EXHIBIT 99.1
Dated the 29/th/ day of March, 2000
(1) SYMMETRICOM LIMITED AND
SYMMETRICOM INC.
(3) SILICON SYSTEMS LIMITED
(4) KPMG SHELF COMPANY (NO 16) LIMITED
(IN THE COURSE OF CHANGING ITS NAME
TO SILICON SYSTEMS (UK) LIMITED)
-------------------------------------------------
BUSINESS SALE AGREEMENT
-------------------------------------------------
▇. ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇,
▇▇/▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇.
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION.................................................. 3
2. AGREEMENT TO SELL AND PURCHASE.................................................. 10
3. ASSETS AND LIABILITIES NOT INCLUDED IN THE SALE................................. 12
4. CONSIDERATION................................................................... 12
5. COMPLETION...................................................................... 13
6. VALUE ADDED TAX................................................................. 13
7. WARRANTIES...................................................................... 14
8. LIMITATIONS TO THE WARRANTIES................................................... 14
9. THE PREMISES.................................................................... 17
10. RISK............................................................................ 18
11. THE EMPLOYEES................................................................... 19
12. THE BUSINESS CONTRACTS.......................................................... 22
13. OBLIGATIONS OF THE PARTIES AFTER COMPLETION..................................... 24
14. BOOK DEBTS AND OBLIGATIONS OF THE PURCHASER AFTER COMPLETION.................... 24
15. CONFIDENTIALITY................................................................. 26
16. ANNOUNCEMENTS AND PUBLICITY..................................................... 27
17. RESTRICTIVE COVENANTS........................................................... 27
18. NOTICES......................................................................... 28
19. SUCCESSORS AND ASSIGNS.......................................................... 29
20. VARIATION....................................................................... 29
21. COSTS........................................................................... 29
22. SEVERANCE....................................................................... 29
23. FURTHER ASSURANCE............................................................... 29
24. WAIVERS......................................................................... 30
25. ENTIRE AGREEMENT................................................................ 30
26. COUNTERPARTS.................................................................... 30
27. COVENANTS OF SYMMETRICOM INC.................................................... 31
28. COVENANTS OF SSL................................................................ 31
1
29. POST-COMPLETION EFFECT.......................................................... 32
30. GOVERNING LAW AND JURISDICTION................................................... 32
SCHEDULE 1........................................................................... 34
----------
COMPLETION REQUIREMENTS........................................................... 34
SCHEDULE 2........................................................................... 36
----------
THE CUSTOMER CONTRACTS............................................................ 36
SCHEDULE 3........................................................................... 39
----------
THE EMPLOYEES..................................................................... 39
SCHEDULE 4........................................................................... 40
----------
PART A............................................................................ 40
THE BUSINESS INTELLECTUAL PROPERTY............................................. 40
Patents to be Transferred to SSL from Symmetricom.............................. 40
SCHEDULE 4........................................................................... 40
----------
PART B............................................................................ 40
IP LICENCES.................................................................... 40
PART C............................................................................ 40
REGISTERED TRADE MARKS......................................................... 40
SCHEDULE 5........................................................................... 41
----------
PART A............................................................................ 41
THE PREMISES................................................................... 41
PART B............................................................................ 42
(Terms and Conditions relating to the Assignment of the Premises).............. 42
SCHEDULE 6........................................................................... 51
----------
THE SUPPLIER CONTRACTS............................................................ 51
SCHEDULE 7........................................................................... 52
----------
PART A............................................................................ 52
EQUIPMENT AND MACHINERY........................................................... 52
SCHEDULE 7........................................................................... 55
----------
PART B............................................................................ 55
COMPUTER SYSTEM................................................................... 55
SCHEDULE 8........................................................................... 59
----------
COMPUTER CONTRACTS................................................................ 59
SCHEDULE 9........................................................................... 60
----------
WARRANTIES........................................................................ 60
PART A......................................................................... 60
GENERAL........................................................................ 60
SCHEDULE 9........................................................................... 67
----------
PART B............................................................................ 67
INTELLECTUAL PROPERTY.......................................................... 67
SCHEDULE 9........................................................................... 70
----------
PART C............................................................................ 70
COMPUTER SYSTEM................................................................ 70
THIS AGREEMENT is made the day of , 2000.
2
PARTIES:
(1) SYMMETRICOM LIMITED (registered in England and Wales under company number:
2605691) the registered office of which is at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ and SYMMETRICOM INC. (a corporation registered under
the laws of the state of California in the United States of America) the
registered office of which is at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
(hereinafter collectively called ("Vendor").
(2) SILICON SYSTEMS LIMITED (registered in Ireland under company number:
234615) the registered office of which is at ▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇ ("SSL").
(3) KPMG Shelf Company (No. 16) Limited (in the course of changing its name to
Silicon Systems (UK) Limited) (registered in Northern Ireland under company
number: NI37024) the registered office of which is at ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ("Purchaser").
WHEREAS:
(A) The Business is now and has for some time past been carried on by the
Vendor as beneficial owner.
(B) The Vendor wishes to sell and transfer or to procure the sale and transfer
where necessary of certain assets of the Business and the Purchaser to
purchase the Business as a going concern on the terms and conditions of
this Agreement and in particular but without limitation on the basis of the
Warranties.
(C) SSL is the owner of the entire issued share capital of the Purchaser and is
joining to this agreement for the purposes hereinafter appearing.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context requires otherwise, the following
words shall have the following meanings:
"Agreed Form" in the form agreed between the parties and initialled
by or on behalf of the parties.
3
"Assets" means the assets of the Business agreed to be sold
and purchased pursuant to this Agreement as
described in Clause 2.1;
"Book Debts" means all trade and other debts owing to the
Vendor on the Transfer Date;
"Business" means the business of the design, development and
manufacture of GPS products as carried on by the
Vendor in Northampton but for the avoidance of
doubt excluding the sales and technical support
functions which are carried out by persons other
than the Employees;
"Business Contracts" means the Customer Contracts, Supplier Contracts,
Computer Contracts and IP Licences;
"Business Day" means any day which is not a Saturday, a Sunday or
a bank or public holiday in England and Wales;
"Business Information" means all information, know-how and techniques of
the Vendor at Completion (whether or not
confidential and in whatever form held) which
relates to: (i) all or any part of the Business
and Assets; (ii) any products manufactured and/or
sold or services rendered by the Business; (iii)
any formulae, designs, specifications, drawings,
data, manuals or instructions used in the
Business; (iv) the operations, management,
administration, or financial affairs of the
Business (including any books of account, records
or returns, business plans or forecasts,
information relating to future business
development or planning information relating to
litigation or legal advice); and (v) the sale or
marketing of any of the products manufactured
and/or sold or services rendered by the Business,
including, but without limiting the generality of
the foregoing words, all customer names and lists,
sales and marketing information (including but not
limited to targets, sales and market share
statistics, market surveys and reports on
research);
4
"Business Intellectual
Property" means all Intellectual Property owned by the
Vendor or any member of the Vendor Group in
connection with the Business as carried on at the
Transfer Date (including, without limiting the
generality of the foregoing words, that specified
in Part A of Schedule 4);
"Completion" means the completion of the sale and purchase of
the Business and the Assets in accordance with
Clause 5 and Schedule 1;
"Computer Contracts" means all arrangements and agreements pursuant to
which any third party, including any member of the
Vendor Group, provides any element of the Computer
System to the Business including, without
limitation, the Agreements particulars of which
are set out in Part A of Schedule 8;
"Computer System" means all computer hardware, software and networks
owned or used by the Business including all
arrangements relating to the provision of
maintenance and support, security, disaster
recovery, facilities management, bureau and on-
line services to the Business the particulars of
which are set out in Part B of Schedule 8;
"Connected" means connected as defined in section 839, Income
and Corporation Taxes ▇▇▇ ▇▇▇▇;
"Consideration" means the total purchase price payable by the
Purchaser to the Vendor for the Business and
Assets as calculated in accordance with the
provisions of Clause 4;
"Customer Contracts" means all those contracts, engagements or orders
entered into on or prior to the Transfer Date by
or on behalf of the Vendor with customers for the
sale of goods or equipment or provision of
services by the Vendor in connection with the
Business which at the Transfer
5
Date remain to be performed in whole or in part by
the Vendor being those contracts, particulars of
which are set out in Schedule 2;
"Disclosure Letter" means a letter dated the date of this Agreement
from the Vendor to the Purchaser disclosing
exceptions to the Warranties;
"Employees" means the persons employed in the Business at the
date of this Agreement (whose names and addresses
are set out in Part A of Schedule 3 together with
certain particulars of their respective
employments);
"Equipment and
Machinery" means all equipment and machinery (to include the
Computer System) used by the Vendor in connection
with the business as set out in Schedule 7;
"Goodwill" means the goodwill and custom of the Vendor in
relation to the Business together with the
exclusive right for the Purchaser and its
successors and assigns to carry on the Business in
particular using the business name "NAVSTAR" and
respectively to represent themselves as carrying
on the Business in succession to the Vendor;
"Independent
Contractor" a person providing their services to the Business
under a contract for services;
"Intellectual Property" means patents, know-how, registered and
unregistered trade marks and service marks
(including any trade, brand or business names used
to differentiate the goods and services of the
Business (but for the avoidance of doubt excluding
"NAVSYMM" and "SYMMETRICOM" used alone or in
conjunction with any other term), registered
designs, design rights, utility models, copyright
(including all such rights in computer software,
the Business Information and any databases), moral
rights and topography rights (in each case for the
full period
6
thereof and all extensions and renewals thereof),
applications for any of the foregoing and the
right to apply for any of the foregoing in any
part of the world and any similar rights situated
in any country excluding domain names;
"Intellectual Property
Licence Agreement" an agreement of even date between the Purchaser
and Symmetricom Inc in the Agreed Form for the
licencing of certain Intellectual Property rights
to Symmetricom Inc.;
"IP Licences" means any licences, authorisations and permissions
in any form whatsoever whether express or implied,
pertaining to the use, enjoyment and exploitation
by (i) the Vendor or any member of the Vendor
Group of any Intellectual Property or Business
Information in connection with the Business as
carried on at the Transfer Date, and (ii) any
third party of any Business Intellectual Property
or Business Information (including without
limiting the generality of the foregoing, those
specified in Part B of Schedule 4;
"Liabilities" means all trade and other debts, accrued charges
and all other amounts owing by the Vendor in
connection with the Business and any amounts due
or recoverable in respect of Tax relating to the
Business attributable to periods or transactions
completed on or before the Transfer Date;
"Purchaser's Group" means the Purchaser, its holding companies and all
companies and undertakings which now or in the
future become holding companies, subsidiaries or
subsidiary undertakings of the Purchaser or any
such holding company.
"Purchaser's
Solicitors" means ▇▇ ▇▇▇▇▇▇▇, Solicitors, ▇▇/▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇;
"Premises" the premises more particularly described in
Schedule 5 Part A.
7
"Records" means the books, accounts, lists of customers,
credit reports, price lists, cost records, work
tickets, catalogues, advertising, all employee
records and all the other documents, papers and
records (however stored) (including VAT records)
of the Vendor relating to the Business or any of
the Assets;
"Restricted Business" the design, development and manufacture of GPS
Products as carried on by the Vendor in
Northampton and dealing in those products but
excluding the manufacture sale and dealing in of
finished products of which the above mentioned
products are components and excluding the
applications thereto on the timing and frequency
fields.
"Security Interest" means and includes an encumbrance, mortgage,
charge, assignment for the purpose of security,
pledge, lien, right of set-off, retention of title
or hypothecation for the purpose, or which has the
effect, of granting any security interest of any
kind whatsoever and any agreement, whether
conditional or otherwise, to create any of the
foregoing;
"Stock" means the stock-in-trade of the Business at the
Transfer Date including (without limitation) raw
materials, goods and other assets purchased for
resale, stores, component parts, work in progress,
together with finished products and packaging and
promotional material, all of which is owned or
agreed to be bought by the Vendor in connection
with the Business at the Transfer Date (including
any items which, although subject to reservation
of title by the sellers, are under the control of
the Vendor);
"Supplier Contracts" means all those contracts, engagements or orders
entered into on or prior to the Transfer Date by
or on behalf of the Vendor for the supply or sale
of goods to the Vendor in connection with and in
the
8
ordinary course of the Business which at the
Transfer Date remain to be performed in whole or
in part including, without limiting the generality
of the foregoing words, all those contracts,
particulars of which are set out in Schedule 6;
"Tax" or "Taxation" means all taxes, levies, duties, imposts, charges
and withholdings of any nature whatsoever or
wheresoever imposed and all penalties, charges and
interest relating thereto;
"Territory" United Kingdom;
"Transfer Date" means the date hereof;
"Transfer Regulations" means the Transfer of Undertakings (Protection of
Employment) Regulations 1981 (as amended);
"US$" United States dollars
"VAT" means Value Added Tax or any similar tax from time
to time replacing it and performing a similar
fiscal function;
"Vendor Group" means the Vendorany holding company of either of
them and all companies and undertakings which are
from time to time subsidiaries or subsidiary
undertakings of the Vendor or of any such holding
company;
"Vendor's Solicitors" means Ashurst ▇▇▇▇▇▇ ▇▇▇▇▇ of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
"Warranties" means the warranties set out in Clause 8 and
Schedule 9.
"Western Atlas Patent
Licence Agreement" means the Licence Agreement dated 1st March 2000
between Western Atlas International Inc. and
Symmetricom Inc.
"(pounds)" and "p" Sterling pounds and ▇▇▇▇▇.
"IR(pounds)" and "IRp" Irish pounds and ▇▇▇▇▇.
9
1.2 References to Clauses or Schedules are to Clauses or Schedules to this
Agreement and references to sub-clauses are to sub-clauses of the
relevant Clause, and the Schedules are deemed to be incorporated in this
Agreement, and a reference to "this Agreement" includes a reference to
the Schedules.
1.3 In this Agreement:
1.3.1 the clause headings are included for convenience only and shall
not affect the construction of this Agreement;
1.3.2 words denoting the singular shall include the plural and vice
versa;
1.3.3 words denoting any gender shall include a reference to each other
gender;
1.3.4 references to persons shall be deemed to include references to
natural persons, firms, partnerships, companies, corporations,
associations, organisations, foundations and trusts (in each case
whether or not having separate legal personality); and
1.3.5 words and expressions defined in the Companies ▇▇▇ ▇▇▇▇ shall,
where the context so admits, bear the same meanings in this
Agreement.
1.4 References in this Agreement to statutory provisions shall (where the
context so admits and unless otherwise expressly provided) be construed
as references to those provisions as respectively amended, consolidated,
extended or re-enacted as at the date of this Agreement and to any
orders, regulations, instruments or other subordinate legislation made
under the relevant statutes at the date hereof.
1.5 Any statement qualified by the expression "to the best of the knowledge,
information and belief of the Vendor" or "so far as the Vendor is aware"
or any similar expression shall be deemed to include an additional
statement that it has been made after the Vendor shall have made such
enquiry as shall be reasonable in the circumstances having regard to the
nature and subject matter of the statement.
2. AGREEMENT TO SELL AND PURCHASE
2.1 The Vendor shall sell with full title guarantee and transfer or procure
the sale and transfer (which expression shall where appropriate include
an assignment or novation) and the Purchaser shall purchase with effect
from the Transfer Date the Business as a going concern free from all
claims, liens, equities, charges and encumbrances except as otherwise
expressly and specifically herein provided together with the following
assets:
10
2.1.1 the Goodwill;
2.1.2 the Stock;
2.1.3 the benefit (subject to the burden) of the Business Contracts;
2.1.4 the Business Intellectual Property;
2.1.5 the Business Information;
2.1.6 the Equipment and Machinery;
2.1.7 the Vendor's leasehold interest in the Premises;
2.1.8 the Records save to the extent that the Vendor is legally
required to retain them; and
2.1.9 all the Vendor's rights against third parties including all
rights under any of the warranties, conditions, guarantees or
indemnities or under the Sale of Goods ▇▇▇ ▇▇▇▇ relating to
any of the Assets and the benefit of all sums to which the
Vendor is entitled from third parties other than insurers in
respect of damage to the Assets (save to the extent a
provision in respect of such damage is made in calculating the
Asset Value).
2.2 Title and risk in each of the Assets will pass to the Purchaser on
Completion.
2.3 The sale and purchase of each of the Assets is interdependent and shall
be completed simultaneously.
2.4 The asset value shall be apportioned between the Assets as follows:-
2.4.1 Stock US$1,000,000
2.4.2 Equipment and Machinery US$1,000,000
2.4.3 Business Contracts US$1
2.4.4 Business Information US$1
2.4.5 Goodwill US$352,828
2.4.6 Business Intellectual Property US$7,100,000
2.4.7 Leasehold Interest in the Premises US$1
2.5 For the avoidance of doubt the Purchaser shall be entitled to the benefit
subject to the burden of all contracts placed upon the Business by any
customer with the Vendor on or after Completion and any payment relating
to or connected with any such contract that is
11
hereafter received by the Vendor shall be paid to the Purchaser
forthwith.
3. ASSETS AND LIABILITIES NOT INCLUDED IN THE SALE
3.1 The following are expressly excluded from the sale and purchase of the
Business and the Assets:
3.1.1 the Book Debts;
3.1.2 the Liabilities;
3.1.3 the Vendor's accounts and accounting records which do not relate
exclusively to the Business; and
3.1.4 the benefit of any and all insurance claims and repayments arising
prior to the Transfer Date in relation to the Business.
3.2 Nothing in this Agreement shall pass to the Purchaser, or shall be
construed as acceptance by the Purchaser, of any liability, debt or other
obligation of the Vendor, other than as expressly set out in this
Agreement.
3.3 For the avoidance of doubt the Vendor shall discharge:
3.3.1 all outstanding Security Interests relating to any Asset and
subsisting at Completion; and
3.3.2 all supplier accounts relating to any Asset acquired by or any
service supplied to the Business (in each case prior to the date
hereof) whether such accounts are rendered prior to or after the
date hereof.
4. CONSIDERATION
4.1 The Consideration payable by the Purchaser to the Vendor at Completion
shall be US$9,452,831 discharged by the payment to Symmetricom Inc. by
way of wire transfer in the sum of US$6,452,831 Bank of America Account
#14840-04916, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ABA#▇▇▇▇▇▇▇▇▇ and
cheque in the sum of US$3,000,000.
4.2 Discharge of the consideration in the foregoing manner shall constitute
a full discharge of the Purchaser's obligation hereunder with regard to
the payment of the consideration and the Purchaser shall not be obliged
to see to the further application of the consideration.
4.3 Each of the Purchaser and SSL warrant that they have full power and
authority and have taken all necessary corporate action to enable them
12
effectively to enter into and perform this Agreement and all agreements
to be entered into pursuant to the terms of this Agreement and such
agreements when executed will constitute valid, binding and enforceable
obligations of the Purchaser and SSL in accordance with their respective
terms.
5 COMPLETION
5.1 Completion will take place in accordance with Schedule 1 at the offices
of the Purchaser's Solicitors immediately following the execution of
this Agreement when the business described in Schedule 1 will be
transacted.
6. VALUE ADDED TAX
6.1 It is intended that the Business shall be transferred to the Purchaser as
a going concern with effect from Completion and that the provisions of
Article 5(i) of the Value Added Tax (Special Provisions) Order 1995 (SI
1995/1268) and of Section 49 of the Value Added Tax Act, 1994 shall apply
to such transfer and the sale and purchase of the Assets and each party
shall use its reasonable endeavours to procure that the sale of the
Business is treated as neither a supply of goods nor a supply of services
under that Article.
6.2 The Vendor and the Purchaser shall within 30 days of Completion give
notice of such transfer to the appropriate office of H.M. Commissioners
of Customs and Excise in accordance with such regulations and
requirements as may be applicable.
6.3 The Purchaser undertakes to the Vendor that:
6.3.1 after Completion the Business will be carried on by it as a going
concern and the Assets will be used by it in carrying on the
Business or a business of the same kind; and
6.3.2 the Purchaser is already or will as a result of such transfer of
the Business immediately on Completion become a taxable person (as
defined in section 3 of the Value Added Tax Act 1994).
6.4 The Consideration is exclusive of VAT and in the event that H.M.
Commissioners of Customs and Excise determine that any VAT is payable on
the sale of the Business or the Assets, following receipt of a valid VAT
invoice, the Purchaser shall immediately pay to the Vendor an amount
equal to the VAT payable.
6.5 VAT payable in respect of goods and services supplied or deemed to be
supplied by the Vendor prior to the Transfer Date and all interest
payable and penalties attributable to such VAT shall be paid to H.M.
13
Commissioners of Customs and Excise by the Vendor and the Vendor shall be
entitled to retain any reimbursements and credits in respect of over
payment made prior to the Transfer Date.
6.6 The Vendor and the Purchaser intend that section 49 of the Value Added
Tax Act 1994 shall apply to the transfer of the Business under this
Agreement and accordingly:
6.6.1 on Completion the Vendor shall deliver to the Purchaser all
records referred to in such section 49;
6.6.2 the Vendor shall not make any request to H.M. Customs & Excise for
the records referred to in Clause 6.6.1 to be preserved by the
Vendor rather than the Purchaser; and
6.6.3 the Purchaser shall preserve the records referred to in Clause
6.6.1 for such period as may be required by law and during that
period permit the Vendor reasonable access to such records for the
purpose of inspection or copying (at the Vendor's expense).
6.7 The Vendor agrees to fully indemnify and keep indemnified the Purchaser
(for itself and as trustee for all other persons allocated with the
registration number previously allocated to the Vendor) in respect of any
VAT payable in relation to goods and services supplied or deemed to be
supplied prior to the Transfer Date and all interest payable and
penalties attributable to such VAT.
7. WARRANTIES
7.1 The Vendor warrants and undertakes to the Purchaser in the terms set out
in Schedule 9 and acknowledges that the Purchaser is entering into this
Agreement in reliance on the Warranties.
7.2 Save as otherwise expressly provided for in this Agreement and save as
expressed as being exceptions to the Warranties the Vendor shall be under
no liability in respect of an claim under the Warranties to the extent
that the facts or circumstances giving rise thereto are fairly disclosed
in the Disclosure Letter.
7.3 All sums payable by the Vendor to the Purchaser for breach of any of the
Warranties shall be paid free and clear of all deductions or withholdings
whatsoever, save only as may be required by law.
8. LIMITATIONS TO THE WARRANTIES
8.1 The aggregate liability of the Vendor in respect of all breaches of the
Warranties shall not exceed US$9,452,831.
8.2 Save in the case of fraud or wilful concealment the Vendor shall be
14
under no liability in respect of breaches of the Warranties unless the
aggregate liability of the Vendor in respect of all breaches of the
Warranties exceeds US$120,000, provided that if such amount is exceeded,
the Vendor shall (subject to Clause 8.1) be liable for the whole amount
claimed in respect of breaches of the Warranties and not only for the
excess.
8.3 The Purchaser shall not be entitled to make any claim against the Vendor
in respect of any breach of the Warranties unless the Purchaser has
served written notice of its intention to make such a claim (containing
all such details as are then reasonably available to the Purchaser) to
the Vendor at or before 5pm Greenwich Mean Time on the second anniversary
of Completion.
8.4 Where in relation to a claim for damages on account of a breach of the
Warranties which has been notified in writing prior to the date relevant
thereto, pursuant to Clause 8.3 hereof, proceedings are not served within
6 months of the service of the notice in question (unless previously
satisfied, settled or withdrawn) the Vendor shall cease to be liable
therefor.
8.5 The Vendor shall not be liable for breach of the Warranties for any claim
or claims thereunder:-
8.5.1 to the extent that the Purchaser actually recovers any loss or
damage suffered by it arising out of such claim under the terms of
any insurance policy for the time being in force less any costs
incurred by the Purchaser in making any such recovery;
8.5.2 to the extent that a claim or the event giving rise to the claim
would not have arisen but for any act, omission or transaction of
the Purchaser's Group otherwise than in the ordinary course of the
Business which the Purchaser's Group knew, or ought reasonably to
have known was likely to give rise to such claim;
8.5.3 to the extent that the Purchaser has agreed to be liable for any
defective products claim under Clause 10.4 which claim could
otherwise have given rise to a claim under the Warranties.
8.6 The Purchaser shall take such actions as the Vendor may reasonably
request to avoid, dispute, resist, appeal, delay, compromise, defend or
mitigate any claim which could give rise to a claim under the Warranties
or any matter which may give rise to such a claim on the basis that the
Purchaser shall be fully indemnified and secured by the Vendor as to all
costs and expenses which it may properly incur by reason of such action
and provided that the Purchaser may not be
15
obliged hereunder to do or to omit to do any act or thing which could
reasonably be expected to result in material change to its goodwill,
standing or reputation or to its relationship with customers, suppliers,
employees or regulatory or taxation authorities.
8.7 Nothing in this Agreement shall in any way restrict or limit the general
obligation of the Purchaser to mitigate any loss or damage which it may
suffer in consequence of any matter giving rise to a claim against the
Vendor under the Warranties.
8.8 The Purchaser has not formulated and is not in the process of formulating
any claim under the Warranties.
8.9 Any payment made by the Vendor under the Warranties shall be a reduction
to the Consideration.
8.10 No liability (whether in contract, tort or otherwise) shall attach to
the Vendor in respect of any claim under the Warranties to the extent
that the claim occurs wholly or partly out of or the amount thereof is
increased as a result of:-
(i) any change in the accounting principles or practices of the
Purchaser's Group introduced or having effect after the date hereof; or
(ii) any increase in the rates of taxation made after the date
hereof; or
(iii) any change in law or regulation or in its interpretation or
administration by the English courts, by the Inland Revenue or by any
other fiscal, monetary or regulatory authority in each case having
retrospective effect (whether or not having the force of law).
8.11 In the event that the Vendor at any time after the date hereof shall wish
to take out insurance against its liability hereunder the Purchaser
undertakes to provide such information as the prospective insurer may
reasonably require before effecting such insurance.
8.12 The Purchaser hereby confirms that it has no knowledge of any fact which
it is actually aware is likely to lead to claims against the Vendor under
the Warranties.
8.13 The Purchaser shall endeavour to provide the Vendor with the amount and
details of any claim arising out of the Warranties as soon as possible
after the Purchaser becomes aware of the matter or circumstances giving
rise to such claim and is aware that such matter or circumstances is
likely to give rise to a warranty claim.
16
8.14 Without prejudice to the provisions of sub-clauses 8.1 and 8.2 above
the aggregate liability of the Vendor in respect of all breaches of the
Intellectual Property Warranties set out at Part B of Schedule 9 hereto
shall not exceed US$6,000,000.
8.15 Without prejudice to the provisions of subclauses 8.1, 8.2 and 8.14 the
aggregate liability of the Vendor in respect of all breaches of the
Warranties in relation to each individual patent owned by the Vendor and
assigned to the Purchaser hereunder or pursuant hereto shall not exceed
US$1,000,000.
9. THE PREMISES
9.1 The leasehold interest in the Premises is sold subject to the conditions
and other provisions set out in Schedule 5 Part B.
9.2 Licence to Occupy
9.2.1 The Purchaser shall allow the Vendor to remain in occupation as Licensee
of the agreed portion of the premises for a period commencing on the date
hereof and continuing for up to 1 year and expiring not later than 31st
March 2001.
9.2.2 The Vendor shall pay the licensee fee in the sum of seven thousand pounds
((pounds)7,000) per month of occupation together with any VAT thereon to
the Purchaser.
9.2.3 Not to use the Premises for any use or purpose other than any use falling
within Class B1 and/or Class B8 of the Town and Country Planning (Use
Classes) Order 1987.
9.2.4 To maintain the Premises in no worse state of repair or condition than
that existing at the date hereof and to return the same to the Purchaser
in such condition on expiry or earlier determination of this Licence and
not to cause or permit any damage to be caused to any accesses and other
areas of the Premises from time to time designated by the Purchaser for
common use by the Vendor and occupiers of the Premises ("Common Parts")
at the Premises and forthwith to make good to the satisfaction of the
Purchaser any such damage which may be caused by the Vendor, its
employees, invitees or those under its control.
9.2.5 Not to use the Premises nor to permit to allow the same to be used so as
to cause or suffer any annoyance, nuisance, damage or disturbance to the
Premises or to the Purchaser or other occupiers and neighbouring
premises.
9.2.6 To observe and perform the regulations that the Purchaser may from time
to time impose.
17
9.2.7 This Licence is personal to the Vendor and shall not be capable of being
assigned, sub-let or dealt with in any way either in whole or in part and
not to share use or occupation of the Premises with any other person or
company whatsoever nor to agree to do so.
9.2.8 The Purchaser gives no warranty that the Premises are fit for any use
hereby permitted or any other use either as regards the physical state,
condition or suitability thereof or as regards any legal right to use the
same for any such purpose.
9.2.9 Not to obstruct the Common Parts or make them dirty or untidy or leave
any rubbish on them.
9.2.10 The Vendor must not display any signs or notices at the Premises without
the prior written consent of the Purchaser.
10. RISK
10.1 All profits and receipts of the Business earned or accrued prior to the
Transfer Date (including profits earned or receivable in respect of work
in progress invoiced prior to the Transfer Date or where a payment
milestone has been reached which entitled the Vendor to issue an invoice
prior to the Transfer Date) and all losses and outgoings (except to the
extent that such outgoings are in respect of invoices received after the
Transfer Date relating to Stock transferred to the Purchaser) incurred or
payable by the Business up to the Transfer Date shall belong to, and be
paid and discharged by, the Vendor.
10.2 All profits and receipts of the Business and all losses and outgoings
incurred or subject to 10.1 payable by the Business as from the Transfer
Date shall belong to, and be paid and discharged by, the Purchaser.
10.3 Nothing in this Agreement shall have the effect of making the Purchaser
liable in any way under any guarantees or warranties given by the Vendor
to any customer in relation to goods sold or services rendered by the
Vendor prior to the Transfer Date, the liability for which shall remain
absolutely with the Vendor.
10.4 Notwithstanding the provisions of Warranty 9 in Part A of schedule 9 and
the fact that the Vendor is liable to third parties in respect thereof,
the Purchaser agrees to deal with any product liability claims which may
arise in relation to products sold by the Vendor in the Business prior to
Completion, but only to the extent that the cost reasonably incurred the
Purchaser of doing so shall not exceed Stg(pounds)30,000. To the extent
that it becomes apparent that the reasonable cost to the Purchaser of
continuing to do so shall cause the said cost to exceed Stg(pounds)30,000
the parties shall consult together as to whether the
18
Purchaser should continue to deal with such claims, provided that for the
avoidance of doubt, the Purchaser shall not in any event have any
responsibility to do so. The Vendor shall indemnify and hold harmless the
Purchaser and its successors in title against all liabilities, actions,
proceedings, costs, damages, claims and demands properly payable of
whatever nature relating to and payable in respect of such claims in
excess of the amount of Stg(pounds)30,000 referred to above. The
Purchaser shall keep the Vendor informed on a regular basis as to the
likelihood of such amount of Stg(pounds)30,000 being exceeded and shall
not incur any cost for which the Vendor is liable under this Clause
without the prior consent of the Vendor. In the event of there being
product liability claim(s) in excess of Stg(pounds)30,000 the Purchaser
shall be entitled to conduct the defence of such claims itself. The
Vendor shall be entitled to request the Purchaser to provide reasonable
assistance and the Purchaser will do so subject to the Vendor providing
it with a satisfactory indemnity in respect of all costs, liabilities,
claims, damages and expenses that it may suffer or incur including an
award of costs.
10.5 To the extent that either party receives after the date hereof any
payment to which the other party is entitled pursuant to the provisions
of Clauses 10.1 or, 10.2 such party shall record such payment separately
in its books and shall pay the same to the other party within seven
Business Days of receipt.
11. THE EMPLOYEES
11.1 The parties acknowledge and agree that the sale and purchase pursuant to
this Agreement will constitute a relevant transfer for the purposes of
the Transfer Regulations and that it will not operate so as to terminate
any of the contracts of employment of the Employees and such contracts
shall be transferred to the Purchaser pursuant to the Transfer
Regulations with effect from the Transfer Date.
11.2 The Vendor undertakes to the Purchaser (for itself and as trustee for any
Subsidiary or holding company of the Purchaser to which the whole or any
part or parts of the Business is transferred):
11.2.1 to pay to the Employees all sums to which they are entitled up
to and including the Transfer Date (whether arising under
common law, statute, equity or otherwise) including, without
limitation, all wages and salaries, sick pay, maternity pay,
any liability to taxation, accrued holiday pay, expenses,
accrued bonus, commission and other sums payable in respect of
any period up to the Transfer Date; and
11.2.2 to comply in all respects with its obligations under
Regulation 10 of the Transfer Regulations (and to provide to
the Purchaser such information that the Purchaser may
19
request in writing in order to verify such compliance);
11.2.3 fully to indemnify and keep fully indemnified the Purchaser
and all other owners referred to in Clause 11.2 against all
losses, damages, costs, actions, awards, penalties, fines,
proceedings, claims, demands, liabilities (including without
limitation any liability to Tax), and expenses (including,
without limitation, legal and other professional fees and
expenses) which the Purchaser or any of such owners may
suffer, sustain, incur, pay or be put to by reason or on
account of or arising from:
(a) any failure by the Vendor to comply with its
obligations under Clause 11.2;
(b) any claim or other legal recourse by all or any of the
Employees in respect of any fact or matter concerning
or arising from employment with the Vendor or any
omission of the Vendor prior to the Transfer Date;
(c) any claim or other legal recourse by any trade union or
staff association recognised by the Vendor or employee
representatives in respect of all or any of the
Employees arising from or connected with the failure by
the Vendor to comply with its legal obligations to such
trade union or staff association or employee
representatives;
(d) the employment or termination of employment by the
Purchaser following the Transfer Date of any agent or
contractor or employee of the Vendor (other than the
Employees) whose employment is transferred to the
Purchaser by the Transfer Regulations provided that the
Purchaser shall be required to terminate on such a
person within 7 days of becoming aware of the fact that
his or her employment has so transferred by operation
of the Transfer Regulations;
(e) any act or omission done or omitted to be done by the
Vendor in relation to the Employees or any other
employee of the Vendor which by virtue of the Transfer
Regulations is deemed to be an act or omission of the
Purchaser; and
(f) without prejudice to sub-clause (e) above, any claim or
demand or other legal recourse against the Purchaser by
any other person or agent or employee or contractor of
the Vendor who claims (whether correctly or not) that
the Purchaser has inherited liability from the Vendor
in respect of them by virtue
20
of the Transfer Regulations.
11.3 If any contract of employment or collective agreement not disclosed to
the Purchaser in the Disclosure Letter shall have effect as if originally
made between the Purchaser and any of the Employees or a trade union as a
result of the provisions of the Transfer Regulations:
11.3.1 the Purchaser may, upon becoming aware of the application of
the Transfer Regulations to any such contract of employment or
collective agreement, terminate such contract or agreement
forthwith; and
11.3.2 in the event that the Purchaser terminates such agreement
pursuant with Clause 11.3.1 above the Vendor shall indemnify
and shall keep indemnified the Purchaser against all losses,
damages, costs, actions, proceedings, claims, demands,
liabilities (including, without limitation, any liability to
Taxation) and expenses (including, without limitation, legal
and other professional fees and expenses) which the Purchaser
may suffer, incur, sustain, pay or be put to by reason or on
account of or arising out of such termination or arising from
such contracts of employment or collective agreement before
and after Completion if such is not terminated by the
Purchaser.
11.4 Without prejudice to the other provisions of this Clause, the Vendor
shall, at its own expense, give the Purchaser such assistance as the
Purchaser may reasonably require to contest any claim by any person
employed in the Business at or prior to Completion resulting from or in
connection with this Agreement.
11.5 The Purchaser undertakes to the Vendor (in respect of itself and as
trustee for the Vendor Group) to comply in all respects with its
obligations under Regulation 10 of the Transfer Regulations.
11.6 The Purchaser shall indemnify and shall keep indemnified the Vendor and
each member of the Vendor Group against all losses, damages, costs,
actions, proceedings, claims, demands, liabilities (including, without
limitation, any liability to Taxation) and expenses (including, without
limitation, legal and other professional fees and expenses) which the
Vendor or such member of the Vendor Group may suffer, incur, sustain, pay
or be put to by reason or on account of or arising from or in respect
of:.
(a) any failure by the Purchaser to comply with its obligations under
Regulation 10 of the Transfer Regulations;
(b) any act or omission or proposed act or omission of the Purchaser
in relation to the Employees after the Transfer Date.
21
12. THE BUSINESS CONTRACTS
12.1 Subject to the provisions of Clauses 10.3 and 10.4 nothing in this
Agreement shall make the Purchaser liable in respect of anything done
prior to Completion in relation to the carrying on of the Business prior
to Completion. The Vendor shall jointly and severally indemnify and hold
harmless the Purchaser and its successors in title against all outgoings,
debts, liabilities, obligations, actions, proceedings, costs, damages,
claims and demands of whatever nature relating to and payable in respect
of the Business or the Assets or any other liability (which liability
shall include all losses, or costs, claims, expenses and damages and
including but not limited to legal and other professional fees and
expenses) which the Purchaser or its successors in title may incur or
suffer as a result of anything so done or omitted to be done by the
Vendor in relation to the Business or any defects or alleged defects in,
goods supplied or services provided prior to the Transfer Date (including
but not limited to and in particular any claim under any warranty or
under the Sale of Goods Act, 1979 or the Sale and Supply of Goods Act,
1994) and in particular (notwithstanding anything else contained in this
Agreement) arising from:-
12.1.1 any failure by the Vendor in the performance of any of the
obligations of the Vendor falling due on or before Completion
under any of the Business Contracts; and
12.1.2 any act, default or transaction of the Vendor in respect of the
Business before Completion and so that where there shall be any
claims by any third parties in respect of products delivered or
services rendered prior to Completion the same shall be met in
full by the Vendor.
12.2 Nothing in this Agreement shall make the Vendor liable in respect of
anything done after Completion in relation to the carrying on of the
Business after Completion. The Purchaser and SSL shall jointly and
severally indemnify and hold harmless the Vendor and its successors in
title against all outgoings, debts, liabilities, obligations, actions,
proceedings, costs, damages, claims and demands of whatever nature
relating to and payable in respect of the Business or the Assets or any
other liability (which liability shall include all losses or costs,
claims, expenses and damages and including but not limited to legal and
other profession fees and expenses) which the Vendor or its successor in
title may incur or suffer as a result of anything so done or omitted to
be done by the Purchaser in relation to the Business or any defects or
alleged defects in, goods supplied or services provided after the
Transfer Date (including but not limited to and in particular any claim
under any warranty or under the Sale of Goods Act, 1979 or the Sale and
Supply of Goods Act, 1994) and in particular (notwithstanding anything
else contained in this Agreement) arising
22
from:-
12.2.1 any failure by the Purchaser in performance of any of the
obligations of the Purchaser after Completion under any of the
Business Contracts; and
12.2.2 any act, default or transaction of the Purchaser in respect of the
Business after Completion and so that where there shall be claims
by any third parties in respect of products delivered or services
rendered after Completion the same shall be met in full by the
Purchaser and/or SSL.
12.3 The Vendor undertakes with effect from the Transfer Date to assign to the
Purchaser or to procure the assignment to the Purchaser of all the
Business Contracts which are capable of assignment without the consent of
other parties.
12.4 In so far as any of the Business Contracts are not assignable to the
Purchaser without the agreement of or novation by or consent to the
assignment from another party this Agreement shall not constitute an
assignment or attempted assignment if such assignment or attempted
assignment would constitute a breach of such Business Contracts. In the
event that consent or novation is required to such assignment:
12.4.1 the Vendor at the Purchaser's request shall use all reasonable
endeavours with the co-operation of the Purchaser to procure such
novation or assignment as aforesaid;
12.4.2 unless and until any such Business Contract shall be novated or
assigned as aforesaid the Vendor shall continue its corporate
existence and shall hold such Business Contract in trust for the
Purchaser and its successors in title absolutely and the Purchaser
shall (if such sub-contracting is permissible and lawful under the
Business Contract in question) as the Vendor's sub-contractor
perform all the obligations of the Vendor under such Business
Contract;
12.4.3 unless and until any such Business Contract shall be novated or
assigned the Vendor will (so far as it lawfully may) give all such
assistance to the Purchaser as the Purchaser may reasonably
require to enable the Purchaser to enforce its rights under such
Business Contract and (without limitation) will provide access to
all relevant books, documents and other information in relation to
such Business Contract as the Purchaser may require from time to
time.
12.5 If such consent or novation is refused or otherwise not obtained on terms
reasonably satisfactory to the Purchaser within 60 Business Days of the
Transfer Date the Vendor shall indemnify and keep indemnified the
Purchaser from and against all damages, costs,
23
actions, proceedings, claims, demands, liabilities and expenses
(including, without limitation, legal and other professional fees and
expenses) which the Purchaser may suffer, sustain, incur, pay or be put
to by reason or on account of or arising from third party claims
including claims by the other party or parties to such Business Contract.
13. OBLIGATIONS OF THE PARTIES AFTER COMPLETION
13.1 The Vendor undertakes to pass to the Purchaser forthwith upon receipt any
orders or enquiries in relation to the Business which it may receive at
any time after Completion.
13.2 The Purchaser undertakes to pass to the Vendor forthwith upon receipt any
order or enquiries in relation to the Retained Business which it may
receive at any time after Completion.
13.3 Not later than two Business Days after the Transfer Date the Vendor shall
send to each of the Employees a letter, in the Agreed Form, explaining
that his employment has been transferred to the Purchaser pursuant to the
Transfer Regulations.
13.4 During the period of six years after Completion (and without prejudice to
any of the Warranties) if any Business Information is not in the
possession of the Purchaser or readily discoverable by the Purchaser but
is in the possession or under the control of or available to the Vendor
or any another member of the Vendor Group the Vendor shall procure that
such Business Information is provided to the Purchaser promptly on
request.
13.5 During the period of six years after Completion the Purchaser shall allow
the Vendor reasonable access to such Business Information as may be
required by the Vendor to comply with its obligations under law and to
any regulatory obligations applicable to it.
14 BOOK DEBTS AND OBLIGATIONS OF THE PURCHASER AFTER COMPLETION
14.1 The Vendor and the Purchaser shall cause to be prepared from the
accounting records of the Business a list of the Book Debts showing
(inter alia) the names of the debtors and the amounts owing to the Vendor
by each of the relevant debtors.
14.2 Notwithstanding that the Book Debts are excluded from the Assets hereby
agreed to be sold the Purchaser agrees that it will as agent for the
Vendor use all reasonable endeavours at the Vendor's expense to collect
the Book Debts (to the extent not so far collected) and will hold the
sums of money representing the same upon trust for the
24
Vendor subject to the following terms and conditions or such other terms
conditions or arrangements as may be agreed from time to time in writing
between the Vendor and the Purchaser:
14.2.1 the Purchaser shall not without the prior written consent of the
Vendor (not to be unreasonably withheld or delayed) effect any
settlement compromise or release any claim in respect of any of
the Book Debts nor without such consent institute, carry on,
defend, compromise, abandon or submit to judgment in any legal
proceedings or join in and submit to arbitration or give security
or indemnities for costs, pay any sum of money into court or
obtain payment of money lodged in court;
14.2.2 the Purchaser, if so requested by the Vendor but only if so
requested by the Vendor shall discharge as agent for and on
behalf of the Vendor the debts incurred by the Vendor to its
Creditors as at the Transfer Date as and when such debts fall due
out of the proceeds of the Book Debts so collected in so far as
the same are sufficient for such purposes;
14.2.3 subject to sub-clause 14.2.2, the Purchaser shall report and
account to the Vendor at the end of the calendar month following
Completion and thereafter at monthly intervals for all sums of
money received and discharged pursuant to sub-clause 14.2.2 by it
as aforesaid up to a date not more than five Business Days
earlier than the date of the report and shall concurrently with
each such report submit written evidence in support of the
receipts in such form as the Vendor may reasonably require
together with a cheque for the balance (if any) of the money then
held by the Purchaser upon trust as aforesaid;
14.2.4 if it becomes apparent that recovery of any of the Book Debts is
not likely to be possible within a reasonable period unless legal
proceedings are instituted the Purchaser will advise the Vendor
in writing and furnish the Vendor with particulars of the steps
taken by the Purchaser to effect recovery. Where the debtor in
question is a continuing debtor of the Business after the
Transfer Date the Vendor shall consult fully with the Purchaser
before instituting any legal proceedings;
14.2.5 on the expiration of 12 months from the Transfer Date the
Purchaser shall deliver to the Vendor a statement of the
respective amount(s) of the Book Debts so collected net of any
amounts expended by the Purchaser in discharging debts due to
Creditors pursuant to sub-clause 14.2.2 and thereupon the
Purchaser's obligations under the provisions of this Clause 14.2
shall terminate absolutely save that the Purchaser shall account
to the Vendor for any sum subsequently
25
recovered in respect of any of the Book Debts remaining unpaid at
the expiration of such period;
14.2.6 the Purchaser shall for a period of 24 months from the Transfer
Date give to the Vendor reasonable access to its books and
records in relation to the collection of the Book Debts; and
14.2.7 subject to any express intention to the contrary on the part of
the debtor any money received by the Purchaser in the course of
collecting any Book Debts from a person who is also indebted to
the Purchaser shall be deemed to have been paid in or towards the
discharge of the oldest debt.
15. CONFIDENTIALITY
15.1 Each of the Vendor and Symmetricom Inc. shall keep confidential and shall
not at any time disclose or make known to anyone whatsoever or use for
their own or any other person's benefit all Business Information, except
as may be required by any legal or regulatory authority to which the
Vendor is subject.
15.2 The Purchaser shall and shall procure that every member of the
Purchaser's Group shall keep confidential and not disclose or make known
to any one whatsoever nor use for its or any other person's benefit any
business information which may have been disclosed to the Purchaser or
which may otherwise have come to the attention of the Purchaser and which
relates to the business or affairs of the Vendor Group, except as may be
required by any legal or regulatory authority to which the Purchaser is
subject.
15.3 The obligations imposed by the provisions of sub-clauses 15.1 and 15.3
shall not apply to the extent that the business information in question:
15.3.1 is or comes into the public domain without fault on the part of
the party to whom the same was disclosed, or to whose attention
the same has come;
15.3.2 was already known to the relevant party at the time the same, was
disclosed to it or came to its attention; or
15.3.3 has been lawfully disclosed to the relevant party by a third
party.
15.3.4 to the extent that disclosure of any such information is
necessary to be included in documentation required to be issued
by the Purchaser to comply with regulatory obligations applicable
to it.
26
16. ANNOUNCEMENTS AND PUBLICITY
No announcement or circular or other publicity in connection with the
subject matter of this Agreement (save as required to enforce the parties
obligations hereunder or by law or the rules and regulations of the any
relevant stock exchange or other regulatory authority and in such
circumstances the disclosing party shall consult with the other as to
content) shall be made by the Vendor or the Purchaser except with the prior
written approval of the Vendor and the Purchaser such approval not to be
unreasonably withheld or delayed.
17. RESTRICTIVE COVENANTS
17.1 The Vendor covenants with the Purchaser that neither it nor any member of
the Vendor Group will either on its or their own account or in conjunction
with or on behalf of any person or persons whether directly or indirectly
for the period of:
17.1.1 2 years from Completion, supply products or provide services for
any person, firm or company who or which was either at Completion
or during the period of 12 months prior to Completion a client or
customer of the Business where the supply of such product or
provision of such services forms part of the Restricted Business;
17.1.2 2 years from Completion, solicit or endeavour to solicit the
custom of any person, firm or company who or which was either at
Completion or during the period of 12 months prior to Completion
had been a client or customer of the Business, for the supply of
products or the provision of services that form part of the
Restricted Business;
17.1.3 2 years from Completion, solicit or entice away or endeavour to
solicit or entice away from the Purchaser any officer, manager,
servant or other employee who was either at Completion or during
the period of six months prior to Completion engaged in the
Business whether or not such person would commit a breach of his
contract of employment or contract for services by reason of
leaving service or engagement with the Purchaser; or
17.1.4 2 years from Completion, carry on or be engaged, concerned or
interested in the Territory in the Restricted Business (other
than as a holder of securities listed on a recognised stock
exchange or provided that such holding shall not exceed five per
cent of the class of securities of which the said holding forms
part).
27
Provided that nothing in this Clause shall preclude or restrict:-
(i) investment of any member of the Vendor Group in SSL; or
(ii) the trading by any member of the Vendor Group in any goods or
services purchased from the Purchaser hereafter; or
(iii) the conduct by the any member of the Vendor Group of such business
as may be permitted by the terms of the Intellectual Property
Licence Agreement
18. NOTICES
18.1 Any notice required to be given under this Agreement shall be in writing
signed by (or by some person duly authorised by) the person giving it and
may be served by leaving it or sending it by facsimile, pre-paid recorded
delivery to the address of the relevant party set out in sub-clause 18.2.
Any notice so served shall be deemed to have been received:
18.1.1 if delivered personally, at the time of delivery;
18.1.2 in the case of a notice sent by pre-paid recorded delivery, 48
hours after the date or posting; or
18.1.3 in the case of a notice sent by facsimile copier or other
electronic means of communication, if the notice was sent during
the business hours of the addressee then on the day of
transmission, and otherwise on the next following Business Day.
For the purposes of this Clause "business hours" means the hours of 9.00
a.m. to 5.30 p.m. local time in the country of the addressee.
18.2 Any notice required to be given under this Agreement shall be sent:
18.2.1 to the Vendor at both: ▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Facsimile No: 0044 1483 510319
For the attention of: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
to Symmetricom Inc at: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇
Facsimile No: ▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of: CFO
28
18.2.2 to SSL and/or the Purchaser at: ▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Facsimile No: 00 353 1 402 5711
For the attention of: Chief Operations Officer
or to such other address or facsimile number as is notified in writing
from time to time by the Vendor or the Purchaser or SSL (as the case may
be) to the other parties to this Agreement.
19. SUCCESSORS AND ASSIGNS
This Agreement shall be assignable by the Purchaser to any member of the
Purchaser's Group for so long as it so remains and on any assignee
ceasing to be a member of the Purchaser's Group shall be assigned to such
a member. Save as aforesaid this Agreement shall not be assignable.
20. VARIATION
No variation of this Agreement shall be effective unless made in writing
and signed by or on behalf of each of the parties.
21. COSTS
The parties shall pay their own costs and expenses in relation to the
preparation, execution and carrying into effect of this Agreement.
22. SEVERANCE
If at any time any provision of this Agreement is or becomes invalid or
illegal in any respect, such provision shall be deemed to be severed from
this Agreement but the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected or impaired
thereby.
23. FURTHER ASSURANCE
The Vendor shall do, execute and perform and shall procure to be done,
executed and performed all such further acts, deeds, documents and things
as the Purchaser may reasonably require from time to time to give full
effect to the terms of this Agreement, including but not limited to duly
executed written assignments to the Purchaser in respect of all the
Business Intellectual Property.
29
24. WAIVERS
A failure by any party to exercise and any delay, forbearance or indulgence
by any party in exercising any right, power or remedy under this Agreement
shall not operate as a waiver of that right, power or remedy or preclude
its exercise at any subsequent time or on any subsequent occasion. The
single or partial exercise of any right, power or remedy shall not preclude
any other or further exercise of that right, power or remedy. No custom or
practice of the parties at variance with the terms of this Agreement shall
constitute a waiver of the rights of any party under this Agreement. The
rights, powers and remedies provided in this Agreement are cumulative and
not exclusive of any rights, powers or remedies provided by law.
25. ENTIRE AGREEMENT
25.1 This Agreement, the Disclosure Letter, the documents in the Agreed Form and
all agreements entered, or to be entered into, pursuant to the terms of
this Agreement or entered into between the parties in writing and expressly
referring to this Agreement:
25.1.1 together constitute the entire agreement and understanding
between the parties with respect to the subject matter of this
Agreement; and
25.1.2 (in relation to such subject matter) supersede all prior
discussions, understandings and agreements between the parties
and their agents (or any of them) and all prior representations
and expressions of opinion by any party (or its agent) to any
other party (or its agent).
25.2 Each of the parties acknowledges that it is not relying on any statements,
warranties or representations given or made by any of them in relation to
the subject matter hereof, save those expressly set out in this Agreement,
and that it shall have no rights or remedies with respect to such subject
matter otherwise than under this Agreement save to the extent that they
arise out of the fraud or fraudulent misrepresentation of any party.
26. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, and which together shall constitute one and the
same Agreement. Unless otherwise provided in this Agreement, this Agreement
shall become effective and be dated (and each counterpart shall be dated)
on the date on which this Agreement (or a counterpart of this Agreement) is
signed by the last of the parties
30
to execute this Agreement or, as the case may be, a counterpart thereof.
27. OBLIGATIONS JOINT AND SEVERAL.
27.1 The obligations of Symmetricom Limited and Symmetricom Inc. as the Vendor
under this Agreement are joint and several in all respects.
28. COVENANTS OF SSL
28.1 As further consideration for the Vendor entering into the Agreement and
without prejudice to any of the other obligations specifically undertaken
by SSL under this Agreement, SSL hereby unconditionally and irrevocably
guarantees to the Vendor, its successors and assigns the due, complete and
punctual performance by the Purchaser (which term shall in this clause 28.1
and clauses 28.2 to 28.7 inclusive mean and include each and every
assignee, purported assignee and subsequent generation of assignee and
purported assignee of the whole or any part or parts of the Agreement from
time to time) of its obligations under this Agreement and any
documentation, agreement or obligation executed or entered into by the
Purchaser thereunder (the "Agreements"). If the Purchaser shall fail
punctually and completely to perform any of its obligations under the
Agreements, SSL shall forthwith procure the same to be performed.
28.2 SSL agrees that the Vendor shall be entitled to enforce this clause 28 as
if SSL were a primary obligor and without making any demand on or taking
proceedings against the Purchaser and shall not be required before
enforcing this clause 28 to pursue, execute, utilise or exhaust any other
right, remedy or security which it may have. This clause 28 shall continue
in full force and effect until all the liabilities and obligations of the
Purchaser hereunder have been fully performed and discharged.
28.3 This clause 28 shall not be affected in any way by any time or indulgence
granted to the Purchaser or by any variation, postponement, waiver,
compromise or release of any of its obligations under the Agreements.
28.4 This clause 28 shall not be affected by the bankruptcy, liquidation or
dissolution of the Purchaser, the appointment of a receiver over the
undertaking, property or assets of the Purchaser, the appointment of an
administrator in respect of the Purchaser or by any alteration in any
constitution of the Purchaser or by reason of any change in the interest of
SSL in the Purchaser. In the event of any such matters or other act or
event in consequence of which the Purchaser loses its separate legal
identity, SSL shall become liable for the obligations of
31
the Purchaser under the Agreements as if it were a primary obligor.
28.5 This clause 28 shall be of continuing nature and shall not be considered as
wholly or partially satisfied by the payment or liquidation at any time or
times hereafter of any sum or sums of money for the time being due to the
Vendor but shall extend to cover and be a security for all future sums of
money at any time owing to the Vendor under the Agreements notwithstanding
any such payment or liquidation.
28.6 This clause 28 shall not be affected or impaired by reason of any fact or
event (whether similar to any of the foregoing or not) which in the absence
of this provision would or might constitute or afford a legal or equitable
discharge or release of or a defence to a guarantee (other than an express
written release by the Vendor of SSL's obligations).
28.7 As a separate and independent obligation SSL agrees that any sum or sums of
money intended to be covered by this clause 28 which may not be recoverable
from the Purchaser whether by reason of any legal limitation, disability or
incapacity, liquidation, bankruptcy or administration of the Purchaser or
any other fact or circumstance and whether known (actually or
constructively) to the Vendor or not, but which would have been recoverable
from SSL if SSL was the sole or principal debtor in respect thereof in
place of the Purchaser shall be recoverable from SSL as sole or principal
debtor in respect thereof.
29. POST-COMPLETION EFFECT
This Agreement shall remain in full force and effect after and
notwithstanding Completion in respect of all obligations, contained in this
Agreement which have not been done, observed or performed at or prior to
Completion and all warranties, and indemnities contained in this Agreement
(including the Warranties) shall continue in full force and effect after
and notwithstanding Completion and the parties may take action for any
breach or non-fulfilment of any of them after Completion.
30. GOVERNING LAW AND JURISDICTION
30.1 This Agreement (and any dispute, controversy, proceedings or claim whatever
nature arising out of or in any way relating to his Agreement or its
formation) shall be governed by and construed in all respects in accordance
with English law exclusively.
30.2 Each of the parties to this Agreement irrevocably agrees that the courts of
England shall have non-exclusive jurisdiction to hear and decide any suit
action or proceedings.
30.3 Each party irrevocably waives any objection which it might at any
32
time have to the courts of England being as the forum to hear and decide
any proceedings and to settle any disputes and agrees not to claim that the
courts of England are not a convenient or appropriate forum for any such
proceedings or disputes and further irrevocably agrees that a judgement in
any proceedings or disputes brought in any referred to in this Clause 30
shall be conclusive and binding upon the parties and may be enforced in the
courts of any other jurisdiction.
30.4 Without prejudice to any other permitted mode of service the parties agree
that service of any writ, notice or other document ("Documents") for the
purpose of any proceedings begun in England shall be duly served upon it if
delivered personally or sent by registered post, in the case of:-
(a) Symmetricom Inc. to the address in Clause 18.2.1 for the Vendor;
(b) the Purchaser at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇;
(c) to SSL at the address at paragraph (b) above with a copy of such Documents
being sent simultaneously to its address set out in Clause 18.2.3 but
without prejudice to the validity and effectiveness of the service of the
Documents on SSL at the address set out in paragraph (b) above.
or such other person and address in England and/or Wales as a party shall
notify the others in writing from time to time.
AS WITNESS the hands of the parties to this Agreement or their duly authorised
representatives on the date hereinbefore written.
33
SIGNED by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ )
for and on behalf of )
SYMMETRICOM LIMITED )
in the presence of: )
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
SIGNED by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ )
for and on behalf of )
SYMMETRICOM INC. )
in the presence of )
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
SIGNED by )
for and on behalf of )
SILICON SYSTEMS LIMITED )
in the presence of: )
SIGNED by )
for and on behalf of )
KPMG SHELF COMPANY (NO.16) LIMITED )
in the presence of )
34