Exhibit 2.7 Investment/Shareholders Agreement, by and among
Xxxxx.xxx Limited, Xxxxxxxxxxx Xxxxxxx, Xxx
Xxxxxx, and Xx0xxx.xxx Limited, dated January 10,
2000.
THIS AGREEMENT is made on the 10th January 2000
BETWEEN: -
(1) XXXXX.XXX LIMITED (registered number 75919) whose registered
office is at Xxxxxxxxx House, Castle Street, St Helier, Jersey
JE4 8PN, Channel Islands ("the Company");
(2) XXXXXXXXXXX XXXXXXX of Pucks Croft, Horsham Road, Rusper,
West Sussex RH12 4PR ("Xx Xxxxxxx")
(3) XXX XXXXXX of Perry Farm Cottage, La Rue de Maistre, St Xxxx
Jersey ("Xx Xxxxxx"); and
(4) XX0XXX.XXX LIMITED whose registered office is at The Old
Chapel, Sacre Coeur, Rouge Bouillon, St Helier, Jersey, Channel
Islands ("the Investor")
WHEREAS:
(A) The Company, details of which are set out in Schedule 1, is
private company limited by shares, duly incorporated according to
the laws of Jersey, and has an authorised share capital of
GBP10,000 consisting of 10,000 ordinary shares of GBP1 each;
(B) Xx Xxxxxxx and Xx Xxxxxx are each (through nominees) the
beneficial owner of 1 ordinary share of GBP1 in the capital of
the
Company;
(C) It is intended that the Company shall be a joint venture
vehicle between the Investor and Xx Xxxxxxx;
(D) The Investor wishes to subscribe for 5,000 Ordinary Shares
of GBP1 in the capital of the Company, being 50% of the issued
share capital of the Company;
(E) Xx Xxxxxxx wishes to subscribe for 2,999 Ordinary Shares of
GBP1 in the capital of the Company, so that he will in total hold
30% of the issued share capital of the Company;
(F) Xx Xxxxxx wishes to subscribe for 499 Ordinary Shares of
GBP1
in the capital of the Company, so that he will in total hold 5%
of the issued share capital of the Company;
(G) The parties wish to establish the Trust principally for the
benefit of the employees of the Company, and wish to procure that
the trustees thereof shall subscribe for 1,500 Ordinary Shares
of GBP1 in the capital of the Company, so that the Trust will in
total hold 15% of the fully diluted issued share capital of the
Company;
(H) The parties are willing to enter into this Agreement to
provide for their ongoing relationships and activities.
THE PARTIES AGREE as follows: -
1 DEFINITIONS
(A) In this Agreement and in the Schedules each of the following
words and expressions shall, unless the context otherwise
requires, have the meaning set opposite the relevant word or
expression: -
"Annual Business Plan" the annual business plan of the Group in
respect of each financial year of the Group to be prepared
pursuant to Clause 6.6 which shall include a budget, projected
cash flows and a statement of business objectives;
"Articles" the articles of association of the Company in the
Agreed Terms to be adopted at Completion and as amended from time
to time;
"Board" the board of Directors of the Company for the time
being;
"Business Plan" the business plan in the Agreed Terms
prepared by or on behalf of Xx Xxxxxxx and the documents annexed
to such plan;
"Completion" completion of the matters set out in Clause 2;
"Debenture" the debenture in the Agreed Terms embodying fixed
and floating charges over the assets and undertaking of the
Company to secure the undertakings of the Company under the
Facility Agreement;
"Directors" the directors for the time being of the Company
(and the expression "Director" shall be construed accordingly);
"the Facility Agreement" the facility agreement in the Agreed
Terms to be entered into between the Investor and the Company;
"Founders" means the Investor, Xx Xxxxxxx and Xx Xxxxxx;
"Group" means at any relevant time the Company and any
subsidiaries for the time being of the Company;
"Intellectual Property Rights" any patent, patent
application, know-how, trade xxxx, trade xxxx application, trade
name, registered design, copyright or other similar intellectual,
industrial or commercial right;
"Investor Director" a director appointed by the Investor to the
Board or such director's duly appointed alternate;
"Xxxxxxx Director" a director appointed by Xx Xxxxxxx to the
Board or such director's duly appointed alternate;
"Recognised Investment a recognised investment exchange as
Exchange" defined by section 207 of the Financial Services Xxx
0000;
"Service Agreements" the service agreements in the Agreed
Terms to be entered into on Completion by the Company and Xx
Xxxxxxx, and the Company and Xx Xxxxxx as set out in clause
2.1.3;
"Shareholders" means the holders of Shares from time to time (and
the expression "Shareholder" shall be construed accordingly);
"the Shares" the ordinary shares of GBP1 each in the capital of
the Company for the time being in issue and in the event of any
sub-division, consolidation or reclassification of such Shares,
such ordinary shares of a different nominal value resulting
therefrom (and the expression "Share" shall be construed
accordingly);
"the Trust" the trust established under the Trust Deed;
"the Trust Deed" the deed in the Agreed Terms for the
establishment of the Trust;
(B) Wherever a document is referred to as being `in the Agreed
Terms' it shall be in the form agreed by the parties hereto which
agreement may be evidenced by being initialled by Xx Xxxxxxx on
behalf of the Company, by Xx Xxxxxxx, by Xx Xxxxxx and by any
person(s) nominated by or on behalf of the Investor.
2 COMPLETION
2.1 Unless otherwise agreed, Completion shall take place at the
office of Xx Xxxxxxx'x solicitors forthwith upon execution of
this Agreement, provided that the conditions set out in Clause
2.2 have been fulfilled.
2.2 On Completion:-
2.2.1 Each of the Founders shall deliver to the Company
letters of application for the allotment and issue of the Shares
set out in the Recitals to this Agreement at GBP1 per Share, and
the Company shall, against payment of the sums due, accept such
applications;
2.2.2 the Investor shall deliver to the Company the duly
signed Facility Agreement ;
2.2.3 Xx Xxxxxxx and Xx Xxxxxx shall procure that a meeting
of the Board shall be held at which the Board shall appoint:
(a) Xxx Xxxx and [ ] as the first Investor Directors of the
Company; and
(b) Jersey Trust Company as secretary of the Company;
2.2.4 the Founders shall procure that:
(a) a meeting of the Board shall be held at which the Board
shall pass resolutions:
(i) authorising the execution of this Agreement, the Service
Agreements, the Facility Agreement and the Debenture, and
(ii) authorising the execution of the Trust Deed and the funding
of the Trust to enable it to subscribe for the shares to be held
by it as set out in the Recitals to this Agreement;
(b) the Company and each of Messrs Xxxxxxx and Xxxxxx shall
enter into the Service Agreements;
(c) there shall be delivered to the Company any documentation
needed to perfect the registration of the Investor, Xx Xxxxxxx
and Xx Xxxxxx as shareholders in the Company as set out in the
Recitals to this Agreement;
(d) there shall be delivered to the Company in due course such
applications and any documentation needed to perfect the
registration of the Trust as a Shareholder in the Company as set
out in the Recitals to this Agreement, and the Company shall,
against payment of the sums due, accept such application;
(e) an extraordinary general meeting of the Company shall be
held on short notice at which the Articles shall be adopted.
3 WAIVER BY PARTIES
Each of the Founders unconditionally and irrevocably waives its
rights (if any) under the Articles or the Companies Xxx 0000 or
otherwise to be allotted in respect of any of the Shares to be
allotted to any other party pursuant to this Agreement.
4 THE BOARD OF DIRECTORS
4.1 Notwithstanding anything provided herein or in the Articles
(as amended from time to time) the Investor and Xx Xxxxxxx shall
each be entitled, for so long as each is the holder of 15% or
more of the issued share capital of the Company, to appoint,
remove and replace two Directors on the Board.
4.2 No resolution of the Board shall be passed save (for so long
as each is the holder of 15% or more of the issued share capital
of the Company) with the approval of an Investor Director and
either Xx Xxxxxxx or such Xxxxxxx Director as is specifically
authorised in writing by Xx Xxxxxxx for that purpose.
4.3 The provisions of clause 4.2 shall not apply in respect of
matters arising relating to the Trust including (but not limited
to) the amendment of the Trust Deed and/or for the appointment of
trustees to the Trust and the transfer from the Trust of shares
to selected individuals, and in regard to such matters Xx Xxxxxxx
(or such Xxxxxxx Director as is specifically authorised in
writing by Xx Xxxxxxx for that purpose) shall (solely in relation
to such matters) have and may cast such number of votes as shall
exceed by one the number of votes cast by all other Directors
5 BUSINESS CONDUCT OBLIGATIONS OF THE COMPANY
5.1 The Shareholders shall exercise their powers in relation to
the Company so as to ensure that:-
5.1.1 any expansion, development or evolution of the Group's
business or that of its subsidiaries will only be effected
through the Company or a wholly owned subsidiary of the Company;
5.1.2 the Company shall enforce or procure the enforcement of
to as full an extent as possible the obligations of Xx Xxxxxxx
and Xx Xxxxxx under their respective Service Agreements;
5.1.3 the Company shall not enter into, terminate, vary or
fail to exercise its rights under any other agreement or
arrangement with any Director or Shareholder or any person
connected with any of them otherwise than in good faith and on
arms length terms;
5.1.4 the Company shall take all reasonable steps within its
powers to protect its Intellectual Property Rights and shall make
such patent, registered design, trademark and other such
applications and effect such renewals or extensions thereof as
are required to keep the same in force;
5.1.5 the Company shall take all reasonable steps within its
powers to protect information which is confidential to it; and
5.1.6 all decisions which can reasonably be considered to be
material to the Company as a whole are approved either at a
properly convened meeting of the Board or by a resolution in
writing signed by or otherwise approved in writing by all the
Directors of the Company.
6 INFORMATION OBLIGATIONS OF THE COMPANY
6.1 The Company undertakes to the Investor that the Company
shall:
6.1.1 keep the Investor informed of material matters relating
to the progress of its business to such extent and in such form
and detail as the Investor may from time to time require; and
6.1.2 supply such written particulars of any matters
concerned with and arising out of the activities of the Company
and any of its subsidiaries as the Investor may from time to time
require.
6.2 Without limiting the generality of Sub-clause 6.1 of this
Clause, the Company shall deliver within 28 days of the end of
each calendar month to the Investor, an information pack
comprising:-
6.2.1 monthly management accounts including:-
(a) profit and loss account for month and year to date with
comparison to budget;
(b) cash flow for month and year to date with comparison to
budget; and
(c) balance sheet with comparison to budget;
6.2.1 a report by the managing director which shall include
appropriate forecasts for the Company;
6.2.2 projected cash-flows for the next quarter;
6.2.3 projected profit and loss account for the remainder of
the then current financial period; and
6.2.4 copies of any management letters to the Company which
may have been issued by its auditors (in the case of the first
information pack) since Completion and (in the case of subsequent
information packs) since the delivery of the previous information
pack.
6.3 Without limiting the generality of Sub-clauses 6.1 or 6.2 of
this Clause the Company shall deliver to the Investor forthwith
upon the same becoming available and not in any event later than
4 months after the end of each relevant financial year, copies of
the audited profit and loss accounts and audited balance sheets
of the Group and the audited consolidated profit and loss account
and the audited consolidated balance sheet of the Group all in
respect of each financial year of the Company and each of its
subsidiaries.
6.4 Meetings of the Board shall be held at least monthly (or
such lesser frequency as the Investor shall agree in writing) and
shall be convened by giving to the Board not less than 14 days
written notice (or such shorter period with the consent of an
Investor director and a Xxxxxxx Director) of the time and place
of the Board meeting and enclosing an agenda and copies of any
appropriate supporting papers.
6.5 The Company shall make available to the Investor copies of
minutes of meetings of the Board and of the boards of directors
of each member of the Group and of all committees of the said
boards not later than the earliest of:
6.5.1 the same time that the minutes are made available to
any of the Directors; or
6.5.2 the business day before the next meeting of the
relevant board or committee; or
6.5.3 14 days after the relevant meeting.
6.6 The Company shall:
6.6.1 prepare and deliver to the Investor at least 30 days
before (but not sooner than 60 days before) the commencement of
each of its financial years the Annual Business Plan in respect
of the forthcoming financial year; and
6.6.2 endeavour to agree the content of the Annual Business
Plan with the Investor prior to so delivering it; and
6.6.3 shall in any event procure that the budget included in
each such Annual Business Plan shall be in such form and detail
as the Investor shall reasonably require from time to time.
6.7 If the Company fails to comply with its obligations under
Sub-clauses 6.1, 6.2, 6.3 or 6.6 of this Clause, the Investor
shall be entitled to instruct a firm of chartered accountants to
prepare and submit to the Investor and the Company at the cost of
the Company such information as should have been supplied
pursuant to Sub-Clauses 6.1, 6.2, 6.3 or 6.6 of this Clause and
such other financial information concerning the Group as the
Investor shall reasonably require. The Company shall (and shall
procure that its subsidiaries shall) give such accountants all
reasonable access to its financial records and premises and all
reasonable assistance which such accountants may request for this
purpose.
7 CONSENT MATTERS & CONSENT PROCEDURES
7.1 The Company and the Shareholders shall not without the prior
written consent of the Investor and Xx Xxxxxxx (for so long as
each is the holder of 15% or more of the issued share capital of
the Company) effect or propose any of the matters referred to in
Schedule 2.
7.2 Any notice or information to be given by the Company to the
Investor hereunder may be given to an Investor Director on behalf
of the Investor and any Investor Director shall be authorised to
communicate the consent or approval of the Investor to any
matters under this Agreement.
7.3 Any consent or approval to be given by the Investor
hereunder may be given upon such terms and subject to such
conditions (if any) as the Investor may in its absolute
discretion determine and may be given retrospectively and any
breach of or failure to comply with any such terms and conditions
shall constitute a breach of this Agreement by the party
committing such breach or failure to comply.
8 SUBSIDIARIES
The Company undertakes to the Investor that it shall procure
that each member of the Group shall observe and perform the
provisions and conditions contained in this Agreement to be
observed and performed by them.
9 OTHER INVESTMENTS
Xx Xxxxxxx and Xx Xxxxxx each agree that save with the prior
written consent of the Investor they will not make any further
investment in any other company that is in competition with the
Company save for investments not exceeding 3% in total of any
class of security dealt with on any Recognised Investment
Exchange.
10 WARRANTIES
10.1 Xx Xxxxxxx warrants to the Investor that the statements of
intention, expectation and opinion contained in the Business Plan
10.1.1 are honestly made and held by him;
10.1.2 are honestly believed to be based upon fair and
reasonable assumptions;
10.1.3 are believed by him to be reasonable; and
10.1.4 that to the best of his knowledge and belief no event
has occurred which potentially adversely alters such beliefs.
10.2 Xx Xxxxxxx acknowledges to the Investor pursuant to the
terms of this Agreement that Xx Xxxxxxx has agreed to give the
warranties set out in Sub-clause 10.1 in consideration of the
Investor entering into this Agreement and that the Investor has
entered into this Agreement in reliance on such warranties.
11 DISCLOSURE OF INFORMATION
11.1 The Company authorises the Investor to disclose such
information relating to each member of the Group to the extent
that the Investor is required to do so by law, by a Recognised
Investment Exchange or any regulatory authority to which the
Investor may be subject but not otherwise.
11.2 The Investor Directors shall be entitled to report to the
Investor upon the affairs of each member of the Group and in such
report to disclose such information as they shall reasonably
consider appropriate.
12 PUBLICITY
12.1 Unless it complies with the provisions of Sub-clause 12.2 of
this Clause no party hereto shall, whether before or after
Completion, issue any press release or make any public statement
or other communication in respect of any of the matters contained
in this Agreement or any document referred to herein unless
required by law or by the regulations of a Recognised Investment
Exchange or other competent regulatory authority.
12.2 The contents of and the manner of presentation and
publication of any press release, public statement or other
communication to be issued or made by any party shall be subject
to the prior approval of the Investor and Xx Xxxxxxx such
approval not to be unreasonably withheld or delayed.
12.3 The Company, Xx Xxxxxxx and Xx Xxxxxx each undertakes with
the Investor that they shall not use the name of the Investor in
any context whatsoever (except as required by law) or hold
itself, himself or themselves (as the case may be) out as being
connected or associated with the Investor (other than as regards
the Investor being a shareholder in the Company) in any manner
whatsoever without the prior written consent of the Investor.
13 SHARE TRANSFERS
13.1 No Shareholder shall be entitled to sell, transfer, charge,
encumber, grant options over or otherwise dispose of any of the
Shares or any beneficial interest therein except on the terms set
out in this Agreement and in accordance with the Articles.
13.2 Should:
13.2.1 either Xx Xxxxxxx or the Investor propose disposing of
any interest in any of their Shares, the right to do so be
subject to such restrictions as may be contained in the Articles;
13.2.2 any Shareholder (save for the Investor and Xx Xxxxxxx)
and any person entitled to Shares by transmission propose
disposing of any interest in any Shares, he ("the proposing
transferor") shall not be entitled to do so without first
offering them to Xx Xxxxxxx. The other Shareholders shall not
have any pre-emption rights in respect of any such transfer, and
any restrictions as may be contained in the Articles shall not
apply, unless and until the priority pre-emption rights of Xx
Xxxxxxx set out in this Sub-clause and in Sub-clause 13.2.3 are
waived, declined or exhausted.
13.2.3 The priority pre-emption rights of Xx Xxxxxxx shall
take effect as follows:
(a) The proposing transferor shall serve a transfer notice on Xx
Xxxxxxx and on the Company specifying the number of Shares in
question ("the Transfer Notice"), and the Transfer Notice shall
constitute the Company his agent for the sale of the Shares
specified in it. The price per Share shall be the price which the
auditors of the Company (at the request of the Directors) state
in writing to be in their opinion the fair value of the shares on
a sale as at the date on which the Transfer Notice is received
between a willing seller and a willing purchaser (taking no
account of whether the shares do or do not carry control of the
Company) and, if the Company is then carrying on business as a
going concern, on the assumption that it will continue to do so
("the Prescribed Price").
(b) On receipt of the auditor's statement of the Prescribed
Price, the Company shall offer the Shares in question to Xx
Xxxxxxx. Xx Xxxxxxx shall have 30 days within which such offer
must be accepted or, in default, the offer will be deemed to have
been declined.
(c) Should Xx Xxxxxxx waive his priority pre-emption rights or
decline the offer or should the offer be deemed to have been
declined, the right thereafter of the proposing transferor to
transfer shares or any interest therein shall be subject such
restrictions as may be contained in the Articles.
13.3 The parties shall procure that before any person (other than
a person who is already a Shareholder) is registered as a holder
of any Share in the Company such person shall enter into a deed
of adherence agreeing to be bound by the provisions of this
Agreement in such form as may be agreed amongst the Shareholders
from time to time (such agreement not to be unreasonably
withheld, refused or delayed).
13.4 In the event of a third party (either alone or in concert
(as such expression is defined in the City Code) with any other
person(s)) not connected with any Shareholder ("the Purchaser")
offering ("the Offer") on any date ("the Offer Date") to purchase
all the Shares then in issue any member or members together
holding at least 75% by nominal value of the issued Shares ("the
Accepting Member") shall be entitled to require (by notice in
writing served no later than 21 days following the Offer Date
("the Notice Date")) that all the remaining Shareholders accept
the Offer within 14 days following the Notice Date PROVIDED THAT
the Offer:
13.4.1 is bona fide and made on an arms length basis; and
13.4.2 is on the same terms and at the same price per Share as
between the remaining Shareholders and the Purchaser as contained
in the offer by the Purchaser to the Accepting Members.
13.5 If the remaining Shareholders, having become bound to accept
an Offer to purchase all their Shares in accordance with the
provisions of Sub-clause 13.4 above, default in transferring the
same the Chairman of the Company or failing him one of the
Directors duly nominated by resolution of the Board for that
purpose shall be deemed to be the duly appointed attorney of such
Shareholders with full power to execute, complete and deliver in
the name and on behalf of such Shareholders a transfer of the
relevant Shares to the Purchaser and so that the Board may
receive and give a good discharge for the purchase money on
behalf of such Shareholders and (subject to the transfer being
duly stamped) enter the name of the Purchaser in the register of
members as the holder by transfer of the relevant Shares.
14 COMPLIANCE AND FURTHER ASSURANCE
14.1 Each of the parties shall take all actions necessary
(including convening meetings, proposing resolutions and
exercising voting rights and executing such further deeds,
documents and assurances as may be reasonably required) insofar
as it is in its power so to do and in so far as is permitted by
law to ensure that the obligations in and other commitments under
this Agreement or any of the documents referred to herein are
observed and performed by the relevant party.
14.2 If and to the extent that any provision of this Agreement
shall purport unlawfully to xxxxxx the Company's statutory powers
the parties to this Agreement (other than the Company) agree that
the same shall be read and construed as though the Company were
not referred to in such provision, but shall continue to the full
extent possible to be binding upon the parties other than the
Company.
15 INTERACTION WITH THE ARTICLES
As between the parties (other than the Company) in the event
of any ambiguity or conflict arising between the terms of this
Agreement and those of the Articles, to the extent of any such
ambiguity or conflict the terms of this Agreement shall prevail.
16 ASSIGNMENT
16.1 Save as herein provided this Agreement shall be binding upon
and enure for the benefit of the successors of the parties.
16.2 Except as specifically provided in this Agreement or in the
Articles any rights, obligations or liabilities hereunder shall
not at any time be assigned by any Shareholder without the
express prior written consent of the Investor and Xx Xxxxxxx (for
so long as each is the holder of 15% or more of the issued share
capital of the Company).
17 CONFIDENTIAL INFORMATION
Each Shareholder undertakes that he will not, except as
permitted by this Agreement, at any time hereafter divulge or
communicate to any person (other than to officers or employees of
any member of the Group (as the case may be) whose province it is
to know the same) any confidential information relating any
member of the Group which may come to his or its knowledge as a
shareholder or director of any member of the Group (as the case
may be) and he shall use his best endeavours to prevent the
publication or disclosure of any such confidential information.
18 COSTS
Every party shall bear its own costs and expenses in
connection with this Agreement and, in particular, the Company
shall bear any disbursements it incurs in connection with this
Agreement including stamp duties, and registration fees.
19 PERIOD OF THIS AGREEMENT
This Agreement shall remain in force and effect for so long
as any two parties hold Shares in the Company but shall cease in
relation to any party in the event that such party ceases to hold
any Shares in the Company save that the termination of the
Agreement in such circumstances shall not affect such of its
provisions as are expressed to operate or have effect after such
termination and shall also not affect any rights of action
already accrued to any party in respect of any antecedent breach
of this Agreement by any of the other parties.
20 COUNTERPARTS
This Agreement may be entered into by each of the parties
signing one or more counterparts, which taken together shall
constitute a complete agreement.
21 WAIVER
Failure by any party hereto at any time or times to require
performance of any provisions of this Agreement shall in no
manner affect his right to enforce such provisions at a later
time. No waiver by any party hereto of any condition or the
breach of any term, covenant, representation or warranty
contained in the Agreement whether by conduct or otherwise in any
one or more instances shall be deemed to be or construed as a
further or continuing waiver of any such condition or breach or a
waiver of any other condition or be deemed to be or construed as
the breach of or a waiver of any other term, covenant,
representation or warranty contained in this Agreement.
22 INVALIDITY
If any of the provisions of this Agreement are or become
invalid, illegal or unenforceable in any respect under any law,
the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired.
23 NOTICES
A notice may be given by any party hereto to any other party
hereto either personally or by sending it by prepaid first class
post or airmail to his address stated in this Agreement or to any
other address supplied by him in writing to the other parties
hereto for the giving of notice to him. A properly addressed and
prepaid notice sent by post shall be deemed to have been served
at an address with the United Kingdom and Jersey at the expiry of
48 hours after the notice is posted and to have been served at an
address outside the United Kingdom and Jersey at the expiry of 72
hours after the notice is posted.
24 APPLICABLE LAW
This Agreement shall be governed by and construed in
accordance with English law and all the parties hereto
irrevocably submit to the non-exclusive jurisdiction of the
Jersey courts as regards any claim, dispute or matter arising out
of or relating to this Agreement or any of the documents to be
executed pursuant to it.
25 ENTIRE AGREEMENT
25.1 This Agreement represents the entire agreement between the
parties in relation to the matters the subject hereof. It is
agreed that: -
25.1 no party has entered into this Agreement in reliance upon
any representation, warranty or undertaking of any other party
which is not expressly set out in this Agreement;
25.2 no party shall have any remedy in respect of
misrepresentation or untrue statements made by any party unless
and to the extent that a claim lies for breach of warranties
under Sub-clause 10.1 of this Agreement;
25.2 This clause shall not exclude any liability for fraudulent
misrepresentation.
26 INTERPRETATION
26.1 References in this Agreement to any statute or statutory
provision shall be deemed to include references to any statute or
statutory provision which amends, extends, consolidates or
replaces the same (other than any such statute or statutory
provision with retrospective effect to the extent that it is
retrospective) and except to the extent that any amendments or
modification enacted after the date of this Agreement would
extend or increase the liability of any party to any other party
under this Agreement and, save as aforesaid, to any order,
regulation, instrument or other subordinate legislation made
thereunder.
26.2 References to "Clauses", "Sub-clauses" and "Schedules" are
to clauses and sub-clauses of the schedules of this Agreement.
26.3 The headings in this Agreement and the index to this
Agreement are for convenience and shall not affect its
construction or interpretation.
26.4 Where the expressions "directors", "financial year" and
"subsidiary" are used in this Agreement they shall have the
meanings attached to them respectively by the Companies Xxx 0000.
Where the word "emoluments" is used in this Agreement it shall be
construed in accordance with sub-paragraph 1(4) of schedule 6 of
the Companies Xxx 0000.
26.5 Where the expressions "Connected Persons" and "person
connected" are used in this Agreement they shall mean any person
or persons connected with another person within the definition of
connected persons contained in Section 839 of Income Tax and
Corporation 1988.
26.6 Unless the context otherwise requires: -
26.6.1 words denoting the singular shall include the plural
and vice versa;
26.6.2 words denoting a gender shall include all genders;
26.6.3 references to persons shall include corporations and
firms;
25.6.4 covenants, warranties and undertakings given by an
individual shall be binding on his personal representatives and
executors.
IN WITNESS WHEREOF this Agreement has been entered into on the
date set out above
SCHEDULE 1
Part 1
Information concerning the Company
Date of Incorporation: 23 December 1999
Registered Number: 75919
Registered Office: Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xx Xxxxxx,
Xxxxxx XX0 0XX, Channel Islands
Authorised Share Capital GBP10,000
divided into: 10,000 Ordinary Shares of GBP1 each
Issued Share Capital: 2 Ordinary Shares of GBP1 each
Secretary: Jersey Trust Company
Shareholders and shareholding prior to Completion:
Name Number
Xx Xxxxxxx 1 Ordinary Share of GBP1 each
Xx Xxxxxx 1 Ordinary Share of GBP1 each
Shareholders and shareholding following Completion:
Name Number
CI4 Net Limited 5,000 Ordinary Shares of GBP1 each
Xx Xxxxxxx 3,000 Ordinary Shares of GBP1 each
Xx Xxxxxx 500 Ordinary Shares of GBP1 each
The Trust 1,500 Ordinary Shares of GBP1 each
Accounting Reference Date: 1 January
Bankers: HSBC
SCHEDULE 2
Consent Matters
The Company and the Shareholders shall not without the prior
written consent of the Investor and Xx Xxxxxxx (for so long as
each is the holder of 15% or more of the issued share capital of
the Company) effect or propose that the Company:
(a) enter into or give or permit or suffer to subsist any
guarantee of or indemnity or contract of suretyship for or
otherwise commit itself in respect of the due payment of money or
the performance of any contract, engagement or obligation of any
other person or body other than a subsidiary or otherwise than in
the ordinary course of business;
(b) make any material change to the nature of the business or
the jurisdiction where it is managed and controlled;
(c) do any act or thing outside the ordinary course of the
business carried on by it;
(d) make any change to
(i) its accounting policies, bases or methods (other than as
recommended by the auditors of the Company);
(ii) any Annual Business Plan;
(e) instruct such bank with which the Company holds an
account(s) to make payment of the amounts from time to time as
follows save with the signatures of the Directors as follows :
(i) payment of an amount up to GBP5,000 - one Director;
(ii) payment of an amount from GBP5,001 to GBP100,000 - two
Directors, one of whom must be either Xx Xxxxxxx or such Director
as is specifically authorised in writing by Xx Xxxxxxx for that
purpose;
(iii) payment of amounts over GBP100,000 - two Directors, one
of whom must be an Investor Director.
(f) engage any employee to perform services on terms that
either:
(i) his contract cannot be terminated by six months' notice or
less or
(iii) his emoluments and/or commissions or bonuses are or are
likely to be at the rate of GBP100,000 per annum or more;
(g) increase the emoluments and/or commissions or bonuses of any
employee to more than GBP50,000 per annum or vary the terms of
employment of any employee earning (or so that after such
variation he will, or is likely to earn) more than GBP50,000 per
annum;
(h) vary the terms of employment and service of any director or
company secretary of the Company to a material degree, or
increase or vary the salary or other benefits of any such
officer;
(i) mortgage or charge or permit the creation of or suffer to
subsist any mortgage or fixed or floating charge, lien (other
than a lien arising by operation of law) or other encumbrance
over the whole or any part of its undertaking, property or
assets;
(j) conduct any litigation material to the Company (material
being construed as reasonably likely to incur costs including any
award of damages, fees or third party costs in excess of
GBP500,000), save for the collection of debts arising in the
ordinary course of the business carried on by the Company or any
application for an interim injunction or other application or act
which is urgently required in the best interests of the Company
in circumstances in which it is not reasonably practicable to
obtain prior consent as aforesaid;
(k) save as provided for in the Annual Business Plan take or
agree to take any leasehold interest in or licence over any real
property;
(l) dispose (other than in accordance with any relevant capital
disposal forecast in the Annual Business Plan) of any asset of a
capital nature;
(m) propose or pay any dividend or propose or make any other
distribution (as defined under sections 209, 418 and 419 of ICTA)
exceeding in any one financial year an aggregate of one-third of
the distributable profit and/or reserves in that financial year;
(n) permit or cause to be proposed any alteration to the rights
attaching to the Shares;
(o) create, allot, issue or redeem any share or loan capital
(whether convertible into any class of shares in the Company or
not) unless such shares are offered on a pre-emptive basis to the
existing members of the Company;
(p) grant or agree to grant any options or other right to
subscribe for or convert into Shares;
(q) permit or cause to be proposed any amendment to its
memorandum of association or the Articles;
(r) cease or propose to cease to carry on the business or be
wound up save where it is insolvent;
(r) apply or permit the Directors of the Company to apply to
petition a Court for an administration order to be made in
respect of the Company; or
(s) enter into or vary any transaction or arrangement with, or
for the benefit of any of the Directors of or Shareholder in the
Company or any other person who is a Connected Person with any
such Director or Shareholder.
SIGNED BY ) C Xxxxxxx
XXXXXXXXXXX XXXXXXX )
duly authorised for and on behalf of )
XXXXX.XXX LIMITED )
R Charlton
Solicitor
SIGNED BY )
XXXXXXXXXXX XXXXXXX ) C Xxxxxxx
in the presence of: - )
R Charlton
Solicitor
SIGNED BY )
XXX XXXXXX ) I Xxxxxx
in the presence of: - )
R Charlton
Solicitor
SIGNED BY
XXX XXXX )
duly authorised for and on behalf of ) X X Xxxx
C14 XXX.XXX LIMITED )
in the presence of: - )
X. XxxXxxxx
Solicitor
Xxxxxx XX0X 0XX
