EXHIBIT 2.1
SHARE ACQUISITION AGREEMENT
between
(1) SENSOR NEDERLAND B.V.
(2) INPUT OUTPUT INC.
and
(3) THE VENDORS (as hereinafter defined)
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relating to the sale and purchase of the entire
issued share capital of Concept Systems Holdings Limited
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Completion Date: 23 February 2004
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PARTIES:
(1) Sensor Nederland B.V. a private company having its principal office at
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Purchaser"); and
(2) Input Output Inc., a company registered in Delaware, USA and having a
place of business at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
(the "Parent");
(3) THE PERSONS whose names and addresses are set out in Part 2A of the
Schedule (hereinafter "the Management Shareholders");
(4) THE PERSONS whose names and addresses are set out in Part 2B of the
Schedule (hereinafter ("the 3i Vendors");
(5) THE PERSONS whose names and addresses are set out in Part 2C of the
Schedule (hereinafter "the Non Management Shareholders"); and
(6) THE PERSONS whose names and addresses are set out in Part 2D of the
Schedule (hereinafter the "Employee Shareholders").
RECITALS:
(A) Concept Systems Holdings Limited is a private limited company
incorporated in Scotland under the Companies Acts with registered
number SC183004 and its registered office is situate at ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (hereinafter "the Company").
(B) Further details relating to the Company are as set out in Part 1A of
the Schedule.
(C) The Company is the owner of all of the shares in the Subsidiaries as
hereinafter defined and through Concept Systems Limited carries on the
business of the writing, development, sale and support of computer
software programs primarily for use in the navigation, seismic and
oilfield services related sectors. Details of the Subsidiaries are set
out in Parts 1B and 1C of the Schedule.
(D) The Company has an authorised share capital of (pound)10,682,478.40
divided into 1,001,250 A Ordinary Shares of (pound)1 each ("A Shares"),
866,940 B Ordinary Shares of (pound)1 each ("B Shares "), 254,040 C
Ordinary Shares of (pound)1 each ("C Shares"), 3,296,250 A Preference
Shares of (pound)0.01 each ("A Preference Shares"), 2,728,590 C
Preference Shares of (pound)0.01 each ("C Preference Shares") and
8,500,000 Deferred Shares of (pound)1 each ("Deferred Shares") (the A
Shares, B Shares and C Shares being hereinafter together referred to as
"the Ordinary Shares", the A Preference Shares and the C Preference
Shares being hereinafter together referred to as "the Preference
Shares".
(E) The Company has an issued share capital of 1,001,250 A Ordinary Shares
of (pound)1 each, 288,750 B Ordinary Shares of (pound)1 each, 172,500 C
Ordinary Shares of (pound)1 each, 3,296,250 A Preference Shares of
(pound)0.01 each, 2,728,590 C Preference
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Shares of (pound)1 each and 3,639,879 Deferred Shares of (pound)1 each
("the Sale Shares").
(F) The Company has no subsidiaries or subsidiary undertakings other than
the Subsidiaries.
(G) The Management Shareholders, the Employee Shareholders and the
Non-Management Shareholders are the registered owners of all the Sale
Shares, which are set out opposite their respective names in Part 3A of
the Schedule. The 3i Vendors other than PVML (who has the power to
direct sale of shares) are the beneficial owners of those Sale Shares
set out opposite their names in Part 3A of the Schedule and registered
in the names of their respective nominees.
(H) The Purchaser has offered to purchase and the Vendors have agreed to
sell the Sale Shares on and subject to the terms and conditions of this
Agreement and the Deed of Covenant.
(H) The Purchaser is a member of the Parent's group and, as such the Parent
will directly or indirectly benefit from the acquisition of the Sale
Shares by the Purchaser.
AGREEMENT:
1. DEFINITIONS
In this Agreement and the Schedule unless the context shall otherwise
require, words and expressions shall be interpreted in accordance with
and shall have the meanings ascribed to them in Part 10 of the
Schedule.
2. SALE AND PURCHASE - PRE-EMPTION/CLAIMS
2.1. On the terms and subject to the conditions in this Agreement, the
Vendors shall sell and the Purchaser relying on the warranties,
indemnities and covenants contained in this Agreement and the Deed of
Covenant shall purchase and pay for the Sale Shares and the Loan Notes
at and with effect from the Completion Date, free from all liens,
charges and encumbrances but together with all rights attached or
accruing to them at Completion, including respectively, the right to
receive all unpaid dividends, and interest.
2.2. The Vendors shall waive or procure the waiver of all rights of
pre-emption or other restrictions on transfer in respect of the Sale
Shares conferred upon the Vendors or any other person by the Articles
of Association of the Company or otherwise prior to Completion.
2.3. Each Vendor unconditionally and irrevocably waives in favour of the
Company all dividend payments due by the Company to him to the extent
that they remain unpaid.
2.4. The Management Shareholders, the Non-Management Shareholders and the
Employee Shareholders each covenant that the full legal and beneficial
interest in the number of Sale Shares set alongside his name in column
(4) of
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Schedule Part 3A will be transferred to the Purchaser on the Completion
Date.
2.5. Each of the Management Shareholders hereby severally and individually
warrants to the Purchaser that he has repaid to the Company or any of
the Subsidiaries all sums due from him (or any of his Connected
Persons) to the Company or any of the Subsidiaries at the Completion
Date and that neither he nor any of his Connected Persons has any claim
against the Company or any of the Subsidiaries for unpaid salary,
wages, fees, commission, bonus or other remuneration whatsoever, or in
respect of redundancy or unfair dismissal or compensation for loss of
office or in respect of reimbursement of expenses (other than in
respect of normal salary, and reimbursement of properly incurred
expenses due to the Management Shareholders) and (subject as aforesaid)
each of the Management Shareholders hereby waives any such claim.
2.6. Each of the 3i Vendors (other than Parallel Ventures Managers Limited
("PVML") covenants that:-
2.6.1. it is the sole beneficial owner of the Sale Shares set
opposite its name in column 4 of Part 3A of the Schedule;
2.6.2. that its respective nominee is the sole legal owner of the
Sale Shares set opposite its name in column 4 of Part 3A of
the Schedule;
2.6.3. that it has the power to direct and will direct its respective
nominee to transfer the Sale Shares set opposite its name in
column 4 of Part 3A of the Schedule to the Purchaser on the
Completion Date.
2.7. PVML covenants that it has full power to direct and will direct its
nominee, the sole legal owner of the Sale Shares set opposite its name
in column 4 of Part 3A of the Schedule to transfer the Sale Shares set
out opposite its name in column 4 of Part 3A of the Schedule to the
Purchaser on the Completion Date, such shares being beneficially owned
by the members of the Parallel Ventures (No 2) Co Investment Plan.
2.8. The Vendors (other than the 3i Vendors) waive any and all rights
(whether under the Articles of Association of the Company or under any
other basis whatsoever) to claim against the Purchaser or the Company
in respect of the allocation of the Share Consideration (or any part of
it) as between the Vendors (other than the 3i Vendors).
3. CONSIDERATION
3.1. The total consideration payable by the Purchaser for the sale and
purchase of the Sale Shares and the Loan Notes shall be satisfied by
way of (i) the payment of the cash amount of (pound)927,975.25 in
accordance with Clause 4.4 (the "Share Cash Consideration") and of the
Loan Note Consideration in accordance with Clause 4.4 and (ii) the
issue of 468,592 shares of common stock of the Parent
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credited as fully paid, with an agreed value as at Completion of
US$5.50 per share of common stock (and a par value of US$0.01 each)
("I-O Share Consideration Shares").
3.2. In addition the Purchaser shall immediately after Completion procure
the repayment of the Bank Indebtedness, and procure the payment of the
3i Loan Repayment and make the capital contribution to Concept Systems
Limited in each case in accordance with Clause 4.4.3 and 4.4.4.
4. COMPLETION
4.1. The purchase and sale of the Sale Shares shall be completed at ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇ the Completion Date when each of the
Vendors (other than the 3i Vendors in respect of sub-Clause 4.1.4)
shall deliver to the Purchaser the following:-
4.1.1. a duly executed transfer in favour of the Purchaser, or such
nominee or nominees of the Purchaser as the Purchaser may have
nominated, together with the original share certificates in
respect of their respective Sale Shares;
4.1.2. a duly executed transfer in favour of the Purchaser, or such
nominee or nominees of the Purchaser as the Purchaser may have
nominated, together with the Loan Note certificates in respect
of all of their respective Loan Notes;
4.1.3. a certified copy of any power of attorney under which this
Agreement or any document executed in pursuance hereof is
executed on behalf of any of the Vendors (in a form previously
approved by or on behalf of the Purchaser);
4.1.4. a duly executed power of attorney in the Agreed Form in favour
of the Purchaser;
4.2. The Management Shareholders shall deliver or procure the delivery
(where appropriate) of:-
4.2.1. (to the extent that the same are not already under the control
of the Company), the seal (if any), memorandum and articles of
association certificate of incorporation and certificate of
incorporation on change of name and statutory books of the
Company and the Subsidiaries (which shall each be written up
to the time immediately preceding Completion);
4.2.2. the Deed of Covenant duly executed by each of the parties to
it other than the Purchaser;
4.2.3. the Disclosure Letter duly signed by the Management
Shareholders;
4.2.4. (to the extent that the same are not already in the possession
or under the control of the Company) all documents of title to
the assets of the Company and the Subsidiaries including the
Properties;
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4.2.5. all bank books, cheque books and bank statements of the
Company and the Subsidiaries and certificates from each of the
banks at which the Company and the Subsidiaries maintains an
account of the amounts standing to the credit or debit of such
account at the close of business two Business Days immediately
preceding the Completion Date together with a reconciliation
of each of such accounts brought down to the close of business
on the Business Day immediately prior to the Completion Date;
4.2.6. duly executed Deed of Release in the Agreed Form (which shall
be held by the Purchaser to the order of the Vendors unless
and until the Purchaser shall have procured the discharge of
the Bank Indebtedness in full in accordance with Clause 4.3.3
below) and evidence satisfactory to the Purchaser that each
registered charge or other registered security (if any) to
which any of the assets or undertaking of the Company or the
Subsidiaries are subject has been released or discharged;
4.2.7. written letters of resignation and releases in the Agreed Form
from all persons that the Purchaser has identified to the
Vendors who on or immediately prior to Completion may be
directors or the secretary of the Company and the Subsidiaries
resigning their offices and employment and releasing the
Company and the Subsidiaries from all claims and rights of
action whether by way of compensation, remuneration,
redundancy payments or otherwise (save for claims and rights
of action which are or may become competent to them in their
capacity as employees of the Company and the Subsidiaries
after Completion);
4.2.8. the duly executed Lease Reports in the Agreed Form;
4.2.9. written Letters of Resignations of the existing Auditors of
the Company and the Subsidiaries in the Agreed Form;
4.2.10. the new Service Contracts (in the Agreed Form) duly signed by
▇. ▇▇▇, ▇. ▇▇▇▇▇ and ▇. ▇▇▇▇▇▇▇▇;
4.2.11. original share certificates in respect of the Subsidiaries;
and shall procure:-
4.2.12. the appointment as directors of the Company and the
Subsidiaries and as the secretary thereof of such persons as
the Purchaser shall require;
4.2.13. the revocation of all existing bank mandates and the issue of
a new mandate in relation to each account maintained by the
Company and the Subsidiaries giving authority to such persons
as the Purchaser may require;
4.2.14. that a Board Meeting of the Company and the Subsidiaries will
be held which will transact the business specified in draft
Minutes thereof in the Agreed Form including but not limited
to, the approval
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and, subject to stamping, the registration of the transfer of
the Sale Shares;
4.2.15. the execution of the Deed of Release from the Bank in respect
of the Bank Indebtedness;
4.2.16. the delivery of the MCR and RBS Covenants in the Agreed Form.
4.3. The 3i Vendors shall procure that a duly executed Release in the Agreed
Form of the 3i Loan in favour of the Company is delivered to the
Purchaser;
4.4. Immediately following implementation of the matters specified in
Clauses 4.1 4.2 and 4.3 above (or written waiver from the Purchaser of
the relevant provisions), the Purchaser and/or the Parent (as
appropriate) shall pay the Share Cash Consideration and the Loan Note
Consideration to the Vendors' Solicitors as agent for the Vendors by
way of CHAPs transfer for same day value to a bank account nominated by
the Vendors' solicitors as agent for the Vendors (the Vendors'
Solicitors being hereby irrevocably authorised to receive the same by
the Vendors and whose receipt therefore shall constitute an absolute
discharge of the Share Cash Consideration and the Loan Note
Consideration payable by the Purchaser) and the Purchaser shall not be
concerned as to the application of the moneys so paid; and:-
4.4.1. deliver to the Vendors:-
4.4.1.1 a certified copy of the minutes of a meeting of the
directors of the Purchaser and the Parent authorising
the execution by the Purchaser and the Parent of this
Agreement and of any other documents in the Agreed
Form which require execution by the Purchaser and/or
the Parent at Completion;
4.4.1.2 the Deed of Covenant duly executed by the Purchaser;
4.4.1.3 the Service Contracts in the Agreed Form duly
executed by Concept Systems Limited;
4.4.1.4 the duly executed Registration Rights Agreement, the
duly signed Secretary's Certificate, the duly signed
Dutch Legal Opinion and the duly signed US Legal
Opinion;
4.4.1.5 the duly signed Confirmation Letter;
4.4.1.6 the duly signed Registrar's Letter;
4.4.1.7 any other documents in the Agreed Form which require
execution by the Purchaser and/or the Parent at
Completion;
4.4.2 immediately after Completion but on the Completion Date the
Purchaser shall procure the Company repays the cash element of
the Bank Indebtedness in full in accordance with Clause 4.4.4;
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4.4.3 procure the payment of the 3i Loan Repayment by way of CHAPs
transfer of the sum of(pound)2,806,497.94 for same day value
to a bank account nominated by the Vendors' Solicitors as
agent for the Vendors (the Vendors' Solicitors being hereby
irrevocably authorised to receive the same by the Vendors, and
whose receipt therefor shall constitute an absolute discharge
of the cash element of the 3i Loan Repayment and the Purchaser
shall not be concerned as to the application of the moneys so
paid and procure the issue of 1,001,776 shares of common stock
of the Parent each credited as fully paid to those entities
and in those amounts shown in Part 3C of the Schedule; (ii)
issue the I-O Share Consideration Shares (credited as fully
paid up with no further liability thereon) to the Vendors at
the addresses specified as to each Vendor set forth on Part 2A
and Part 2B of the Schedule ("IO 3i Consideration Shares", the
IO Share Consideration Shares and the IO 3i Consideration
Shares being herein together called the "IO Consideration
Shares"), or as they may otherwise direct in writing and shall
deliver to the Management Shareholders, the 3i Vendors and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, stock certificates in respect of their
respective shares of common stock in the Parent at Completion
or as soon as reasonably practicable after Completion; (iii)
issue the I-O Fee Shares to the parties and in the amounts set
out in Part 3D of the Schedule; and (iv) procure the payment
by the Purchaser of the sum of(pound)539,766.74 to Concept
Systems Limited as a capital contribution to that company,
such amount to be applied solely for the purpose of paying
certain agreed bonuses to certain employees of that company;
4.4.4 the Purchaser shall procure the payment of the cash amount of
(pound)13,896,594.08 and will procure the issue of 152,344
shares of common stock of the Parent each credited as fully
paid, representing the total amount of the Bank Indebtedness
(which will be accepted also in full settlement of all
outstanding interest, fees, expenses and all other sums
referable thereto), which cash amount of (pound)13,896,594.08
shall be paid by the Purchaser by telegraphic transfer for
same day value to the following client account of the Vendor's
Solicitors (who have been irrevocably authorised to receive
the same).
Bank: The Royal Bank of Scotland plc, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Sort Code: 83-51-00
Account No.: ▇▇▇▇▇▇▇▇
4.5. Each of the Vendors and the Purchaser confirm that they have
irrevocably approved and authorised the payment of those management
bonuses which are referred to in Clause 4.4.3 above and that the
Vendors Solicitors are irrevocably authorised and instructed to apply
such funds accordingly.
4.6. The Management Shareholders, the 3i Vendors and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ each
undertake to each other to use all reasonable endeavours to make a
written request for registration of the I-O Consideration Shares in
terms of the Registration Rights Agreement within 30 days of the
earliest date possible for such registration in accordance with the
Registration Rights Agreement.
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5. WARRANTIES AND PURCHASER'S REMEDIES
5.1. Each of the Management Shareholders, the Non- Management Shareholders
and the Employee Shareholders hereby severally represents and warrants
to the Purchaser that each of the statements contained in paragraphs 1
to 4 inclusive of Part 4A of the Schedule is, to the extent that it is
given by that Management Shareholder, Non-Management Shareholder and
Employee Shareholder in respect of himself only, true and accurate in
all respects.
5.2. The Management Shareholders hereby jointly and severally represent and
warrant to the Purchaser that each of the statements contained in Part
4 of the Schedule (save for the statements contained in paragraph 1 to
4 (inclusive) of Part 4A of the Schedule which are made severally) is
true and accurate in all respects.
5.3. Each of the 3i Vendors severally warrants to the Purchaser that the
statements set out at paragraph 4 only of Part 4A of the Schedule are
true and accurate in all respects, in each case in respect of itself
only and the liability of each 3i Vendor shall be limited to the Cash
and IO Consideration Shares actually received by it.
5.4. Breach of warranty shall not entitle the Purchaser to rescind or
terminate this Agreement or any part of it in the absence of fraud,
whether before or after Completion.
5.5. The Purchaser hereby expressly acknowledges and agrees with the Vendors
that the Purchaser in entering into and/or performing this Agreement,
is not relying upon any statement, representation, warranty or
undertaking whatsoever in the absence of fraud (whether made by the
Vendors or any officers, employees or agents of the Company whosoever)
which is not expressly set out in this Agreement (including for the
avoidance of doubt) the Deed of Covenant.
5.6. Each of the Vendors hereby waives any claim he has or may have against
the Company or any of the Subsidiaries or any officer or employee of
the Company or any of the Subsidiaries on whom he may have relied
before entering into any term of this Agreement or the Deed of Covenant
or the preparation of the Disclosure Letter;
5.7. Each of the Warranties shall be construed as separate and independent
so that the Purchaser shall have a separate claim and right of action
in respect of a breach of each such Warranty.
5.8. The Purchaser and the Parent severally warrant to the Vendors that:-
5.8.1. the Purchaser and the Parent have the requisite power and
authority to enter into, and perform its obligations under,
this Agreement and the other documents which are to be
executed by the Purchaser at Completion;
5.8.2. this Agreement constitutes and the documents which are to be
executed by the Purchaser and the Parent at Completion will,
when
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executed by the Purchaser and the Parent, constitute binding
obligations of the Purchaser and the Parent in accordance with
their respective terms; and
5.8.3. Upon issuance and delivery of the I-O Consideration Shares in
accordance with the terms of this Agreement, such shares will
be duly authorised, validly issued, fully paid and
non-assessable, free and clear of all liens, claims and
encumbrances, other than any liens, claims or encumbrances
created by the Management Shareholders, the 3i Vendors or
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in relation to their respective shares. The
delivery of all I-O Consideration Shares at Completion in
accordance with the terms of this Agreement will transfer good
and valid title to, and beneficial ownership of, such shares.
The issuance and sale of the I-O Consideration Shares in
accordance with the terms of this Agreement will not be
subject to any pre-emptive rights or rights of first refusal
and will not violate any laws to which the Parent or any of
its assets are subject.
5.9. The Purchaser irrevocably agrees with the Vendors that notwithstanding
any rule of law to the contrary:-
(a) The Purchaser confirms that the terms of the
Disclosure Letter itself have been negotiated between
the parties and that the disclosure letter forms part
of the contractual arrangement between the Vendors
and the Purchaser, in connection with the sale and
purchase of the Sale Shares;
(b) the Purchaser has had fair opportunity to review the
documents and information listed in the disclosure
bundles which are annexed to the Disclosure Letter.
5.10. SECURITIES LAW MATTERS
5.10.1 With a view to making available the benefits of certain rules
and regulations of the SEC that may permit the resale of the
I-O Consideration Shares and the I-O Fee Shares (together "the
Restricted Stock") to the public without registration, for a
period of two years after the Completion Date, the Parent
agrees to use its reasonable efforts to:
(a) make and keep public information (as such terms are
defined in Rule 144) regarding the Parent available;
(b) file with the SEC in a timely manner all reports and
other documents required of the Parent under the
United States Securities Act of 1933 as amended (the
"1933 Act") and the Securities Exchange Act of 1934,
as amended (the "1934 Act"); and
(c) furnish to the Vendors upon written request a written
statement by the Parent as to its compliance with the
reporting requirements of Rule 144, the 1933 Act and
the 1934 Act, a
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copy of the most recent annual or quarterly report of
the Parent, and such other reports and documents so
filed as such Vendors may reasonably request in
availing himself, herself or itself of any rule or
regulation of the SEC allowing such Vendors to sell
any such shares without registration.
5.10.2 The Management Shareholders, the 3i Vendors and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ hereby acknowledge and agree that the issuance of the
I-O Shares is made on the basis of the statements given
severally by each of them (in respect of themselves only) and
set out in Part 8 of the Schedule hereto.
6. CLAIMS PROCEDURE
6.1. In the event of the Purchaser giving notice to the Vendors or any of
them of a claim under any provision of this Agreement (other than a
claim under the Deed of Covenant, in relation to which the provisions
of Clause 4 of the Deed of Covenant shall apply) (in this Clause "a
Claim"), the Purchaser will procure that:-
6.1.1. the Purchaser and the Company shall consult with the
Management Shareholders and keep the Management Shareholders
informed of any action taken to avoid, resist, contest or
compromise or defend a claim by or against a third party ("a
Third Party Claim"); and any claim or matter which gives or
may give rise to a Claim;
6.1.2. the Purchaser shall from time to time and forthwith upon the
request of the Management Shareholders keep the Management
Shareholders fully informed of their conduct of and any
negotiations relating to the defence of such Third Party
Claim; and
6.1.3. the Purchaser shall not settle or compromise any claim or
matter which gives or may give rise to a Claim without the
prior written consent of each of the Management Shareholders
(such consent not to be reasonably withheld or delayed).
7. LIMITATIONS ON CLAIMS
7.1. The provisions of Part 7 of the Schedule shall apply to limit the
liability of the Vendors under the Warranties and, where specific
reference is made, under the Deed of Covenant.
8. PROTECTION OF GOODWILL
8.1. Each of the Management Shareholders hereby undertakes to and agrees (on
a several and individual basis) with the Purchaser (for itself and as
agent for the Company) that:-
(a) (i) he will not during the period of two years from the
Completion Date canvass or solicit or undertake in
competition with the Company or any Subsidiary the
custom or business of any person, firm or company who
at
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any time during the period of eighteen months prior
to the Completion Date was a customer of the Company
or any Subsidiary;
(ii) he will not during the period of two years following
the Completion Date, compete with the Company (or any
Subsidiary) or carry on or assist with or be
concerned or interested in the carrying on of the
business of the nature or type carried on by the
Company or any Subsidiary prior to the Completion
Date;
(b) he will not during the period of two years from the Completion
Date entice, solicit or endeavour to entice or solicit any
employee, contractor or consultant employed in an executive,
senior or engineering role with the Company or any Subsidiary
away from employment with the Company; and
(c) he will not during the period of two years from the Completion
Date interfere or seek to interfere with the supply to the
Company or any Subsidiary of any goods or services by any
supplier who during the twelve months preceding such time
shall have supplied goods or services to the Company or any
Subsidiary nor will he interfere or seek to interfere with the
continuance of such supply or the terms on which such supply
has during such period as aforesaid been made;
(d) he will not at any time following the Completion Date use any
of the Intellectual Property of the Company or the
Subsidiaries and in particular not use any of the names or
words Concept Systems, Concept, Spectra, Sprint, Reflex,
Gator, Aegis, Mercator and Scorpion or any names or words
similar to or likely to be confused with them as a corporate
name, trading name or trade or service ▇▇▇▇ or product name or
otherwise or as part of any such name or ▇▇▇▇.
The restrictions set out in this Clause 8.1 shall apply to any action
taken by the Management Shareholders (or their Connected Persons)
whether on his own behalf or on behalf of any person, firm or company
(whether as agent, employee or otherwise) as agent, representative,
principal, employee or consultant or as a director of any company.
8.2. Each of the Vendors hereby undertakes to the Purchaser with the intent
of assuring to the Purchaser the full benefit and value of the goodwill
and connections of the Company and as a constituent part of the
Agreement for the sale of the Sale Shares that, without the written
consent of the Purchaser, he will not at any time following the
Completion Date divulge to any person or otherwise make use of any
secrets, trade secrets, confidential knowledge or confidential
information concerning the business, finance or affairs of the Company
or of any customer or supplier of the Company (save for any information
which is in or comes into the public domain otherwise than through a
breach of this Agreement or to the extent required by law or by any
regulatory authority or be ordered by a Court of competent
jurisdiction).
12
8.3. Nothing in Clause 8.1(d) and/or 8.2 shall restrict or prevent any
Management Shareholder from performing his duties in accordance with
the terms of his service contract with the Company and/or the
Purchaser.
8.4. Each of the Management Shareholders undertakes to the Purchaser for a
period of two years after Completion promptly to refer to the Company
or the Purchaser all enquiries which it may receive from any customer
of the Company and/or the Subsidiaries.
8.5. It is agreed between the parties that, whilst the restrictions set out
in Clause 8.1 are considered fair and reasonable, if:-
8.5.1. it should be found that any of the restrictions is void or
unenforceable as going beyond what is fair and reasonable in
all the circumstances; and/or
8.5.2. if by deleting part of the wording or substituting a shorter
period of time or different geographical limit or a more
restricted range of activities for any of the periods of time,
geographical limits or ranges of activities set out in Clause
8.1 it would not be void;
then there shall be substituted the next less extensive period, limit
or activity or the necessary deletions shall be made so that Clause
8.1 is valid and enforceable.
9. ANNOUNCEMENTS
9.1. Upon the signing of this Agreement by the parties hereto a press
release in the Agreed Form shall be released on behalf of the Vendors
and the Purchaser.
9.2. Subject to Clause 9.1 no announcements or press or media releases
concerning any matter touching on this Agreement (other than as may be
required by law or the London or New York Stock Exchange or the rules
of any regulatory body or authority of which the Purchaser, the Parent
or the Company is a member or which regulates its activities) shall be
made by the Vendors or the Purchaser unless and until the form and
content of such announcement or release (including any mention of the
consideration for the sale and purchase of the Sale Shares) have been
submitted to and agreed by the other party or parties to this
Agreement.
10. GENERAL
10.1. Neither the Vendors nor the Purchaser shall be entitled to assign
their/its rights or obligations under this Agreement (or any part of
it) to any person without the prior written consent of the other party
or parties save that if the Sale Shares shall at any time be sold or
transferred to an Affiliate of the Purchaser the benefit of such rights
and obligations may be assigned to the transferee of the Sale Shares
which shall be entitled to enforce all of such rights and obligations
as if it were named herein as the Purchaser for so long as it remains
as an Affiliate of the Purchaser.
13
10.2. Save where the context otherwise specifically admits, time shall be of
the essence as regards any date or period mentioned in this Agreement
provided that to the extent that any date or period be altered by
written agreement between the Vendors and the Purchaser, time shall be
of the essence as regards such date or period as so altered.
10.3. Interest will run on any sums payable to either party by the other
under or in connection with this Agreement at a rate of 3 per cent. per
annum above the base rate of the Bank from time to time, such interest
to run (as well before as after judgment or decree (as the case may
be)) from the due date for payment until the date upon which full
payment is received by the relevant party.
10.4. Subject to the provisions of Clause 7, no failure or delay by the
Purchaser to exercise any right or power hereunder shall operate as a
waiver thereof, nor shall any partial exercise preclude any other or
further exercise or the exercise of any other right.
10.5. This Agreement and the Deed of Covenant shall be binding upon and enure
for the benefit of each party's personal representatives or executors
or other successors in title.
10.6. Each of the 3i Vendors hereby irrevocably undertakes on its own part
and not on the part of any other in relation to the Shares set out
opposite such 3i Vendor's name in Part 2B of the Schedule to exercise
all voting and other rights attaching to such Shares pending
registration of the Purchaser as holder of such Shares as the Purchaser
may direct.
10.7. Each of the Vendors hereby agree to do all things at the Purchaser's
expense as the Purchaser shall reasonably require in order to procure
that the Purchaser or its nominees are duly registered as the holders
of all the Sale Shares sold by that Vendor (and no other) in terms of
this Agreement.
11. ENTIRE AGREEMENT
11.1. This agreement, the Deed of Covenant and the Disclosure Letter and the
documents in the Agreed Form contain the entire agreement, in the
absence of fraud, between the parties or any of them with respect to
the transactions contemplated herein ("the Specified Documents").
11.2. This Agreement may only be varied in writing signed by each of the
parties.
11.3. If any party shall consider it to be necessary or desirable to notify
this agreement (together with any other agreements to which it is
related) to the Office of Fair Trading under the provisions of the
Competition ▇▇▇ ▇▇▇▇ or to the European Commission under Council
Regulation 17/62 or to any other appropriate entity under any other
applicable competition legislation or regulations, for the purpose of
obtaining guidance and/or a decision and/or an exemption in respect of
this agreement, the parties shall co-operate fully in making any such
notification as soon as reasonably practicable after the date of this
agreement.
14
12. NOTICES
12.1. All notices, requests, demands or other communications to or upon the
respective parties hereto shall be given at their respective addresses
specified herein or, if different, the last known address of the
relevant party. Notices may be given by personal delivery (in which
case the notice shall be deemed to be served at the time of delivery),
by recorded delivery mail if posted in the United Kingdom to an address
within the United Kingdom (in which case the notice shall be deemed to
be served 48 hours after the time of posting), by overseas registered
mail if posted within the United Kingdom to an address outside the
United Kingdom (in which case the notice shall be deemed to be served
on the fifth Business Day after the time of posting) or by facsimile
transmission ("fax") (in which case the notice shall be deemed to be
served on the receipt of the appropriate transmission receipt).
12.2. Any notice to be given to the Vendors or any of them must be given to
▇▇▇▇▇▇▇▇ ▇▇▇ (one of the Management Shareholders) with a copy to the
Vendors' Solicitors marked on their behalf "urgent - for the attention
of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇" and communications to the Purchaser shall be marked
"urgent - for the attention of the Company Secretary". In the case of
any notices relating to any of the 3i Vendors they should be sent to 3i
and marked "urgent" for the attention of ▇▇▇▇ ▇▇▇▇▇▇▇ with reference
code no. ▇▇-▇▇▇▇▇▇▇.
13. EXPENSES
13.1. Save as otherwise provided in any other provision of this Agreement,
the parties shall each pay their own costs and expenses in connection
with the negotiations leading up to the sale of the Sale Shares and in
preparing and negotiating this Agreement and any other documents
referred to in it.
13.2. Without prejudice to Clause 14.1, all stamp, transfer, registration and
other similar taxes, duties and charges payable in connection with the
sale or purchase of the Sale Shares under this Agreement shall be paid
by the ▇▇▇▇▇▇▇▇▇.
▇▇
▇▇. GOVERNING LAW
This Agreement shall be governed by and construed in all respects in
accordance with the Law of Scotland and the parties hereto irrevocably
prorogate the non-exclusive jurisdiction of the Scottish Courts; IN
WITNESS WHEREOF these presents consisting of this page, the 14 previous
pages and the Schedule (comprising Parts 1 to 10 inclusive) are
executed at Edinburgh on the 23rd day of February 2004 as follows:-
Executed by ALASTAIR ▇▇▇▇▇ ▇▇▇ /s/ ▇▇ ▇▇▇
at Edinburgh on 23 February 2004 in the
presence of the following witness:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Witness
▇▇▇▇ ▇▇▇▇▇▇▇ Name
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Address
Edinburgh
Executed by ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
at Edinburgh on 23 February 2004 in the
presence of the following witness:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Witness
▇▇▇▇ ▇▇▇▇▇▇▇ Name
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Address
Edinburgh
Executed by ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
at Edinburgh on 23 February 2004 in the
presence of the following witness:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Witness
▇▇▇▇ ▇▇▇▇▇▇▇ Name
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Address
Edinburgh
Executed for and on behalf of
CONCEPT ESOP TRUSTEE LIMITED /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
by ▇. ▇▇▇▇▇▇▇▇
one of its directors at Edinburgh Director
on 23 February 2004 in the presence
of the following witness:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Witness
▇▇▇▇ ▇▇▇▇▇▇▇ Name
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Address
Edinburgh
16
Executed for and on behalf of
3i PLC /s/ ▇. ▇▇▇▇▇▇▇
at Edinburgh on 23 February 2004
by ▇. ▇▇▇▇▇▇▇
its duly authorised attorney in the presence
of the following witness:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Witness
▇▇▇▇ ▇▇▇▇▇▇▇ Name
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Address
Edinburgh
Executed for and on behalf of
3i GROUP PLC /s/ ▇. ▇▇▇▇▇▇▇
at Edinburgh on 23 February 2004
by ▇. ▇▇▇▇▇▇▇
its duly authorised attorney in the presence
of the following witness:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Witness
▇▇▇▇ ▇▇▇▇▇▇▇ Name
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Address
Edinburgh
Executed for and on behalf of
3i PARALLEL VENTURES LP /s/ ▇. ▇▇▇▇▇▇▇
at Edinburgh on 23 February 2004
by ▇. ▇▇▇▇▇▇▇
its duly authorised attorney in the presence
of the following witness:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Witness
▇▇▇▇ ▇▇▇▇▇▇▇ Name
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Address
Edinburgh
Executed on behalf of
PARALLEL VENTURES MANAGERS LIMITED /s/ ▇. ▇▇▇▇▇▇▇
as Administrators of and attorney for the
Members of Parallel Ventures (No. 2) Co-
Investment Plan acting by its attorney 3i Investments plc by
as duly authorised attorney for 3i Investments plc
at Edinburgh on 23 February 2004
in the presence
of the following witness:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Witness
▇▇▇▇ ▇▇▇▇▇▇▇ Name
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Address
Edinburgh
17
Executed for and on behalf of
3i UKIP II LP by
its manager 3i Investments plc /s/ ▇. ▇▇▇▇▇▇▇
at Edinburgh on 23 February 2004
by
its duly authorised attorney in the presence
of the following witness:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Witness
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Name
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Executed on behalf of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
by her duly authorised attorney
at Edinburgh on 23 February 2004
in the presence of the following witness:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Witness
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Name
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Executed on behalf of ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
by his duly authorised attorney
at Edinburgh on 23 February 2004
in the presence of the following witness:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Witness
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Name
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Executed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
at Edinburgh on 23 February 2004
in the presence of the following witness:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Witness
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Name
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Executed on behalf of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
by his duly authorised attorney
at Edinburgh on 23 February 2004
in the presence of the following witness:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Witness
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Name
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
18
Executed on behalf of ▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
by his duly authorised attorney
at Edinburgh on 23 February 2004
in the presence of the following witness:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Witness
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Name
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Executed on behalf of ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
by his duly authorised attorney
at Edinburgh on 23 February 2004
in the presence of the following witness:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Witness
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Name
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Executed on behalf of ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
by his duly authorised attorney
at Edinburgh on 23 February 2004
in the presence of the following witness:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Witness
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Name
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Executed by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
at Edinburgh on 23 February 2004
in the presence of the following witness:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Witness
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Name
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Executed on behalf of ▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
by his duly authorised attorney
at Edinburgh on 23 February 2004
in the presence of the following witness:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Witness
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Name
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
19
Executed on behalf of ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
by his duly authorised attorney
at Edinburgh on 23 February 2004
in the presence of the following witness:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Witness
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Name
One Ropemaker ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Executed on behalf of ▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
by his duly authorised attorney
at Edinburgh on 23 February 2004
in the presence of the following witness:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Witness
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Name
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Executed on behalf of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
by his duly authorised attorney
at Edinburgh on 23 February 2004
in the presence of the following witness:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Witness
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Name
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Executed by SENSOR NEDERLAND B.V.
at Edinburgh on 23 February 2004
By: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Proxyholder
and
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Proxyholder
Executed by INPUT/OUTPUT INC.
Executed by: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive vice President and
Chief Financial Officer
at Edinburgh on 23 February 2004
106
Schedule Part 10
SCHEDULE
PART 10
DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context shall otherwise require, the
following words and expressions shall have the following meanings:-
"Accounts" means the consolidated audited balance
sheet and profit and loss account of the
Company and each Subsidiary as at, and for
the financial year ended on, the Accounts
Date, together with the auditors' and
directors' reports, cash flow statement and
notes and other documents annexed thereto;
"Accounts Date" means 30th November 2003;
"Affiliate" means in relation to a company that
company's subsidiaries, its holding company
and any subsidiaries of its holding company;
"in the Agreed Form" means in relation to any document in a form
agreed between the parties and for the
purposes of identification initialled by the
Purchaser's Solicitors and the Vendors'
Solicitors;
"Associate" bears the meaning given by section 435 of
the Insolvency ▇▇▇ ▇▇▇▇;
"Assurance" means any warranty, representation,
statement, assurance, covenant, agreement,
undertaking, indemnity, guarantee or
commitment of any nature whatsoever;
"the Bank" means The Royal Bank of Scotland plc;
"Bank Indebtedness" means the sum of (pound)14,349,508.67 being
the aggregate amount outstanding to the Bank
in respect of all loan amounts, interest,
fees, expenses and costs (including any
accrued but unpaid interest thereon) due by
the Company (or any member of the Group) to
the Bank pursuant to the Facilities
Agreements or otherwise;
the "Business" means the business of the development
107
Schedule Part 10
and commercial exploitation of computer
controlled data acquisition and measurement
systems for use in the oil and gas seismic
industry (both offshore and onshore) as
carried on by the Company (and its
subsidiaries) prior to the date hereof;
"Business Day" means any day other than a Saturday, Sunday
or day on which Scottish clearing banks are
closed for normal business throughout
Scotland;
"the Companies Acts" bears the meaning given to that expression
in section 744 of the Companies ▇▇▇ ▇▇▇▇ and
includes also the Companies ▇▇▇ ▇▇▇▇;
"Completion" means the actual completion of the matters
set out in Clause 4;
"the Completion Date" means 23 February 2004 or such other date as
may be agreed by the Vendors and the
Purchaser;
"Confirmation Letter" means the letter in the Agreed Form setting
out the stock option proposals for ▇. ▇▇▇,
▇. ▇▇▇▇▇▇▇▇ and ▇. ▇▇▇▇▇ and others and
agreeing to recapitalise the Company's
balance sheet within 6 months of the
Completion Date;
"Connected Persons" means, in relation to any person, any person
connected with him as determined in
accordance with Section 839 of TA 1988 and
additionally, in relation to a body
corporate, each director of that body
corporate and any person connected with any
other person having control of that body
corporate as determined as aforesaid;
"Covenantors" means the parties set out in Part A of the
Schedule to the Deed of Covenant;
"the Deed of Covenant" means the duly executed deed of covenant in
the form set out in Part 5 of the Schedule;
"the Disclosure Letter" means the letter (if any) of even date
herewith from the Management Shareholders to
the Purchaser;
"Dutch Legal Opinion" means the legal opinion in the Agreed
108
Schedule Part 10
Form relating to the constitution and
capacity of the Purchaser;
"Employee" means persons employed by the Company or any
of the Subsidiaries including directors of
the Company at the date of this Agreement;
"Environment" means air, water and land, all living
organisms and natural and man-made
structures;
"Environmental Law" means any UK law in so far as it relates to
Environmental matters;
"Environmental matters" means the protection of human health, the
protection and condition of the
Environment, the condition of the workplace,
the generation, transportation, storage,
treatment, emission, deposit and disposal of
any Hazardous Substance or Waste;
"Event" includes any act, omission, Transaction or
circumstance (including any of such matters
provided for hereunder);
"FA" or "F(No.2)A" means the relevant Finance Act or Finance
(No.2) Act;
"Facilities Agreements" means all the facilities agreements made
between the Company, the Subsidiary, the
Royal Bank of Scotland plc and RBS Mezzanine
Limited including (but not limited to) those
senior and mezzanine facility agreements
dated 23rd October 1998 (as amended and/or
supplemented from time to time including by
way of first supplemental facility agreement
dated 31 March 2000, second supplemental
facility agreement dated 8 August 2001 and
third supplemental facility agreement dated
8th, 12th and 15th August 2003);
"Group" means the Company and the Subsidiaries and
"member of the Group" shall be construed
accordingly;
"Hazardous Substances" means any natural or artificial substance
(whether solid, liquid or gas and whether
alone or in combination with any other
substance or radiation), capable of causing
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Schedule Part 10
harm to any human or other living organism
or the Environment;
"holding company" shall have the meaning ascribed thereto by
the Companies ▇▇▇ ▇▇▇▇;
"IHTA" means the Inheritance Tax ▇▇▇ ▇▇▇▇;
"Intellectual Property" means all know-how, patents, utility models,
registered and unregistered trade marks,
service marks, registrable and registered
designs, applications for any of the
foregoing, trade, business and domain names,
rights in trade dress or get up, rights in
goodwill or to ▇▇▇ for passing off, unfair
competition rights, rights in designs,
unregistered design rights, copyright,
rights in the nature of copyright rights in
computer software, database rights,
topography rights, moral rights, rights in
confidential information (including know-how
and trade secrets) and any other industrial,
commercial or intellectual property rights;
"I-O Share Consideration shall have the meaning ascribed thereto in
Shares" Clause 3.1;
"I-O Fee Shares" means the shares issued to the parties and
in the numbers set out in Part 3D of the
Schedule in accordance with Clause 4.4.2;
"Leasehold Property" means the properties held on lease short
details of which are set out in Part 6 of
the Schedule;
"the Lease Reports" means the reports by the Vendors' Solicitors
on the leases of the Leasehold Property;
"Loan Notes" means those Loan Notes issued by the Company
details of which are set out in Part 3B of
the Schedule;
"Loan Note Consideration" means the sum of ONE MILLION SEVEN HUNDRED
AND TWENTY NINE THOUSAND ONE HUNDRED AND
SIXTY SEVEN POUNDS STERLING AND ONE ▇▇▇▇▇
((pound)1,729,167.01) being the total
consideration payable by the Purchaser for
the Loan Notes;
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Schedule Part 10
"Loan Note Holders" the holders named in column 1 of Part 3B of
the Schedule;
"Long-term Contract" means any agreement to which the Company is
a party or by which it can be bound or in
which it has an interest (including by way
of assignation or variation) at the
Completion Date and which the Company cannot
lawfully terminate within 6 months from the
date of this Agreement without giving rise
to a claim for breach of contract or
otherwise becoming liable to pay
compensation whether in terms of the
agreement or otherwise;
"MCR and RBS Covenants" means the covenants from ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and
▇▇▇▇ ▇▇▇▇▇▇▇, the Bank and RBS Mezzanine
Limited in the Agreed Form in respect of the
issue of the IO Consideration Shares;
"Management Accounts" means the consolidated unaudited balance
sheet and profit and loss account of the
Company and the Subsidiaries for the period
from the Accounts Date to 31 January 2004
"Material Asset" means a fixed asset of the Group with a
current value of more than(pound)25,000;
"Material Contract" means any agreement to which any Company of
the Group is a party or by which it can be
bound and which has a value or involves a
commitment or obligation on any of the
parties thereto in excess of (pound)50,000;
"Pension Schemes" means the following schemes or
arrangements:-
(1) the Concept Systems Limited
Directors' Pension Scheme,
established by a Trust Deed dated
25 and 27 September 1996;
(2) the Concept Systems Limited Group
Personal Pension Scheme consisting
of a number of individual personal
pension arrangements provided by
Norwich Union Life and Pensions
Limited in respect of the employees
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Schedule Part 10
and directors of the Company and/or
the Subsidiaries;
(3) the personal pension arrangements
in respect of Mr Alistair ▇▇▇▇▇ ▇▇▇
and ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, to
which the Company or any of the
Subsidiaries contributes and has
contributed;
(4) the Concept Systems Limited Group
Life Assurance Scheme, established
by a Deed of Declaration of Trust
dated 3 August 1998 and insured by
Phoenix Assurance plc.
"the Press Release" means the press release in the Agreed Form;
"the Purchaser's Group" means the group of companies comprising the
ultimate holding company of the Purchaser
and each of its and the Purchaser's
subsidiaries and subsidiaries undertakings
from time to time;
"the Purchaser's means Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ of One
Solicitors" ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"the Properties" means the Leasehold Property brief
particulars of which are set out in Part 6
of the Schedule;
"Registration Rights means the registration rights agreement
Agreement" between certain of the parties hereto in the
Agreed Form;
"Registrar's Letter" means the letter in the Agreed Form from the
registrars of the Parent confirming the
transfer of the Consideration Shares to the
Vendors and the transfer of the IO Fee
Shares;
"Relief" shall have the meaning ascribed thereto in
the Deed of Covenant;
"Sale Claim" means any claim which the Purchaser and/or
any person or persons to whom the benefit
(in whole or in part) of the Warranties
and/or the Deed of Covenant has been
transferred is entitled to bring against the
Managements Shareholders
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Schedule Part 10
under this Agreement and/or the Deed of
Covenant;
"Saving" shall have the meaning ascribed in the Deed
of Covenant;
"the Schedule" means the schedule comprising Parts 1 to 10
(inclusive) which is annexed and executed as
relative to the Agreement;
"Secretary's Certificate" means the certificate in the Agreed Form
from the Parent's company secretary in
relation to the issuance of the
Consideration Shares;
"Senior Management" means ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇;
"Share Cash Consideration" means the sum of(pound)927,975.25 , being
the total cash consideration payable by the
Purchaser for the Sale Shares;
"Subsidiaries" means Concept Systems Limited and Concept
ESOP Trustee Limited
"subsidiary" and shall have the respective meanings ascribed
"subsidiary undertaking" thereto by the Companies ▇▇▇ ▇▇▇▇;
"Substantial Capital means (pound)75,000;
Commitments"
"Substantial Capital means (pound)75,000;
Expenditure"
"TA 1988" means the Income and Corporation Taxes ▇▇▇
▇▇▇▇;
"Taxation" shall have the meaning ascribed thereto in
the Deed of Covenant;
"Taxation Authority" shall have the meaning ascribed thereto in
the Deed of Covenant;
"Tax Warranties" means the warranties set out in Part 4C of
the Schedule;
"TCGA" means the Taxation of Chargeable Gains ▇▇▇
▇▇▇▇;
"3i Loan" means the loan of(pound)10,848,750 made to
the Company as specified in Part 3C of the
Schedule;
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Schedule Part 10
"3i Loan Repayment " means the total sum of (pound)5,784,752.40
payable in accordance with Clause 4.4.3 as
full repayment of the 3i Loan;
"Third Party Claim" means a claim resulting from a claim made or
which may be made by a third party ;
"Transaction" shall have the meaning ascribed thereto in
the Deed of Covenant;
"US Legal Opinion" means an opinion in the Agreed Form from the
Purchaser's solicitors relating to the
issuance of the I-O Consideration Shares;
"VATA" means the Value Added Tax ▇▇▇ ▇▇▇▇;
"Vendor/Creditor means any hire purchase agreement, credit
Arrangement" sale agreement, conditional sale agreement
or other deferred purchase agreement or
agreement for the hiring or leasing of any
property or asset whatsoever to which the
Company or any of the Subsidiaries is a
party or by which it can be bound;
"the Vendors" means the Management Shareholders, the
Employee Shareholders, the Non Management
Shareholders and the 3i Vendors;
"the Vendors' Solicitors" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ W.S., of ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇;
"the Warranties" means the warranties set out in Clause 5 and
in Part 4(A) to (E) inclusive of the
Schedule;
"Waste" means all waste irrespective of whether it
is capable of being recycled or recovered or
has any value.
1.2 Words and expressions defined in the Companies ▇▇▇ ▇▇▇▇ shall (unless
specifically defined herein or unless the context shall otherwise
require) bear the same meanings in this Agreement.
1.3 Unless the context otherwise requires the masculine gender shall be
deemed to include the feminine and neuter and the singular number shall
be deemed to include the plural and vice versa.
1.4 The Clause headings, marginal notes, use of bold print, and contents
pages in and to this Agreement are for convenience of reference only
and shall not affect the construction or interpretation hereof.
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Schedule Part 10
1.5 For the purposes of Clause 5 and Part 4 of the Schedule where any
statement is qualified by the expressions "so far as the Management
Shareholders are aware" or "to the best of the knowledge, information
and belief of the Management Shareholders" or something similar, it
shall be deemed to mean any knowledge, information, belief or awareness
of any of the Management Shareholders as at the date of this Agreement,
after all reasonable enquiry by them to include enquiry of senior
employees of the Company and the Subsidiaries.
1.6 An "encumbrance" includes any interest or equity of any person
mortgage, charge, pledge, lien, assignation, hypothecation, servitude,
security interest, real burden, title retention or right of way.