) and include any order,
regulation, instrument or other subordinate legislation made under the
relevant statute, statutory provision or EC Directive.
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1.6 References to any English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, court, official or any
legal concept or thing shall in respect of any jurisdiction other than
England be deemed to include that which most approximates in that
jurisdiction to the English legal term.
1.7 Any reference to "writing" or "written" includes faxes and any
non-transitory form of visible reproduction of words.
1.8 References to times of the day are to London time and references to a day
are to a period of 24 hours running from midnight to midnight.
2. Condition
2.1 Condition precedent
Subject to clause 2.3, this Agreement is subject to and conditional upon
satisfaction of the condition in the Umbrella Agreement.
2.2 Time limit for satisfaction of Condition
If the condition in clause 2.1 has not been fulfilled or waived (by mutual
agreement of the parties) by 31 December 1997 (or by such later date as may
be agreed in writing between the parties) this Agreement shall thereupon
become null and void ab initio and none of the parties shall have any
rights against any other party hereunder.
2.3 Operative provisions
Notwithstanding clause 2.1, clauses 8, 10-16 (inclusive), 19 and 20 shall
come into force on the execution and exchange of this Agreement and the
remainder of this Agreement shall come into force on the fulfilment and/or
waiver of the Condition.
2.4 Conduct of business pending Completion
Each of the Vendors hereby undertakes to the Purchaser to procure, to the
extent that they are able, that the Company is run as set out in schedule 4
in respect of the period prior to Completion.
3. Sale and purchase
3.1 Obligation to sell and purchase and free from Encumbrances
Subject to the terms of this Agreement each of the Vendors shall sell, with
effect from 1 November 1997, with full title guarantee and free from
Encumbrances those Shares set opposite his name in column (2) of schedule 1
and the Purchaser shall purchase such Shares together with all rights
attaching thereto with effect from 1 November 1997.
3.2 Dividends and distributions
From Completion the Purchaser shall be entitled to receive all dividends
and distributions declared, paid or made by the Company in respect of the
Shares on or after 1 November 1997.
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3.3 Sale of all Shares
The Purchaser shall not be obliged to complete the purchase of any of the
Shares hereunder unless the purchase of all the Shares is completed
simultaneously.
4. Consideration
4.1 Consideration
The consideration for the Shares shall be:
4.1.1 the sum of 'L'5,361,051 payable in cash; and
4.1.2 the sum of 'L'8,931,614 to be satisfied by the issue of the Purchase
Notes.
4.2 Entitlement to consideration
The consideration shall be allocated such that:
4.2.1 the Cash Consideration shall belong to the Vendors in the proportions
set opposite their respective names in column (3) of schedule 1; and
4.2.2 the Purchase Notes shall be issued to the Vendors in the proportions
set opposite their respective names in column (4) of schedule 1.
4.3 Further consideration
As further consideration for the Shares purchased from ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, the Purchaser hereby undertakes to issue to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
the EOLN at the time and in respect of the amount referred to in clause 4
of the Earn Out Agreement.
4.4 Reduction in consideration
Any payment made by the Vendors pursuant to the operation of the Deed of
Contribution and clause 10 of the Umbrella Agreement, or any other payment
made pursuant to this Agreement, shall be deemed to be pro tanto a
reduction in the price paid for the Shares under this Agreement.
4.5 Guarantee of Purchase Notes
TCC agrees to guarantee the obligations of the Purchaser in respect of the
Purchase Notes on the terms set out in the Purchase Notes.
5. Completion
5.1 Time and location
Subject as provided in clause 5.4, Completion shall take place at the
offices of the Purchaser's Solicitors on the fifth day following
satisfaction or waiver of the Condition or at such other place and/or on
such other date as may be agreed in writing between the Purchaser and each
of the Vendors.
5.2 Vendors' obligations
At Completion the Vendors shall deliver to the Purchaser each of the
documents listed in part 1 of schedule 2.
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5.3 Purchaser's obligations
Subject to the Vendors complying with their obligations under clause 5.2,
the Purchaser shall at Completion deliver the documents and effect the
actions listed in part 2 of schedule 2.
5.4 TCC's obligations
Subject to the Vendors complying with their obligations under clause 5.2,
TCC shall at Completion deliver the documents and effect the transactions
listed in part 3 of schedule 2.
5.5 Failure to comply
If in any respect material to the Purchaser the provisions of clause 5.2
and part 1 of schedule 2 or if in any respect material to the Vendors the
provisions of clauses 5.3 and 5.4 and parts 2 and 3 of schedule 2 are not
complied with on the date of Completion applicable under clause 5.1, the
Purchaser or, as the case may be, the Vendors shall not be obliged to
complete this Agreement and may:-
5.5.1 defer Completion to a date not more than twenty-eight days after the
date set by clause 5.1 (and so that the provisions of this clause 5.4
shall apply to Completion as so deferred); or
5.5.2 proceed to Completion so far as practicable and without prejudice to
their rights under this Agreement; or
5.5.3 rescind this Agreement without prejudice to their rights and remedies
under this Agreement; or
5.5.4 waive all or any of the requirements contained in clause 5.2 or, as
the case may be, clauses 5.3 and 5.4, at their discretion.
6. Waiver of pre-emption rights
The Vendors by their execution of this Agreement hereby waive any
pre-emption rights in respect of the Shares conferred on them under the
articles of association of the Company or otherwise.
7. RTPA
7.1 If there is any provision of this Agreement, or of any agreement or
arrangement of which this Agreement forms part, which causes or would cause
this Agreement or that agreement or arrangement to be subject to
registration under the RTPA, then that provision shall not take effect
until the day after particulars of this Agreement or of that agreement or
arrangement (as the case may be) have been furnished to the Director
General of Fair Trading pursuant to section 24, RTPA.
7.2 The Purchaser shall furnish such particulars as are referred to in clause
7.1 as soon as is reasonably practicable after the date of this Agreement
and within the time limits specified in the RTPA and the Vendors undertake
to provide such information and assistance as the Purchaser may reasonably
require in connection therewith.
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8. Announcements
8.1 Restrictions on announcements
No announcement shall be made in relation to the subject matter of this
Agreement or a matter ancillary to this Agreement without the prior written
consent of the other party save as may be required by any:-
8.1.1 law;
8.1.2 existing contractual arrangements; or
8.1.3 the Stock Exchange or the Panel on Takeovers and Mergers or any other
applicable regulatory authority to which the Vendors are subject
where such requirement has the force of law,
provided such communication shall be made only after consultation with
the Purchaser.
8.2 Continuing effect
The restrictions contained in this clause shall continue to apply after
Completion without limit in time.
8.3 Legal and regulatory requirements
The Purchaser and the Vendors undertake to provide all such information
known to them or which on reasonable enquiry ought to be known to them as
may reasonably be required by the Vendors or the Purchaser for the purpose
of complying with the requirements of law or of any applicable regulatory
authority to which either party is subject where such requirement has the
force of law.
9. Implied covenants for title and further assurance
9.1 The Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇ ("LPMPA") applies
to all dispositions of property made under or pursuant to this Agreement
save that the word "reasonably" shall be deleted from the covenant set out
in section 2(1)(b), LPMPA, and the covenant set out in section 3(1), LPMPA
shall not be qualified by the words "other than any charges, incumbrances
or rights which that person does not and could not reasonably be expected
to know about."
10. Assignment
10.1 No party may assign the benefit of this Agreement whether absolutely or by
way of security except in the case of an absolute assignment of all or part
by the Purchaser to an Affiliate of the Purchaser and provided and so long
as it remains an Affiliate (failing which the benefit of this Agreement
shall no longer be available to such assignee nor to any assignor) save
that the Purchaser may assign such benefit absolutely or by way of security
to a person other than an Affiliate of the Purchaser with the prior consent
in writing of the Vendors such consent not to be unreasonably withheld or
delayed and any purported assignment in contravention of this clause shall
be ineffective.
10.2 Subject to clause 10.1, this Agreement shall be binding upon and ensure for
the benefit of the personal representatives and assigns and successors in
title of each of the parties.
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11. Remedies cumulative
11.1 The rights, powers and remedies provided in this Agreement or expressly
referred to herein are cumulative and do not exclude any rights, powers or
remedies provided by law or by any other document other than this
Agreement.
11.2 Nothing in this Agreement or in any document in the agreed terms shall be
read or construed as excluding any liability or remedy as a result of
fraud.
12. Waiver, variation and release
12.1 No omission to exercise or delay in exercising on the part of any party to
this Agreement any right, power or remedy provided by law or under this
Agreement shall constitute a waiver of such right, power or remedy or any
other right, power or remedy or impair such right, power or remedy. No
single or partial exercise of any such right, power or remedy shall
preclude or impair any other or further exercise thereof or the exercise of
any other right, power or remedy provided by law or under this Agreement.
12.2 Any waiver of any right, power or remedy under this Agreement must be in
writing and may be given subject to any conditions thought fit by the
grantor. Unless otherwise expressly stated any waiver shall be effective
only in the instance and only for the purpose for which it is given.
12.3 No variation to this Agreement shall be of any effect unless it is agreed
in writing and signed by or on behalf of each party.
13. Costs and expense
13.1 General
Save as otherwise stated in this Agreement or in the Umbrella Agreement,
each party shall pay its own costs and expenses in relation to the
negotiation, preparation, execution and carrying into effect of this
Agreement and other agreements forming part of the transaction.
13.2 Group companies to pay no costs
For the avoidance of doubt, neither the Company nor any of its subsidiaries
shall pay any legal or other professional charges and expenses in
connection with any investigation of the affairs of the Company or the
negotiation, preparation, execution and carrying into effect of this
Agreement or any other agreement forming part of the transaction.
14. Notices
14.1 Any communication to be given in connection with the matters contemplated
by this Agreement shall except where expressly provided otherwise be in
writing and shall either be delivered by hand or sent by first class
pre-paid post or sent by air mail. Delivery by courier shall be regarded as
delivery by hand.
14.2 Such communication shall be sent to the address of the relevant party
referred to in this Agreement or to such other address as may previously
have been communicated to the other party in accordance with this clause.
Each communication shall be marked for the attention of the relevant
person.
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14.3 A communication shall be deemed to have been served:-
14.3.1 if delivered by hand at the address referred to in clause 14.2, at
the time of delivery;
14.3.2 if sent by first class pre-paid post to the address referred to in
clause 14.2, at the expiration of two clear days after the time of
posting; and
14.3.3 if sent by air mail to the address referred to in clause 14.2, at
the expiration of five clear days after posting.
If a communication would otherwise be deemed to have been delivered outside
of normal business hours (being 9:30 a.m. to 5:30 p.m. on a Business Day)
in the time zone of the territory of the recipient under the preceding
provisions of this clause, it shall be deemed to have been delivered at the
opening of business on the next Business Day.
14.4 In proving service of the communication, it shall be sufficient to show
that delivery by hand was made or that the envelope containing the
communication was properly addressed and posted as a first class pre-paid
letter or air mail letter.
14.5 A party may notify the other parties to this Agreement of a change to its
name, relevant person or address for the purposes of clause 14.2 PROVIDED
THAT such notification shall only be effective on:-
14.5.1 the date specified in the notification as the date on which the
change is to take place; or
14.5.2 if no date is specified or the date specified is less than five
clear Business Days after the date on which notice is deemed to have
been served, the date falling five clear Business Days after notice
of any such change is deemed to have been given.
14.6 For the avoidance of doubt, the parties agree that the provisions of this
clause shall not apply in relation to the service of Service Documents.
15. Counterparts
15.1 This Agreement may be executed in any number of counterparts and by the
parties on different counterparts, but shall not be effective until each
party has executed at least one counterpart.
15.2 Each counterpart shall constitute an original of this Agreement but all the
counterparts shall together constitute one and the same Agreement.
16. Language
16.1 This Agreement is drawn up in the English language and if this Agreement is
translated into any language other than English, the English language text
shall prevail.
16.2 Each notice, instrument, certificate or other communication to be given by
one party to another hereunder or in connection with this Agreement shall
be in the English language (being the language of negotiation of this
Agreement) and in the event that
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such notice, instrument, certificate or other communication or this
Agreement is translated into any other language, the English language text
shall prevail.
17. Invalidity
Each of the provisions of this Agreement is severable. If any such
provision is or becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, the legality, validity or enforceability
in that jurisdiction of the remaining provisions of this Agreement of that
provision or any other provision of this Agreement, shall not in any way be
affected or impaired thereby.
18. Agreement to continue in full force and effect
This Agreement shall, to the extent that it remains to be performed,
continue in full force and effect notwithstanding Completion.
19. Confidentiality
19.1 The Vendors hereby undertake with the Purchaser that they shall both during
and after the term of this Agreement keep confidential and not directly or
indirectly reveal, report, publish, disclose or transfer or use for their
own or any other purposes Confidential Information except:-
19.1.1 in the circumstances set out in clause 19.2; or
19.1.2 to the extent otherwise expressly permitted by this Agreement; or
19.1.3 with the prior consent in writing of the party to whose affairs such
Confidential Information relates.
19.2 The circumstances referred to in clause 19.1.1 above are:-
19.2.1 where the Confidential Information, before it is furnished to or
comes into the knowledge or possession of any of the Vendors, is in
the public domain; or
19.2.2 where the Confidential Information, after it is furnished to or
comes into the knowledge or possession of the Vendors enters the
public domain otherwise than as a result of (a) a breach by any of
the Vendors of their obligations in this clause 19 or (b) a breach
by the person who disclosed that Confidential Information of his
confidentiality obligation and the relevant Vendor is aware of such
breach; or
19.2.3 if and to the extent that any of the Vendors make disclosure of the
Confidential Information to any person:-
(a) in compliance with any requirement of law; or
(b) in response to a requirement of the Stock Exchange or the Panel
on Take-overs and Mergers or any other applicable regulatory
authority to which any of the Vendors are subject where such
requirement has the force of law; or
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(c) in order to obtain tax or other clearances or consents from the
Inland Revenue or other relevant taxing or regulatory
authorities; or
19.2.4 to the consultants and professional advisers of the Vendors, in each
case on the basis that they will comply with the Vendors'
obligations of confidence hereunder,
PROVIDED THAT any such information disclosable pursuant to clauses 19.2.3
(a), (b) or (c) shall be disclosed to the extent permitted by law and only
after consultation with the other party.
19.3 The restrictions contained in this clause shall continue to apply after the
Completion without limit in time.
20. Governing law and jurisdiction
20.1 English law
This Agreement shall be governed by and construed in accordance with
English law.
20.2 Courts of England and Wales
The parties to this Agreement irrevocably agree that the courts of England
shall have non-exclusive jurisdiction to settle any dispute which may arise
out of or in connection with this Agreement and that accordingly any
Proceedings may be brought in such courts.
20.3 Acceptance by Vendors
For the avoidance of doubt, the Vendors expressly and specifically agree
and accept the terms of this clause and sign below in recognition of this
fact.
AS WITNESS the hands of the parties or their duly authorised representatives on
the date first appearing at the head of this Agreement.
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Schedule 1
The Vendors
(1) (2) (3) (4)
Name and Number of Shares Entitlement to Entitlement to
address and Cash Purchase
facsimile number Consideration ('L') Notes ('L')
(if any)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Galley 221,303 3,080,171 2,053,447
Red Lodge,
▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 261,302 1,515,371 2,046,113
Beacon Wey,
The Hangers,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 208,303 Nil 4,832,054
Grimbles Barn,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ Family Trust 33,000 765,509 Nil
Grimbles Barn,
Buckland Village,
Aston Clinton,
Buckinghamshire HP22 5HY
------- --------- ---------
Totals 723,908 5,361,051 8,931,614
------- --------- ---------
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Schedule 2
Completion
Part 1 - Delivery of documents by Vendors
On Completion, the Vendors shall deliver to the Purchaser:-
1. transfers of such of the Shares as are held by each of the Vendors duly
executed by the registered holder in favour of the Purchaser or its
nominee(s) together with the relevant share certificates in the name of the
registered holder;
2. a counterpart of the Deed of Contribution duly executed by the Vendors;
3. a counterpart of the Subordination Agreement duly executed by those Vendors
who receive Purchase Notes;
4. the Service Agreements duly executed by A. Galley and ▇. ▇▇▇▇▇▇▇;
5. the Non Competition Agreements duly executed by the Vendors;
6. the OSI Indemnity duly executed by those Vendors who are to be a party to
it;
7. such waivers, consents or other documents (including any power of attorney
under which any document required to be delivered under part 1 of this
schedule 2 has been executed) in the agreed terms to enable the Purchaser
and its nominee(s) to be registered as the holders of the Shares sold by
the Vendors; and
8. an irrevocable power of attorney in the agreed terms executed by each of
the Vendors in favour of the Purchaser or its nominee(s) to enable the
beneficiary (pending registration of the transfers of the Shares sold by
the Vendors) to exercise all voting and other rights attaching to the
Shares sold by the Vendors and to appoint proxies for this purpose.
Part 2 - Delivery of documents and actions by the Purchaser
Subject as provided in clause 5.3, on Completion the Purchaser
shall:-
1. pay the Cash Consideration by way of electronic transfer for same day value
to the Vendors' Solicitors who are irrevocably authorised to receive the
same and whose receipt shall be an effective discharge of the Purchaser's
obligation to pay such sum and the Purchaser shall not be concerned to see
to the application or be answerable for the loss or misapplication of such
sums;
2. deliver certificates in respect of the Purchase Notes, duly issued, to such
of the Vendors as are to receive the same;
3. deliver a counterpart of the Deed of Contribution, duly executed by the
Purchaser;
4. counterparts of the Non Competition Agreements duly executed by the
Purchaser;
5. deliver to each of the Vendors a copy of the minutes of a meeting of the
directors of the Purchaser:
5.1 authorising the execution of this Agreement and related documents
(such copy minutes being certified as correct by an officer of the
Purchaser); and
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5.2 resolving to create and issue the Purchase Notes.
Part 3 - Delivery of documents and actions by TCC
Subject as provided in clause 5.4, on Completion TCC shall:
1. execute the instrument constituting the Purchase Notes by way of
guaranteeing the obligations of the Purchaser thereunder;
2. deliver a counterpart of the Deed of Contribution duly executed by TCC;
3. deliver a counterpart of the Subordination Agreement duly executed by TCC;
4. deliver a counterpart of the OSI Indemnity duly executed by TCC;
5. deliver to the Vendors a copy of the minutes of a meeting of the directors
of TCC authorising the execution of:
5.1 the instrument constituting the Purchase Notes; and
5.2 this Agreement.
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Schedule 3
Documents in the agreed terms
Consents, waivers and powers of attorney re: sale of Shares
Deed of Contribution
Non Competition Agreements
OSI Indemnity
Powers of Attorney
Purchase Notes
Service Agreements
Subordination Agreement
-15-
Schedule 4
Conduct of business pending Completion
(i) The business of the Company will be carried on as a going concern and in
the normal course.
(ii) No physical assets of the Company shall be removed from any property of
the Company save in the ordinary course of normal day to day trading.
(iii) The Vendors will use all reasonable endeavours to maintain the trade and
trade connections of the Company.
(iv) All debts which the Company incurs in the normal course of the business
will be settled within the applicable periods of credit.
(v) The Company will not enter into modify or agree to terminate any material
contract (other than in the ordinary course of business) or incur any
capital expenditure on any individual item for an amount in excess of
'L'100,000.
(vi) The Company will not appoint or employ any new employees or consultants
at an annual salary or rate of remuneration in excess of 'L'30,000.
(vii) The Company will not alter materially or agree to alter materially the
terms and conditions of employment (including benefits) of any of its
employees and no Vendor will induce or endeavour to induce any of such
employees to terminate their employment prior to Completion other than
for a justifiable reason.
(viii) The Company will not dispose of any material assets used or required for
the operation of the business of the Company (otherwise than in the
ordinary course of business) or enter into any other transaction
otherwise than in the ordinary course of business.
(ix) The Company will not create any mortgages, charges, or other encumbrances
over its assets or undertakings nor give any guarantees or indemnities in
respect of any third party otherwise than in the ordinary course of
businesses.
(x) Save for debt collection in the ordinary course of business, the Company
will not institute, settle or agree to settle any legal proceedings
relating to the business of the Company.
(xi) The Company will not grant or modify or agree to terminate any rights or
enter into any agreement relating to intellectual property or otherwise
permit any of its rights relating to the intellectual property to lapse.
(xii) The Purchaser will be given full details of any material changes in the
business, financial position and/or assets of the Company from the date
hereof prior to Completion.
(xvi) All the insurance policies of the Company shall be continued for at least
the same amount and on no less favourable terms than as before.
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SIGNED by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Galley )
in the presence of:- )
SIGNED by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ )
in the presence of:- )
)
SIGNED by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
in the presence of:- )
-17-
SIGNED by )
)
for and on behalf of )
THE ▇▇▇▇▇▇▇ FAMILY TRUST )
in the presence of:- )
SIGNED by )
)
for and on behalf of )
ASPECT VISION HOLDINGS LIMITED )
in the presence of:- )
SIGNED by )
)
for and on behalf of )
THE ▇▇▇▇▇▇ COMPANIES, INC. )
in the presence of:- )
-18-