EXHIBIT 2.1
DATED 28 FEBRUARY 1998
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ARIS CORPORATION
XXXXX XXXXXX XXXXXX XXXX
and
THE SHAREHOLDERS OF
BAREFOOT COMPUTER TRAINING LIMITED
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AGREEMENT
FOR THE SALE AND PURCHASE OF
THE ENTIRE ISSUED SHARE CAPITAL OF
BAREFOOT COMPUTER TRAINING LIMITED
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XXXXX & CO
An International Law Firm
00 Xxxxxxxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Ref: SKJ/CBH/9800503
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THE SHARES OF COMMON STOCK OF ARIS CORPORATION ISSUED TO THE PERSONS AND
ENTITIES NAMED IN SCHEULE 1 OF THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND ARE
SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE OFFERED OR
SOLD IN THE UNTIED STATES OR TO U.S. PERSONS (AS DEFINED IN RULE 902(O) UNDER
THE SECURITIES ACT) UNLESS SUCH SHARES ARE REGISTEREDUNDER THE SECURITIES ACT OR
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IS
AVAILABLE AND UNLESS THE OTHER RESTRICTIONS ON THE TRANFER CONTAINED IN THE
AGREEMENTS REFERRED TO HEREIN ARE COMPLIED WITH.
THIS AGREEMENT is made as a deed on 28 February 1998
BETWEEN:
(1) THE PERSONS AND ENTITIES whose names and addresses are set out in Schedule
1 ("the Sellers");
(2) XXXXX XXXXXX XXXXXX XXXX of 00 Xxxxxx Xxxxxx, Xxxxxx XX0 0XX ("Mr Adda");
and
(3) ARIS CORPORATION of Fort Dent Two, suite 250, 0000 Xxxx Xxxx Xxx, Xxxxxxx,
Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America ("the Buyer").
WHEREAS:
(A) The Buyer wishes to acquire all of the issued shares of Barefoot Computer
Training Limited, a company incorporated in England and Wales as at the
date of this Agreement, on the terms and conditions of this Agreement.
(B) After such acquisition, the Buyer plans to integrate Barefoot Computer
Training Limited into Oxford Computer Group Limited, the Buyer's wholly-
owned subsidiary in the United Kingdom, by transferring all of the shares
or all of the assets of Barefoot Computer Training Limited to Oxford
Computer Group Limited, although the Buyer is not legally obliged to make
any such transfer and Oxford Computer Group Limited has no legal right to
any or all of the shares of assets of Barefoot Computer Training Limited.
NOW THIS DEED WITNESSES as follows:
1. INTERPRETATION
1.1 In this Agreement and the Schedules the following words and expressions
shall have the following meanings unless the context otherwise requires:
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"ACCOUNTS DATE" in respect of the Audited Accounts means the Last
Accounts Date, 30 November 1996 or 30 November 1995
(as the case may be);
"THE ACT" means the Companies Xxx 0000;
"ADDA SETTLEMENT" means a discretionary trust established under a deed
of settlement under the laws of the British Virgin
Islands;
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange
Act;
"ASSOCIATE" means GTS and/or any person, firm or company which is
a connected person of any Warrantor or which is an
associated company of any Warrantor;
"AUDITED ACCOUNTS" means the Last Accounts, the audited balance sheet of
the Company as at 30 November 1996 and/or 30 November
1995, the audited profit and loss account of the
Company for the fiscal year ended on 30 November 1996
and/or 30 November 1995 and, in each case, the
auditor's and directors' reports and notes thereon;
"BUSINESS DAY" means a day other than a Saturday, Sunday or public
holiday in the United Kingdom or the U.S.;
"BUYER'S GROUP" means the Buyer and/or any subsidiary of the Buyer
(including but not limited to Oxford), any holding
company of the Buyer and any subsidiary of any such
holding company;
"BUYER'S SHARES" means two hundred and seventy eight thousand six
hundred and eleven (278,611) fully paid, nonassessable
shares in the common stock of the Buyer to be issued
to the Sellers under this Agreement;
"BUYER'S SOLICITORS" means Xxxxx & Co of 00 Xxxxxxxxx, Xxxxxx, XX0X 0XX;
"CHILDRENS' TRUSTS" means collectively the Olivia Adda Settlement, the
Jacques Adda Settlement, the Xxxxxxx Adda Settlement
and the Xxxxxxxx Adda Settlement;
"THE COMPANY" means Barefoot Computer Training Limited, brief
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details of which are set out in Schedule 2;
"COMPLETION" means completion of the sale and purchase of the
Shares in accordance with the terms of this Agreement;
"CONSIDERATION" means the consideration described in clause 3;
"DIRECTORS" means the directors of the Company immediately before
Completion of this Agreement;
"DISCLOSURE LETTER" means the letter in a form satisfactory to the Buyer
from the Sellers' Solicitors to the Buyer's Solicitors
relating to the Warranties;
"EMPLOYEES" means the employees of the Company as at the date of
this Agreement, as listed in the Disclosure Letter;
"ENCUMBRANCE" means a mortgage, charge, pledge, lien, assignment,
right to acquire, option, restriction, right of first
refusal, right of pre-emption, third party right or
interest, title retention or any other encumbrance or
security interest of any kind whatsoever or another
type of preferential arrangement (including without
limitation a title transfer and/or retention
arrangement) having similar effect;
"ENVIRONMENTAL LAWS" means all regulations, directions and other
environmental protection, occupational, health and
safety or similar laws, regulations, restrictions,
licences, rules, and European Community directives as
in force in the United Kingdom, including but not
limited to the Environmental Protection Xxx 0000, the
Water Xxx 0000, the Control of Substances Hazardous to
Health Regulations, the Control of Pollution Xxx 0000
and the Radioactive Substances Xxx 0000;
"ESCROW AGENT" means the escrow agent named and defined as such in
the Escrow Agreement;
"ESCROW AGREEMENT" means an agreement in the agreed form to be executed
and delivered by the Buyer, the Warrantors and the
Escrow Agent in accordance with this Agreement;
"ESCROW FUND" means the escrow fund as defined in the Escrow
Agreement;
"ESCROWED SHARES" means the Buyer's Shares to be placed in escrow
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pursuant to the terms of clause 3.2 and in accordance
with the provisions of the Escrow Agreement, or such
fewer number of Buyer's Shares to be held in escrow
from time to time, reduced in accordance with the
terms of the Escrow Agreement;
"EVENT" includes (without limitation) the death of any person,
any change in the residence of any person for the
purposes of Taxation, any payment, transaction,
action, omission or occurrence of whatever nature and
a failure to make sufficient dividend payments to
avoid a shortfall apportionment or deemed distribution
of income, and references to an event occurring on or
before Completion shall include the combined result of
two or more events the first of which shall have taken
place before Completion in circumstances where that
event or those events taking place before Completion
shall have taken place outside the Company's ordinary
course of business (or shall be deemed to have taken
place outside the Company's ordinary course of
business) and that event or those events occurring
after Completion shall have taken place inside the
Company's ordinary course of business and shall also
include Completion;
"FSA" means the Financial Services Xxx 0000;
"GAAP" means U.S. generally accepted accounting principles;
"GTS" means Global Training Solutions (London) Limited whose
registered office is at Telephone House, 00 Xxxx
Xxxxxx, Xxxxxx XX0X 0XX ("GTS London"), Global
Training Solutions Limited ("GTS Limited") whose
registered office is at PO Box 146, Wickhams Cay 1,
Road Town, Tortola, British Virgin Islands and/or any
associated, affiliated or related person thereof;
"GTS BUSINESS" means the provision by GTS of (i) vendor/partner
certification and training schemes (being A+,
Skillcheck and substantially similar training schemes)
developed by GTS, (ii) courseware relating thereto
developed by GTS, and (iii) "train the trainer" skills
transfer and support relating to (i) and/or (ii)
above, in each case solely and exclusively to vendors
and partners (but not, for the avoidance of doubt and
without limitation, to end users);
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"GTS SERVICES means the services agreement in the agreed form
AGREEMENT" to be entered into between the Company and GTS London;
"ICTA" means the Income and Corporation Taxes Xxx 0000;
"INTELLECTUAL means patents, trade marks, service marks, designs,
PROPERTY" applications and rights to apply for any of the
foregoing, design rights, copyright (including but not
limited to all copyright in any drawings, plans,
specifications, manuals, designs, and computer
software) inventions, trade secrets, know how and
other confidential information and business names and
any similar rights, whether registrable or registered
or not, in any part of the world, in each case owned
or used by the Company for the purpose of its
business;
"INVESTMENT AND means the investment and pooling letter from each
POOLING LETTER" Seller in the agreed form;
"LAST ACCOUNTS" means the audited balance sheet of the Company as at
the Last Accounts Date, the audited profit and loss
account of the Company for the fiscal year ended on
the Last Accounts Date, and the auditor's and
directors' reports and notes thereon;
"LAST ACCOUNTS DATE" means 30 November 1997;
"LEASES" means the leases of the Property dated 14 June 1996
between Area Managements (London) Limited (1) and the
Company (2);
"LETTER OF means the letter of transmittal from each Seller in
TRANSMITTAL" the agreed form;
"LIABILITIES" means as at any relevant date, all actual or
contingent liabilities, whether liquidated, quantified
or unliquidated, known or not, arising out of any
event occurring before, or from circumstances
subsisting, at that date;
"MANAGEMENT means the unaudited management accounts of the
ACCOUNTS" Company for the two monthly periods ended on 31
December 1997 and 31 January 1998;
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"OXFORD" means Oxford Computer Group Limited of Wolsey Hall,
00 Xxxxxxx Xxxx, Xxxxxx XX0 0XX (a wholly-owned
subsidiary of the Buyer);
"PLANNING ACTS" means the Town and Country Planning Xxx 0000, the
Planning (Listed Buildings and Conservation Areas) Xxx
0000, the Planning (Hazardous Substances) Xxx 0000 and
the Planning (Consequential Provisions) Xxx 0000;
"PROMISSORY NOTE" means the promissory note to be issued by GTS to the
Company in the agreed form;
"PROPERTY" means the leasehold premises briefly described in
Schedule 3;
"PROPERTY LIABILITY" means any or all losses, damages, claims, demands,
costs and/or expenses of any kind whatsoever arising
(whether directly or indirectly) out of or in
connection with (i) any of the Planning Acts, (ii) the
permitted use designated under either or both of the
Leases, and/or (iii) any breach under either or both
of the Leases resulting from (i) and/or (ii) above;
"REGISTRATION RIGHTS means the agreement between each Seller and the Buyer
AGREEMENT" granting each Seller "piggyback" and "best efforts"
S-3 demand registration rights with respect to the
Buyer's Shares in the agreed form;
"REGULATION S" means Regulation S of the Securities Act;
"SEC" means the United States Securities Exchange
Commission;
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended;
"SECURITIES means the United States Securities Exchange Act of
EXCHANGE ACT" 1934, as amended;
"SELLERS" means the persons and entities whose names and
addresses are set out in Schedule 1;
"SELLERS' means Xxxxx & XxXxxxxx of 000 Xxx Xxxxxx Xxxxxx,
XXXXXXXXXX" Xxxxxx XX0X 0XX;
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"SHAREHOLDERS" means the Sellers;
"SHARES" means the whole of the issued share capital of the
Company;
"SSAP" means either a Statement of Standard Accounting
Practice published by the Institute of Chartered
Accountants in England and Wales or a Financial
Reporting Standard as issued by the Accounting
Standards Board;
"STC" means STC International Limited as trustee of the
Adda Settlement, X X Xxx 000, Xxxxxxxx, Xxxxxxx,
Xxxxxxx Xxxxxx Xxxxxxx;
"STOCK EXCHANGE" means the London Stock Exchange Limited;
"SUPPLEMENTAL means the Tax Covenant, the Escrow Agreement, the
AGREEMENTS" Registration Rights Agreement, the Investment and
Pooling Letter, the Letter of Transmittal, the
Promissory Note and the GTS Services Agreement;
"TCGA" means the Taxation of Chargeable Gains Xxx 0000;
"TAXATION" means all forms of taxation, charges, duties, imposts,
withholdings, rates, levies and governmental charges
(including any related fine, penalty, surcharge or
interest and whether national, state, provincial or
local) in all cases in the nature of tax or
corresponding to tax, whatsoever and whenever created,
enacted or imposed, and whether of the United Kingdom
or elsewhere and "Tax" shall be construed accordingly;
"TAXATION STATUTES" means statutes (and all regulations and arrangements
whatsoever made thereunder) whether of the United
Kingdom or elsewhere, and whether enacted before or
after the date of this Agreement, providing for or
imposing any Taxation;
"TAX COVENANT" means a deed of covenant relating to the Company's
liability for Taxation (in respect of which the
Warrantors stand as Covenantors) in the agreed form to
be executed and delivered by the Buyer and the
Warrantors at Completion;
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"TRUSTEES" means, in respect of the Childrens' Trusts, Mr Adda
and Pernille Adda and, in respect of the Adda
Settlement, STC;
"TRUSTS" means the Childrens' Trusts and the Adda Settlement,
or any of them;
"U.S." means the United States of America;
"WARRANTIES" means the warranties, representations and undertakings
by Xxxxx Xxx and/or the Warrantors (or any of them)
contained in clause 6 and set out in Schedule 4:
"Warranty" shall be construed accordingly; and
"WARRANTORS" means Mr Adda and each of the Sellers (but excepting
only Xxxxx Xxx because she is not a member or
affiliate of the control group for purposes of the
pooling requirements of GAAP).
1.2 Unless otherwise stated, a reference in this Agreement to a clause, sub-
clause or Schedule is a reference to a clause or sub-clause of, or a
schedule to, this Agreement. For the avoidance of doubt, the Schedules
form part of this Agreement and take effect as if set out in this
Agreement.
1.3 References to statutory provisions shall be construed as references to
those provisions as respectively replaced, amended or re-enacted from time
to time (whether before or after the date of this Agreement) and shall
include any provisions of which they are re-enactments (whether with or
without modification) and any sub-ordinate legislation made under such
provisions.
1.4 Unless the context otherwise requires, references to the singular shall
include the plural and vice versa, references to any gender shall include
all genders, and references to "person" shall include an individual, body
corporate, firm, association, trust, government or local authority
department, partnership or other authority or body (whether corporate or
unincorporate).
1.5 Clause headings are for ease of reference only and shall not affect the
construction of this Agreement.
1.6 Words and expressions defined in the Act shall, unless the context
otherwise requires, have the same meanings when used in this Agreement.
1.7 References to "in the agreed form" mean in the form agreed in writing
between the Sellers or the Warrantors (as the case may be) and the Buyer
and for the purpose of identification initialled by the Sellers' Solicitors
and the Buyer's Solicitors.
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2. SALE AND PURCHASE
2.1 Subject to the terms of this Agreement, each of the Sellers shall sell with
full title guarantee and the Buyer shall buy with effect from Completion
the Shares together with all benefits and rights attaching to the Shares,
including without limitation all dividends declared, and distributions made
or paid, on or after the date of this Agreement.
2.2 The Shares shall be sold free from all Encumbrances.
2.3 Each of the Sellers and Mr Adda hereby waives any pre-emption rights and
other restrictions on the transfer of, or otherwise relating to, any of the
Shares, conferred on him or any other person under the Articles of
Association of the Company, an agreement between Mr Adda (1) and Xxxxx Xxx
and Xxxxx Xxxxxxxx (2) dated 30 April 1992, or otherwise.
3. CONSIDERATION
3.1 In consideration of the sale of the Shares by the Sellers to the Buyer, the
Buyer shall, on Completion, allot and issue to each Seller the number of
Buyer's Shares set out opposite such Seller's name in column (4) of
Schedule 1.
3.2 Twenty seven thousand eight hundred and sixty one (27,861) of the Buyer's
Shares (being ten percent (10%) of the total number of Buyer's Shares to be
allotted and issued by the Buyer to the Sellers hereunder) shall be placed
in escrow by the Warrantors in accordance with the terms of the Escrow
Agreement.
4. COMPLETION
4.1 Completion shall take place at the offices of the Buyer's Solicitors on 28
February 1998.
4.2 The Buyer shall not be obliged to complete the purchase of any of the
Shares unless all of the documents and matters set out in Parts I and III
of Schedule 5 have been delivered and/or fully satisfied (as appropriate)
or waived by the Buyer. The Sellers shall not be obliged to complete the
sale of any of the Shares unless all of the documents set out in Part II of
Schedule 5 have been delivered by the Buyer or waived by the Sellers.
4.3 At Completion, the Buyer shall cause:
(a) ChaseMellon Shareholder Services to deliver via international courier
to each Seller as soon as practicable after Completion a certificate
representing the number of Buyer's Shares set out opposite such
Seller's name in column 4 of Schedule 1 minus, in the case of each
Warrantor, the number of Buyer's Shares representing such Warrantor's
pro-rata portion of the Escrowed Shares; and
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(b) to be delivered to the Escrow Agent certificates in respect of the
Buyer's Shares representing each Warrantor's pro-rata portion of the
Escrowed Shares.
4.4 If the Sellers do not comply with one or more of their obligations under
Part I of Schedule 5 on or prior to the date agreed for Completion or if
the Buyer does not comply with one or more of its obligations under Part II
of Schedule 5 on or prior to the date agreed for Completion (in either case
"the defaulting party"), or any subsequent date to which the other party
("the non-defaulting party") agrees in writing to defer Completion, the
non-defaulting party may (without prejudice to any other rights or remedies
available to it or them under this Agreement or otherwise) subject to the
agreement of the defaulting party, agree in writing to defer Completion to
another date in accordance with this clause 4.4, in which case the
provisions of this Agreement shall apply as if that other date were the
date set for Completion in clause 4.1.
5. COVENANTS
5.1 Each party shall, before issuing any press release or otherwise making any
public statements with respect to the transactions contemplated hereby,
consult with the other parties with respect thereto and no party shall,
without the prior written consent of the other parties, issue any press
release or make any such public statement, except as may be required by law
or applicable regulation.
5.2 The Buyer and each of the Sellers shall (and shall procure that the Company
shall) use all reasonable efforts and shall cooperate fully and shall take
all reasonable actions as are reasonably necessary to allow the acquisition
of the Shares by the Buyer as contemplated by this Agreement to be
accounted for on the Business Combination of the Accounting Principles
Board of the American Institute of Certified Public Accountants as amended
by Statements of the Financial Accounting Standards Board, and the restated
interpretations of the American Institute of Certified Public Accountants
(FASB), the Emerging Issues Task Force and the regulations of the U.S.
Securities Exchange Commission. In connection therewith and prior to
Completion, each Seller shall have executed and delivered an Investment and
Pooling Letter to the Buyer and the Buyer shall have received a pooling
letter from Price Waterhouse LLP, as auditors for the Buyer.
5.3 Upon the request of the Buyer, the Warrantors shall procure that the
Company's auditors Xxxxxx Xxxxxxx, shall, subject to their receipt of
reasonable professional fees and expenses for the same:
(a) continue to allow Price Waterhouse LLP to have access to and to review
the audit work of Xxxxxx Xxxxxxx for the fiscal years of the Company
ended on 30 November 1996 and 30 November 1997 under the same
conditions set out in the "hold-harmless" letter dated 18 February
1998; and/or
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(b) with the prior written consent of Xxxxxx Xxxxxxx, include the audited
financial statements and the auditors report published by Xxxxxx
Xxxxxxx in respect of such years within any opinion given by Price
Waterhouse LLP relating to any audit of the Buyer's Group and/or the
Company and/or within any SEC filings made at any time in relation to
the Buyer's Group and/or the Company.
6. WARRANTORS' WARRANTIES
6.1 Each of the Sellers severally warrants, represents and undertakes to the
Buyer that:
(a) he has the legal right and full power and authority to sell and
transfer to the Buyer the full legal and beneficial ownership of the
Shares set out opposite his name in column 3 of Schedule 1 with full
title guarantee, free from all Encumbrances and otherwise on the terms
of this Agreement without the consent of any third party; and
(b) he has the legal right and full power and authority to enter into and
perform this Agreement and any and all Supplemental Agreements in
accordance with their respective terms.
6.2 The Warrantors jointly and severally warrant, represent and undertake to
the Buyer that the Warranties contained in this clause 6 and in Schedule 4
are true, accurate and complete in all respects as at the date of
Completion.
6.3 Each of the Warranties is given subject to the matters fairly and
specifically and, so far as the Warrantors are aware, fully disclosed in
the Disclosure Letter.
6.4 Each of the Warranties shall be construed separately and independently of
each other and no Warranty shall be limited or restricted by reference to
or inference from any other Warranty.
6.5 The Warranties shall remain in full force and effect after Completion and
the Buyer's rights and remedies in respect of any breach of the Warranties
or under any other provision of this Agreement shall not be regarded as
modified or varied by Completion, by any investigation (including without
limitation any due diligence investigation) made by or on behalf of the
Buyer in connection with the purchase of the Shares or any information or
documents supplied to it (save as set out in the Disclosure Letter), by the
Buyer failing to exercise or delaying the exercise of any of its rights or
remedies or by any other event or matter whatsoever except a specific and
duly authorised written waiver or release by the Buyer.
6.6 Any amounts owed pursuant to the Warranties by the Warrantors shall be
deemed to be an adjustment in the amount of the Buyer's Shares received as
Consideration, calculated by reference to the closing price of the Buyer's
Shares as quoted on the Nasdaq National Market on 27 February 1998.
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6.7 The Sellers each undertake (for themselves and any nominees) that after
Completion and for so long as they remain the registered holder of any of
the Shares they will:-
(a) not represent themselves as the beneficial owners of any of the
Shares;
(b) exercise all powers, rights and privileges vested in the registered
holder of the Shares only in accordance with the lawful written
directions of the Buyer or such member of the Buyer's Group as the
Buyer may nominate by notice in writing to the Sellers; and
(c) hold the Shares and any dividends or other distributions of profits or
assets in respect thereof in trust for the Buyer or such member of the
Buyer's Group as the Buyer may nominate by notice in writing to the
Sellers.
6.8 STC undertakes that during the "Restricted Period" it will not:
(a) distribute any of the capital and/or income of the Adda Settlement if
to do so would, or would be reasonably likely to, result in the
aggregate value of the net assets of the Adda Settlement being less
than five hundred thousand pounds sterling (pound 500,000) or enter
into any transaction or arrangement having a similar effect unless an
irrevocable and legally binding undertaking in favour of the Buyer is
obtained from any beneficiary to whom STC proposes to distribute any
capital and/or income (such undertaking to be in a form satisfactory
to the Buyer) whereby such beneficiary assumes joint and several
liability with STC in respect of any claim under this Agreement and/or
any Supplemental Agreement to the extent of the value of the
distribution; and/or
(b) exercise any of its powers to invest or lend any money or other funds
from the Adda Settlement to any person, company, partnership or other
business enterprise or venture of the Warrantors or any Associate of
any of the Warrantors without the prior written consent of the Buyer,
such consent not to be unreasonably withheld.
6.9 STC undertakes that during the "Restricted Period" it will not, without the
prior written consent of the Buyer (which consent shall not be unreasonably
withheld), do or permit or cause to be done any of the following:
(a) retire from the Adda Settlement;
(b) appoint any new or additional trustee(s) to the Adda Settlement;
and/or
(c) vest or cause to vest any of the property of the Adda Settlement in
any new or additional trustee(s).
6.10 The Buyer agrees that any claim arising against the Warrantors out of or
in
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connection with this Agreement and/or any Supplemental Agreement shall
first be brought against the Escrow Fund; provided however, that if any
claim is not satisfied (whether in whole or in part) out of the Escrow
Fund, the Buyer shall be entitled to bring such claim directly against any
of the Warrantors in accordance with their respective liabilities under
this Agreement and any such claim brought against any of the Warrantors may
be satisfied (in whole or in part), at the option of the Warrantors in cash
or by transfer to the Buyer of such number of Buyer's Shares (as valued in
accordance with clause 6.3 of the Escrow Agreement) as may be required to
satisfy such claim.
6.11 The "Restricted Period" shall be a period which is the earlier of one year
from Completion or the date upon which the Buyer has completed its first
audit of the Buyer's consolidated financial statements; provided however to
the extent that any claim is made by the Buyer in connection with this
Agreement and/or any Supplemental Agreement such one year period shall be
extended until the date when such claim is resolved or satisfied.
7. LIMITATIONS ON WARRANTORS' LIABILITY
7.1 The provisions of this clause 7 shall operate to limit the liability of the
Warrantors in respect of any claim under or in connection with the
Warranties. For the avoidance of doubt, unless expressly provided
otherwise, clause 8 is in no way limited by the provisions of this clause
7.
7.2 The Warrantors shall not be liable under the Warranties (or, where
relevant, under the indemnities contained in clause 8) in respect of any
claim:
(a) unless the aggregate amount of all claims under this Agreement and/or
the Supplemental Agreements exceeds forty thousand pounds sterling
(pound 40,000); provided however, that if the aggregate liability in
respect of all such claims exceeds forty thousand pounds sterling
(pound 40,000), then the Buyer shall be entitled to pursue recovery of
all claims, including without limitation all claims previously
notified;
(b) to the extent that the aggregate amount of the liability of the
Warrantors for all claims made under the Warranties or the indemnities
would exceed five hundred thousand pounds sterling (pound 500,000);
provided however, that this sub-clause 7.2(b) shall not apply to any
claim relating to any criminal fine or penalty for which the liability
of the Warrantors shall be unlimited;
(c) unless notice of such claim is given in writing (stating in reasonable
detail the specific matters in respect of which the claim is made) by
the Buyer to the Warrantors within the earlier of twelve (12) months
after the date of Completion, or the date upon which the Buyer has
completed its first audit of the Buyer's consolidated financial
statements; and/or
(d) (i) to the extent that the liability of the Trustees in respect of
any claim
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would exceed the proportion of the claim which equals the
proportion of the total consideration received by them on behalf
of their respective trust or settlement as appropriate; and
(ii) without prejudice to clause 6.8, to the extent that any claim
against the Trustees of the Adda Settlement or the Childrens'
Trusts exceeds the assets of the relevant trust or settlement as
appropriate.
For the avoidance of doubt this clause 7.2(d) shall in no way limit
the liability of Mr Adda.
7.3 Any claim made by the Buyer for breach of Warranty shall be reduced by the
amount of any payment made by any of the Warrantors in respect of the same
facts or circumstances pursuant to the provisions of the Tax Covenant and
vice versa.
7.4 Where any of the Warranties is qualified by the phrase "so far as the
Warrantors are aware" or any similar phrase, the Warrantors shall be deemed
to have made reasonable enquiry with regard to the subject matter of such
Warranty.
7.5 Neither party shall be entitled to rescind this Agreement after Completion
in any circumstance.
7.6 No liability shall attach to the Warrantors in respect of any claim under
the Warranties:
(a) unless notice is given by the Buyer to the Warrantors of the relevant
facts of that claim as soon as reasonably practicable; provided
however, that if the Buyer and/or the Company in its sole discretion
seeks indemnification in respect of any such claim from any insurer,
the Buyer shall only be required to give notice to the Warrantors
under this clause 7.6 at the same time as the Buyer and/or the Company
(as the case may be) gives written notice of the claim to the insurer;
or
(b) in respect of any fact or matter of which the Buyer has actual
knowledge as at Completion that would, but for this sub-clause 7.6(b),
entitle the Buyer to make a claim against the Warrantors for breach of
any of the Warranties; provided however, that, for the avoidance of
doubt, actual knowledge on the part of the Buyer shall in no way be
imputed or deemed by virtue of the delivery at any time of any papers,
documents and/or other materials (on any media) by or on behalf of the
Sellers (or any of them) to the Buyer, its employees, officers, agents
and/or representatives.
7.7 In the event that the Buyer or the Company is entitled to recover any sum
(whether by payment, discount, credit or otherwise) from any third party in
respect of any matter for which a claim could be made against the
Warrantors, the Buyer shall use, or procure that the Company shall use, its
reasonable endeavours to recover such sum before making the claim, and any
sum recovered will reduce
-15-
the amount of the claim; and, in the event of the recovery being delayed
until after the claim has been satisfied by the Warrantors, the Buyer shall
account to the Warrantors in respect of any amount so recovered (after
deduction of all reasonable costs and expenses of the recovery) up to the
amount of the payment.
7.8 In the event that a claim under the Warranties against the Warrantors
arises as a result of or in connection with a liability to or a dispute
with any third party, no such liability or dispute shall be admitted,
settled or discharged without the written consent of the Warrantors and the
Buyer shall (provided that it is indemnified to its reasonable satisfaction
by the Warrantors against any costs, expenses, liabilities, penalties
and/or fines which may be incurred by the Buyer and/or the Company in
taking such action) take and shall procure that the Company shall take such
action to avoid, dispute, resist, appeal, compromise or contest such
liability or dispute as may be agreed between the parties.
7.9 No liability shall attach to the Warrantors in respect of any claim:
(a) under the Warranties or indemnities to the extent that such claim
relates to any loss for which the Buyer or the Company is indemnified
by insurance or for which it would have been so indemnified if at the
relevant time there had been maintained valid and adequate insurance
cover of a type in force in relation to the Company at the date of
Completion;
(b) to the extent that provision or reserve in respect of the matter or
thing giving rise to such claim has been specifically provided for or
detailed and noted in the Last Accounts;
(c) if such claim would not have arisen but for a change in the rate of
tax or a change in legislation made after the date hereof or a change
in the interpretation of the law after the date hereof or a change by
the relevant tax authority in the method of applying or calculating
the rate of tax after the date hereof or a change in any extra
statutory concession previously made by any revenue authority (whether
or not such change purports to be effective retrospectively in whole
or in part) or if such claim would not have arisen but for any
judgment delivered after the date hereof;
(d) to the extent that such claim would not have arisen but for a change
in the treatment of assets and liabilities or of the tax attributable
to timing differences (including capital allowances) in future
accounts of the Company or but for any other change in the accounting
bases upon which the Company prepares its future accounts;
(e) to the extent that such claim would not have arisen but for an
omission or a voluntary act or transaction (other than an omission,
act or transaction carried out pursuant to a legally binding
obligation created on or before Completion) occurring after Completion
otherwise than in the ordinary course of business; or
-16-
(f) if and to the extent that such claim would not have arisen or would
have been reduced or eliminated but for a failure on the part of the
Company to make any claim, election, surrender or disclaimer or give
any notice or consent or do any other thing after Completion the
making, giving or doing of which was taken into account in preparing
the Last Accounts and specifically notified to the Buyer on or before
Completion.
(g) for the avoidance of doubt, the provisions of clauses 3.1(a) to (k),
3.3, 3.4, 4, 5, 6, 9, 11 and 12 of the Tax Covenant shall apply
mutatis mutandis in relation to any claim or claims in respect of any
of the Warranties contained in Section 13 of Schedule 4 of this
Agreement other than as they relate to PAYE or National Insurance
contributions. In respect of any claim or claims in respect of the
Warranties as they relate to PAYE or National Insurance contributions,
the provisions of clauses 3.2(a) to (e), 3.3, 3.4, 4, 5, 6, 9, 11 and
12 of the Tax Covenant shall apply mutatis mutandis.
8. INDEMNITIES
8.1 Subject always to the limitations on liability contained in sub-clauses
7.2(a), (b) and (d)), and 7.9(a) and (b) for the period ending on the
earlier of one year after the date of Completion or the date upon which the
Buyer has completed its first audit of the Buyer's consolidated financial
statements, the Warrantors shall be jointly and severally liable to the
Buyer (for itself and as trustee for the Company) for any Property
Liability and shall indemnify (and shall at all times keep fully and
effectively indemnified) the Buyer and the Company in respect thereof.
8.2 The provisions of this clause 8 shall be in addition to, and not in
limitation of, any other rights or remedies which the Buyer may have under
this Agreement, any Supplemental Agreement or otherwise.
8.3 The Warrantors shall have no liability to the Buyer in respect of the
Property Liability in the event that the Buyer uses (for planning purposes)
the Property other than in accordance with the terms of the Leases.
9. BUYER'S WARRANTIES
The Buyer represents and warrants that:
(a) it is a corporation duly organised and existing under the laws of the
State of Washington, U.S. and that the Buyer has all necessary
corporate power and authority to own, lease and operate its properties
and assets and to carry on its business as now conducted and as
proposed to be conducted; and
(b) it has the full corporate power and corporate authority to enter into
this Agreement and to carry out the terms of this Agreement. The
Buyer has taken all corporate action necessary to authorise the
execution, delivery and
-17-
performance of this Agreement. This Agreement has been duly and
validly executed and delivered by the Buyer, and is binding upon and
enforceable against the Buyer in accordance with its terms, except as
enforceability may be limited or affected by applicable bankruptcy,
insolvency, reorganisation or other laws of general application
relating to or affecting the rights of creditors, and except as
enforceability may be limited by rules of law governing specific
performance, injunctive relief or other equitable remedies.
10. RESTRICTIVE COVENANTS
10.1 In this clause 10:-
(a) "Business" means the provision of information technology
training services as carried on by the Company
as at Completion;
(b) "Prohibited Area" means England, Wales, Scotland, Northern
Ireland, Eire, Channel Isles and/or the Isle of
Man; and
(c) "Senior Staff" means collectively all employees and/or
contractors of the Company who as at Completion
are training and/or lecturing contractors,
sales directors and/or managers, team leaders,
sales and/or account managers, training
directors and/or managers, technical directors
and/or managers, financial controllers and/or
management accountants.
10.2 In further consideration of the sale and purchase effected by this
Agreement and in order to protect the goodwill of the Company, each
Warrantor hereby undertakes with the Buyer as follows:-
(a) he shall not at any time hereafter divulge or communicate to any
person for his own or any other person's benefit or to the detriment
or possible detriment of the Company, the Business, the Buyer or any
other member of the Buyer's Group, any of the trade secrets or other
confidential information of the Company, or of any client, customer
or supplier of the Company, which has or may come to his knowledge;
(b) if he has obtained trade secrets or other confidential information
belonging to any third party under an agreement which contained
restrictions on disclosure he will not at any time infringe such
restrictions;
(c) he will not either directly or indirectly as a director, employee,
partner or
-18-
greater than three percent (3%) shareholder within two (2) years
after Completion carry on, or be engaged, concerned or interested in
carrying on, any business which is the same or substantially similar
to the Business within the Prohibited Area in competition with the
Company;
(d) in connection with any business competing or likely to compete with
the Business, he will not use any business name, trade name, trade
xxxx or logo used by the Company or any confusingly similar business
name, trade name, trade xxxx or logo;
(e) he will not within two (2) years after Completion solicit or accept
the custom or business of, interfere with, or endeavour to entice
away from the Company any person who at any time during the two (2)
years immediately preceding Completion was a client, customer or
supplier of the Company;
(f) he will not within two (2) years after Completion employ, seek to
employ, interfere with, or endeavour to solicit or entice away from
the Company, any Senior Staff; and
(g) he will not do any of the above-mentioned things directly or
indirectly, with or for or on behalf of any other person.
10.3 Subject always to the provisions of clause 10.6, each of the Warrantors
shall procure that each of his Associates (including, without limitation,
GTS) shall be bound by and observe the provisions of clause 10.2 as if
each Associate were a party covenanting with the Buyer. For the avoidance
of doubt, nothing in this Agreement shall prevent Mr Adda or GTS from
carrying on the GTS Business through GTS London or otherwise.
10.4 The parties confirm that they consider the restrictions contained in this
clause 10 to be reasonable in all respects, but if any such restriction
is held to be invalid or ineffective, but would not be so held if some
part of it were deleted, or some modification were made to its terms, the
parties agree that such restriction shall apply with such deletion or
modification as may be necessary to make it valid and effective.
10.5 The provisions of sub-clauses 10.2(a) to (g) inclusive are separate and
severable undertakings and shall be enforceable accordingly.
10.6 Notwithstanding the provisions of this clause 10, GTS London shall be
entitled to provide Services (as defined in the GTS Services Agreement)
to the Company strictly and solely in accordance with the GTS Services
Agreement and shall be entitled to use the personal services of Mr Adda
for the purposes of discharging its obligations to perform such Services;
provided however, that nothing in the GTS Services Agreement shall
otherwise limit, restrict or otherwise affect the provisions of this
clause 10 in so far as they apply to GTS and/or Mr Adda.
-19-
10.7 In the event that, during the period of two years from Completion, any
person wishes to purchase GTS, Mr Adda, as director of GTS London, will
procure that any purchaser will be bound by the provisions of subclauses
10.1, 10.2(c), (d), (e) and (f).
11. GENERAL
11.1 This Agreement shall be binding on and enure for the benefit of the
successors in title and assigns of the parties to this Agreement.
11.2 The Buyer may assign this Agreement and/or any Supplemental Agreement, in
whole or in part, or any or all of its rights under the same to Oxford or
to any other member of the Buyer's Group. Save as aforesaid, no party
shall be entitled to assign this Agreement and/or any Supplemental
Agreement, in whole or in part, or any or all of its/their rights and/or
obligations under the same without the prior written consent of the other
parties.
11.3 Without prejudice to the generality of clause 11.2 and for the avoidance
of doubt, any assignment by the Buyer of any of its rights under this
Agreement to Oxford or to any other member of the Buyer's Group may be
partial so that the benefit of the Warranties or any indemnities and/or
guarantees in this Agreement and/or any Supplemental Agreement may enure
to the benefit of the holder(s) for the time being of the Shares in
proportion to their respective interests.
11.4 Each of the Warrantors undertakes that he and any necessary third party
shall execute such deeds and documents and do all such other acts and
things as may be required to vest the Shares in the Buyer and otherwise
to give full force and effect to the provisions and intent of this
Agreement.
11.5 All provisions of this Agreement shall continue in full force and effect
notwithstanding Completion except in respect of those provisions already
performed or expressly waived at Completion.
11.6 Unless expressly stated otherwise, all obligations of the Warrantors
under this Agreement and any Supplemental Agreement shall be joint and
several.
11.7 Any party may release or compromise the liability of, or grant any time,
forbearance or indulgence to, any other party under this Agreement and/or
any Supplemental Agreement without modifying, affecting or prejudicing
any of its rights or remedies against such party.
11.8 Each party's rights and remedies under this Agreement are additional to
any other rights and remedies which may be available to it. No neglect,
delay or indulgence on the part of any party in enforcing any term of
this Agreement and/or any Supplemental Agreement will be construed as a
waiver and no single or partial exercise of any right or remedy under
this Agreement and/or any Supplemental Agreement shall preclude or
restrict the further exercise or enforcement of any
-20-
such right or remedy or any other available right or remedy. No waiver by
any party shall be valid unless in writing and signed by such party or a
duly authorised representative thereof.
11.9 If any term or provision of this Agreement or any Supplemental Agreement
is held to be illegal or unenforceable, in whole or in part, under any
enactment or rule of law, that term or provision shall to that extent be
deemed not to form part of this Agreement or such Supplemental Agreement
but the enforceability of the remainder of this Agreement or such
Supplemental Agreement shall not be affected.
11.10 Without prejudice to the provisions of clause 5.1, none of the parties
shall make any announcement or otherwise publicise this Agreement, any
Supplemental Agreement and/or any of its/their terms without the prior
written approval of the other parties hereto, unless required by law or
applicable regulation and then only after prior consultation with the
other parties.
11.11 Unless otherwise agreed by the parties, each party shall bear all
professional and other fees, costs and expenses incurred by it in
connection with this Agreement and/or any and all Supplemental Agreements
and all acts and events contemplated by it/them.
11.12 Time shall be of the essence of this Agreement except as expressly
otherwise agreed in writing between the parties, both as regards the
dates and periods specifically mentioned, and as to any substituted dates
and periods agreed in writing by the parties.
11.13 This Agreement and all Supplemental Agreements together constitute the
entire agreement between the parties relating to their subject matter and
supersede all previous agreements and understandings between the parties
with respect thereto.
11.14 Except as expressly provided herein, no variation of this Agreement or
any Supplemental Agreement shall have effect unless it is in writing and
signed by each party or a duly authorised representative of each party to
this Agreement.
11.15 This Agreement may be executed in any number of counterparts each of
which when executed shall be an original but all the counterparts
together shall constitute one and the same instrument.
11.16 If any term or provision of this Agreement (or of any agreement or
arrangement of which this Agreement forms part) renders this Agreement,
or the said agreement or arrangement, liable to registration under the
Restrictive Trade Practices Xxx 0000, that term or provision will not
take effect until the day after particulars of this Agreement, or the
said agreement or arrangement, have been duly furnished to the Director
General of Fair Trading for registration in accordance with the
requirements of such Act.
-21-
12. NOTICES
12.1 Any notice or other communication to be given under or in connection with
this Agreement shall be in writing, addressed to the party to be served
and delivered personally or sent by international overnight courier or by
facsimile:
(a) in the case of an individual, to the address herein stated; and
(b) in the case of a company or corporation, to its principal place of
business for the time being,
or (in either case) to such other address as the addressee may from time
to time specify for the purpose of, and in accordance with the provisions
of, this clause 12.
12.2 In the absence of evidence of earlier receipt, a notice or other
communication is deemed given:
(a) if delivered personally, when left at the address referred to in
clause 12.1;
(b) if sent by international overnight courier, three (3) Business Days
after having been deposited with an international overnight courier;
and
(c) if sent by facsimile, three (3) hours after completion of its
transmission if transmitted before 2.00 pm on any Business Day and
otherwise by 11.00 am on the next Business Day.
12.3 In proving the giving of notice it shall be sufficient to prove that the
notice was left or that the envelope containing such notice was properly
addressed and deposited with an international overnight courier or that
the facsimile was transmitted.
13. GOVERNING LAW
This Agreement shall be governed by and construed exclusively in
accordance with English Law and the parties submit to the non-exclusive
jurisdiction of the English Courts.
THIS DOCUMENT is executed as a deed and delivered on the day and year first
above written.
-22-
SCHEDULE 1
----------
THE SELLERS
(1) (2) (3) (4)
FULL NAME ADDRESS NUMBER OF NUMBER
SHARES TO OF BUYER'S
BE SOLD SHARES
(1) Xxxxx Xxx 2 Xxxxx Villas 30 8,358
Xxxxx Xxxx
Xxxxxxxxx
Xxxx Xxxxxxxxxxx
Xxxxx XX00 0X0
(2) Xxxxx Xxxxxx Smouha Adda 00 Xxxxxx Xxxxxx 17 4,736
and Pernille Adda as Xxxxxx XX0 0XX
trustees of the Olivia
Adda Settlement
(3) Xxxxx Xxxxxx Xxxxxx Xxxx 00 Xxxxxx Xxxxxx 17 4,736
and Pernille Adda as Xxxxxx XX0 0XX
trustees of the Jacques
Adda Settlement
(4) Xxxxx Xxxxxx Xxxxxx Xxxx 00 Xxxxxx Xxxxxx 17 4,736
and Pernille Adda as Xxxxxx XX0 0XX
trustees of the Xxxxxxx
Adda Settlement
(5) Xxxxx Xxxxxx Xxxxxx Xxxx 00 Xxxxxx Xxxxxx 10 2,786
and Pernille Adda as Xxxxxx XX0 0XX
trustees of the Xxxxxxxx
Adda Settlement
(6) STC International Limited XX Xxx 000 000 000,000
as trustee of teh Adda Roadtown
Settlement Tortola
British Virgin
Islands
Total 278,611
=======
-23-
SCHEDULE 2
DETAILS OF THE COMPANY
COMPANY NUMBER: 02502655
DATE AND PLACE OF INCORPORATION: 16 May 1990 in England and Wales
as Avalock Limited
CHANGE OF NAME: 13 December 1991 to Barefoot PC Training Limited
23 July 1993 to Barefoot Computer Training Limited
SHARE CAPITAL: Authorised Allotted and Issued
---------- -------------------
100 pounds divided into 1,000 ordinary shares
1,000 shares of 10 xxxxx each of 10 xxxxx each
ISSUED SHARES HELD BY:
Shareholder Number of Shares
----------- ----------------
Xxxxx Xxx 30
Xxxxx Xxxxxx Smouha Adda and Pernille Adda
as trustees of the Olivia Adda Settlement 17
Xxxxx Xxxxxx Xxxxxx Xxxx and Pernille Adda
as trustees of the Jacques Adda Settlement 17
Xxxxx Xxxxxx Xxxxxx Xxxx and Pernille Adda
as trustees of the Xxxxxxx Adda Settlement 17
Xxxxx Xxxxxx Xxxxxx Xxxx and Pernille Adda
as trustees of the Xxxxxxxx Adda Settlement 10
STC International Limited
as trustee of the Adda Settlement 909
REGISTERED OFFICE: Telephone House, 00 Xxxx Xxxxxx, Xxxxxx XX0X 0XX
DIRECTORS: Xxxxx Xxxxxx Smouha Adda
Pernille Adda
SECRETARY: Xxxxx Xxxxxx Xxxxxx Xxxx
ACCOUNTING REFERENCE DATE: 30 November
-24-
AUDITORS: Xxxxxx Xxxxxxx, Cliffords Inn, Xxxxxx Xxxx, Xxxxxx XX0X 0XX
TAX DISTRICT AND REFERENCE NUMBER: King's Cross 2; 656 76220 00906A07
VAT REGISTRATION NUMBER AND LOCAL VAT OFFICE: 607821543 City VAT office
-25-
SCHEDULE 3
THE PROPERTY
Sixth Floor North Wing and South Wing, 00-00 Xxxx Xxxxxx, Xxxxxx XX0, more
particularly described in the Leases
-26-
SCHEDULE 4
THE WARRANTIES
1. AUTHORITY OF THE SELLERS
1.1 The Company is duly incorporated and validly existing under the laws of
England and Wales.
1.2 When executed, this Agreement and all Supplemental Agreements will
constitute valid and binding obligations on each of the Warrantors in
accordance with their respective terms.
1.3 The execution and delivery of, and the performance by the Warrantors of
their obligations under, this Agreement and/or any the Supplemental
Agreement shall not result in:
(a) any regulation or provision of the Company's memorandum and/or
articles of association being breached in any way;
(b) any breach of any agreement, licence or other instrument to which
any of the Warrantors or the Company is a party or is bound;
(c) the creation of any Encumbrance over the undertaking or any of the
assets of the Company;
(d) any third party having the right to terminate or modify any
agreement, licence or other instrument to which any of the
Warrantors or the Company is a party or is bound; or
(e) any breach of any order, judgment or decree of any court,
government agency or regulatory body.
1.4 The Shares comprise the entire allotted and issued share capital of the
Company, have been properly and validly allotted and issued and are
fully paid. No person has any other right or entitlement whatsoever over
or in respect of the capital of the Company and, since the Last Account
Date, the Company has not redeemed or purchased or agreed to redeem or
purchase any of its share capital.
1.5 The Shares are free from all Encum brances and there are no arrangements
or obligations to create any such Encumbrances at any time in the
future.
2. INFORMATION GIVEN TO THE BUYER
-27-
2.1 All information contained or referred to in this Agreement, the
Disclosure Letter and/or any documents accompanying the Disclosure
Letter (excepting only third party documents) is true and accurate in
all material respects.
2.2 All information contained or referred to in any third party documents
accompanying the Disclosure Letter is so far as the Warrantors are aware
true and accurate in all material respects.
2.3 All information given by or on behalf of the Warrantors to the Buyer
and/or its agents, employees and/or professional advisors relating to
the business, activities, affairs, assets and liabilities of the Company
was when given and now is fair and accurate in all material respects.
There are no material facts or matters in relation to the assets,
business or financial condition of the Company which so far as the
Warrantors are aware have not been fairly and accurately disclosed in
writing to the Buyer (other than those material facts or matters which
may be actually known by the Buyer).
3. CORPORATE MATTERS
3.1 The Company has complied in all material respects with all provisions
and requirements of the Act and all returns, particulars, resolutions
and other documents, required to be delivered to the Companies Registry
or any other authority have been duly and properly made and delivered.
3.2 The register of members and other statutory books of the Company have
been properly kept and are complete and up to date.
4. ACCOUNTS
4.1 All accounts, books, ledgers, financial and other records of any kind
whatsoever of the Company are in its possession, up to date and have
been fully and accurately maintained in accordance with all applicable
law on a proper and consistent basis and give a true and fair view of
the matters required to be dealt with therein.
4.2 The Audited Accounts:
(a) comply with the provisions of the Act and all other applicable law
in force at the relevant date;
(b) comply with all current SSAPs applicable to a United Kingdom
company;
(c) give a true and fair view of the financial position and state of
affairs of the Company at the Accounts Date;
(d) have been prepared on a basis consistent with that adopted in
preparing the Company's audited accounts for the last two
financial periods;
-28-
(e) make proper provision for all actual liabilities;
(f) make proper and reasonable provision for all contingent
liabilities which are required to be provided for in compliance
with the Act, all other applicable law and all SSAPs applicable to
a United Kingdom company on the relevant date; and
(g) include stock and work in progress figures which in the
circumstances existing at the Accounts Date do not exceed the
amounts which could reasonably be expected to be realised in the
normal course of the Company's business.
4.3 The Management Accounts have been prepared with reasonable skill and
care and fairly present the state of affairs and financial position of
the Company for the two monthly periods ended on 31 December 1997 and
31 January 1998.
5. TRADING
5.1 Since the Last Accounts Date:
(a) the business of the Company has been continued in the ordinary
course and as a going concern and the Company has not assumed or
incurred any material liabilities which have or will have a
material effect on the financial position of the Company;
(b) there has been no deterioration in the turnover or the financial
or trading position or prospects of the Company and, so far as the
Warrantors are aware, no event, fact or matter has occurred or is
likely to occur which will or is reasonably likely to result in
any such deterioration;
(c) no capital commitments have been entered into by or on behalf of
the Company;
(d) the Company has paid its creditors in accordance with their
respective terms; and
(e) no dividend or other distribution has been declared, paid or made
to any member of the Company.
5.2 The Disclosure Letter contains particulars of all material contracts and
engagements, whether written or oral, to which the Company is a party at
the date of this Agreement.
5.3 The Company has not manufactured, sold or supplied products or services
which are or were or will become in any material respect faulty or
defective, or which were negligent, or which do not comply in any
respect with all specifications,
-29-
warranties and representations, express or implied, made in relation to
them, or with all applicable regulations, standards and requirements.
5.4 The Company is not liable (save as may be implied by law) to service,
repair, maintain, take back or otherwise do anything in respect of any
goods or services that have been delivered by it.
5.5 No major customer or supplier of the Company has ceased to do business
with the Company since the Last Accounts Date and so far as the
Warrantors are aware no such customer or supplier intends to cease to do
business with the Company or substantially reduce its existing level of
business with it.
5.6 The Company has not entered into any transaction in which the Sellers,
the directors and/or managers of the Company and/or any of their
Associates (including without limitation GTS), was interested, directly
or indirectly.
5.7 The Disclosure Letter contains full details of all grants made to the
Company by any governmental department or authority or similar body, the
Company has no liability to repay any such grant and no circumstances
have arisen under which any such body could require repayment.
6. ASSETS
6.1 The Company owned at the Last Accounts Date and still owns, and had and
still has a good title to, all assets included in the Last Accounts or
acquired since that date and no asset is the subject of any assignment
or Encumbrance, except current assets since sold or realised in the
ordinary course of business.
6.2 The assets (including without limitation the Intellectual Property)
owned by the Company, together with the assets held under licence, hire
purchase, leasing or rental agreements, comprise all the assets,
property and rights which are necessary for the continuation of the
business of the Company as now conducted.
6.3 At least ninety-five percent (95%) of the book debts owed to the Company
included in the Last Accounts were, and at least ninety-five (95%) of
the book debts owed to the Company as at Completion will be, collected
in full in the ordinary course of business (that is, not more than
twenty (20) weeks after the date the debt was incurred).
6.4 The Company has all licences, consents, authorisations, orders,
warrants, permissions and other approvals necessary or desirable for
carrying on the Company's business and operations as at the date of
Completion and the same shall continue in full force and effect after
Completion and shall not be affected in any way by the transaction
contemplated by this Agreement and/or any Supplemental Agreement.
7. FINANCE
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There are no overdrafts, loans and/or other financial facilities
outstanding or available to the Company.
8. THE COMPANY'S OFFICERS, EMPLOYEES AND CONTRACTORS
8.1 (a) The Disclosure Letter contains true, complete and accurate
particulars of all Employees of the Company and the dates of
commencement of employment and the terms of employment of all such
Employees; and
(b) to the best of the knowledge and belief of the Warrantors after
reasonable inquiry, the Disclosure Letter contains true, complete
and accurate particulars of all contractors of the Company and the
dates of commencement of appointment to office and the terms of
appointment of all such contractors.
8.2 The Company has complied with all statutory and other regulations and
obligations in relation to its Employees and contractors and all former
employees and contractors.
8.3 The Company is not a party to any bonus, profit-sharing, share option,
share incentive or other incentive scheme, arrangement or agreement for
or affecting any directors, shareholders, contractors or Employees or
any former directors, shareholders, contractors or employees.
8.4 There are no collective bargaining arrangements or agreements and no
other agreements or arrangements between the Company and a trade union
or other body representing Employees.
8.5 The Company has paid up to date and in full all remuneration, pension
contributions, benefits and other payments or liabilities due from it in
respect of all Employees, directors and former employees. The Company
does not offer enhanced redundancy payments and has no outstanding
employment claims.
8.6 No director, Employee or contractor of the Company is under notice to
leave his office, employment or contract, given by him or the Company
and there are no proposals to terminate any of the same. No Employee has
left employment with the Company in the last three months.
8.7 There are no terms of employment or other agreements with the Company or
terms of appointment for directors of the Company which provide that a
change of control of the Company however defined shall entitle any
Employee, contractor or director to treat such change of control as a
breach of contract or entitle him to any benefit or payment or to treat
himself as redundant or dismissed or released from any obligation owed
by him to the Company.
8.8 During the period to which the Last Accounts relate and since the Last
Accounts
-31-
Date or (where any employment or office commenced after the beginning of
such period) since the commencement date of the employment or holding of
office:
(a) no change has been made in the rate of remuneration, or the
pension or other benefits, of any director, contractor or Employee
or of any former director, employee or contractor of the Company;
and
(b) no change has been made in any other terms of employment or
appointment of any director, contractor or Employee.
9. PENSIONS
9.1 The Company has no obligation (whether legally enforceable or not) to
provide any life assurance, retirement, redundancy, termination,
pension, death, health or disability benefit or payment to any director,
Employee or contractor or former director, employee or contractor of the
Company or any spouse or dependent of any such person.
9.2 For the purposes of this clause 9.2, "the Pension Scheme" means The Sun
Life Flexible Executive Pension Plan; Policy Number 7955148. As at
Completion and at all times thereafter, the Company shall have no
liability of any kind whatsoever and shall suffer no losses, claims,
demands, charges, costs and/or expenses of any kind whatsoever arising
out of or in connection with the Pension Scheme. All contributions,
fees, premiums, charges and/or expenses of whatever nature relating to
the Pension Scheme and/or members thereof which have fallen due at or
before Completion have been paid in full and, as at Completion, no
services have been rendered or requested which have not been paid for in
full.
9.3 The Company is not under any legal or moral liability or obligation, or
a party to any ex gratia arrangement or promise whether written or
verbal, to pay pensions, gratuities, superannuation allowances or the
like, or otherwise to provide "relevant benefits" within the meaning of
Section 612(1) ICTA to or for any of its past or present officers or
employees or their dependants; and there are not now nor have there at
any time been any retirement benefit, or pension or death benefit, or
similar schemes or arrangements in relation to or binding on the Company
or to which it contributes nor have there been any announcements as to
the introduction of any such scheme or arrangement.
10. INSURANCE
10.1 All assets, property, rights, Intellectual Property, officers and
Employees capable of being insured are and have at all material times
been adequately insured against:
(a) fire and all risks (including but not limited to professional
indemnity)
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prudently or usually covered by companies carrying on similar
businesses to that of the Company; and
(b) accident, physical loss or damage, confiscation or detention of
any such assets by a foreign government, third party (including
product) liability and environmental liability.
10.2 The Company's insurances are all valid and in force, nothing has been
done or omitted or not disclosed which might breach, invalidate or
render them illegal or otherwise unenforceable and all premiums have
been paid up to date.
10.3 Details of all current insurance policies of the Company, and of all
current or outstanding claims and of all claims paid in the preceding
claims three (3) years are included in or annexed to the Disclosure
Letter.
11. LEGAL PROCEEDINGS
11.1 In the carrying on of its business and operations, the Company has not
materially breached any applicable law or any of the Company's
constitutional documents.
11.2 The Company has not in the last three (3) years been and is not engaged
in, and/or has not threatened to commence or been threatened with, any
claim, litigation, prosecution, proceeding, suit, legal action,
investigation, enquiry, arbitration or other legal or disciplinary
proceedings, any tribunal, enquiry or commission proceedings, or any
industrial dispute and so far as the Warrantors are aware there are no
circumstances which might give rise to the same.
11.3 In respect only of Taxation, the Company has not at any time been and is
not engaged in, and/or has not threatened to commence or been threatened
with, any claim, litigation, prosecution, proceeding, suit, legal
action, investigation, enquiry, arbitration or other legal proceedings,
and so far as the Warrantors are aware there are no circumstances which
might give rise to the same.
12. INSOLVENCY
12.1 No order has been made or resolution passed or meeting convened for the
winding up of the Company and there is no outstanding petition to wind
up the Company, or appoint an administrator or receiver of all or any
part of its undertaking or assets, nor has any such order been made nor
(so far as the Warrantors are aware) has any step been taken for or with
a view to the appointment of such a person.
12.2 No distress, execution or other process has been levied and remains
undischarged in respect of the Company and there is no outstanding
judgment or court order against the Company.
12.3 The Company is neither insolvent nor unable to pay its debts as they
fall due.
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13. TAXATION
13.1 In this section 13 of this Schedule 4:-
"Taxation" means any and all forms of taxes levies imposts contributions
duties and charges (including any relevant fine, penalty, surcharge or
interest) in all cases in the nature of tax or corresponding to tax and
all withholdings or deductions in respect thereof, of whatever nature
and whenever imposed, imposed or levied by any Tax Authority acting as
such whether directly or primarily chargeable against recoverable from
or attributable to the Company or any other person; and
"Tax Authority" means any governmental, federal, state, provincial,
local governmental or other, fiscal, tax, revenue, customs, duties or
excise authority, body or official, whether of the United Kingdom or
elsewhere in the world charged by statute with the collection or
administration of Taxation.
13.2 (a) The Company has properly and within the requisite periods made all
returns and provided all information which at any time it has been
liable to make or provide for any purposes of Taxation.
(b) The Company has duly and within the requisite periods made or
given all elections, claims, notices and which are assumed to have
been made or given in computing the charge or provision (if any)
for Taxation in, or in preparing any of the Last Accounts or the
audited accounts of the Company for any period of account ended on
or before 30 November 1997.
(c) The Company has duly and within the requisite periods paid or
accounted for all Taxation which it is liable to pay or account
for and is not liable to pay and has not within the six years
prior to the date hereof paid or been liable to pay, any fine,
interest or penalty in connection with any Taxation.
13.3 (a) The Company has not at any time in the six years prior to the date
hereof paid and will not as a result of the entry into or
Completion of this Agreement become liable to pay;
(i) any Taxation primarily chargeable against or assessable on
another person (whether or not the Company has a right of
recovery from that other person); or
(ii) any Taxation pursuant to Xxxxxxx 000, 000, 000 XXXX 1992 or
Part XI ICTA 1988.
(b) All Taxation for which the company is or may be jointly and
severally liable with any other person has been duly,fully and
punctually paid by that other person within the requisite periods.
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13.4 (a) No appeal is currently outstanding against any assessment or other
demand in respect of any Taxation.
(b) No enquiry or investigation is being made by any Taxation
Authority or into the Taxation affairs of the Company or into or
in respect of any returns or computations relating to Taxation
made by the Company and the Company has not received any written
notification that any such enquiry or investigation is to be made.
14. PROPERTY
14.1 The Company does not own or occupy any land and buildings other than the
Property.
14.2 The Company has good title to the Property.
14.3 No person other than the Company is in occupation of or in receipt of
any rents or profits from the Property.
14.4 The Property is free from any mortgage, debenture, charge, rent-charge,
lien or other encumbrance.
14.5 The Property is not subject to any restrictive covenants, stipulations,
easements or other rights vested in third parties.
14.6 The Company has not received complaint of any breach of any applicable
statutory or bye law requirements of any competent authority or any
provisions of the Planning Acts in respect of the Property and no
development of the Property has been undertaken by the Company in breach
of any applicable law, there is no outstanding notice relating to the
Property or any business carried on thereat or the use thereof and there
is no outstanding monetary claim or liability, contingent or otherwise,
in respect of the Property.
14.7 The Company has occupied the Property since the date of the grant of the
Leases and it has used the whole of the Property continuously as a
computer and information technology training establishment during the
period save in respect of approximately one thousand five hundred
(1,500) square feet of the Property which has been used as ancillary
offices.
14.8 The Company has paid the rent and so far as the Warrantors are aware the
Company has not at any time received notice of any breach of the
covenants under the terms of any lease in all material respects under
which the Company holds or occupies the Property and no rent reviews are
currently in progress affecting the Property.
14.9 So far as the Warrantors are aware, the Company has not at any time
received notice of any breach of any covenant, condition or agreement
contained in the
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Leases on the part of the landlord or the Company and the landlord has
not refused to accept rent or made any complaint or objection.
14.10 So far as the Warrantors are aware, the Company has not at any time
received notice from any person alleging breach by the Company or any
such previous owner, lessee, licensee or occupier of any Environmental
Laws.
15. INTELLECTUAL PROPERTY
15.1 The Disclosure Letter contains particulars of all Intellectual Property
of the Company as at Completion including without limitation any
Intellectual Property licensed to the Company by any third party and
licensed by the Company to any third party.
15.2 The Intellectual Property constitutes all intellectual property and
other proprietary rights and interests necessary for the continuation of
the business of the Company as at Completion and all Intellectual
Property is:
(a) legally and beneficially owned by, licensed to or used under the
owner's authority by the Company;
(b) so far as the Warrantors are aware, valid and enforceable;
(c) not being infringed or attacked or oppressed by any person;
(d) not subject to any licence or authority in favour of another; and
(e) in the case of such Intellectual Property as is registered or the
subject of application(s) for registration, all renewal fees which
are due and steps which are required for its maintenance and
protection have been paid and taken,
and the Company has not received any claims or applications or notice of
legal proceedings which if progressed might be material to the above
Warranties.
15.3 The Company does not use any third party intellectual property and/or
proprietary rights or interests other than the Intellectual Property or
so far as the Warrantors are aware, infringe any third party
intellectual property rights or interests and the Company is not liable
to pay any royalty or similar sum which is material in the context of
the Company's business. The Company is not a party to any licence which
imposes any materially onerous terms on the Company (including but not
limited to any materially onerous payment terms).
15.4 So far as the Warrantors are aware, all parties' obligations under all
licences and agreements forming part of the Intellectual Property have
been complied with and no disputes have arisen therefrom.
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15.5 The Company has not received nor, so far as the Warrantors are aware, is
it likely to receive any claim under any contract or under section 40 of
the Patents Xxx 0000 for employee compensation, or any assertion of
moral rights in respect of the Intellectual Property.
15.6 There has been and is no misuse of any know-how by the Company.
16. CERTAIN WARRANTIES REGARDING POOLING OF INTERESTS
16.1 The parties initiated discussions regarding the transactions
contemplated by this Agreement on 20 November 1997. This Agreement and
the Supplemental Agreements represent the entirety of the transaction
between the Shareholders and the Buyer's Group.
16.2 The Company is an autonomous, independent and viable operating company,
and has not been a subsidiary or division of another company or
corporation at any time prior to Completion.
16.3 There have not been any inter-corporate investments between the Company
and the Buyer's Group at any time prior to Completion.
16.4 The Company has not changed or altered any equity interest of the
Shares, including but not limited to any distributions to shareholders
and any additional issuances, exchanges or retirements of Shares or any
other securities, options and warrants in contemplation of this
Agreement within two (2) years prior to the date the parties first
initiated discussions regarding the transactions contemplated by this
Agreement and through Completion.
16.5 The Company has not reacquired any Shares prior to Completion.
16.6 No Affiliate of the Company has reduced its risk relative to its common
shareholder position for the thirty (30) days prior to Completion. No
Affiliate of the Company will reduce its risk relative to such position
prior to the publication of financial results covering at least thirty
(30) days of combined operations of the Buyer and the Company post-
Completion.
16.7 All of the Shares of the Company will be transferred to the Buyer at
Completion. There are no warrants, options or other securities other
than the Shares.
16.8 GTS London and GTS Limited are entities of which the ultimate record,
and/or controlling beneficial stockholder is STC as trustee. The nature
of business operations of GTS London and GTS Limited is the GTS
Business. Their operations constitute a separate line of business from
that of the Company. There have been no material business relationships
between the Company and GTS, nor are any committed in the future other
than the Services Agreement between the Company and GTS London. Assets
transferred by the Company to GTS were assets developed for GTS Business
and were transferred at cost.
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16.9 During the past two (2) years, Mr Adda has pursued his interest in the
end user information training business solely through the Company. There
are no assets essential to the operations of the Company that are owned
or controlled by Mr Adda or his Associates.
16.10 The Company has not paid any dividends of any kind during the two years
prior to the date of this Agreement. There have been no other
distributions to Shareholders or financial arrangements other than
normal compensation and performance bonuses. The Company does not
guarantee any debt owed by the Shareholders.
16.11 There have not been any agreements among the Shareholders during the two
years prior to the date of this Agreement that provide for election of
directors other than by a Shareholder vote or that restrict the sale or
transfer of Shares.
16.12 The Company has not disposed of any material assets for the two (2)
years prior to the date of this Agreement.
16.13 The Warrantors have no specific knowledge of any future transactions
which have been planned and which are inconsistent with the combining of
the entire existing interests of the shareholders of the Buyer and the
Company such as (i) agreements to retire or reacquire, directly or
indirectly, all or part of the Buyer's Shares; (ii) financial
arrangements for the benefit of any shareholder; (iii) significant
existing or planned business relationships with any other business owned
by any shareholder; and/or (iv) the Warrantors have no specific
knowledge of disposals of a significant part of the assets of the
Buyer's Group or knowledge of such disposals by the Company other than
disposals in the ordinary course of business and actions taken to
eliminate duplicate facilities or excess capacity.
16.14 STC is a British Virgin Island limited company which serves as Trustee
for the Adda Settlement. No Seller is an officer or director of STC. No
Seller holds any equity interest in STC.
16.15 Based upon the information given to the Company and the Sellers by the
Buyer, in relation to the accounting of this transaction as a pooling of
interests under GAAP, the Company and the Sellers have no actual
knowledge of specific facts which would prevent the Buyer from
accounting for this transaction as a pooling of interests under GAAP.
17. GENERAL
Each Warrantor acknowledges that the Buyer and others will rely upon the
truth and accuracy of the foregoing representations, Warranties and
agreements.
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SCHEDULE 5
MATTERS TO BE SATISFIED AT COMPLETION
PART 1: THE SELLERS
1. The Sellers shall have delivered to the Buyer's Solicitors:
(a) duly executed transfers of the Shares in favour of the Buyer or as
the Buyer may direct;
(b) the certificates for the Shares;
(c) the Tax Covenant duly executed by the Warrantors;
(d) the resignation from office of each Director and secretary of the
Company (except those whom the Buyer has notified to the Sellers in
writing prior to the date of Completion that it wishes to continue in
office) with a written acknowledgement under seal from each of them,
in the agreed form, that he has no outstanding claim against the
Company;
(e) if requested by the Buyer, the resignation of the auditors to the
Company confirming that they have no outstanding claims of any kind
against the Company and containing a statement complying with Section
394(1) of the Act;
(f) GTS Service Agreement in the agreed form to be entered into between
the Company and GTS London duly executed by GTS London;
(g) the Escrow Agreement duly executed by the Sellers, the Company and
the Escrow Agent;
(h) the Investment and Pooling Letter in the agreed form duly executed by
each Seller;
(i) the Letter of Transmittal in the agreed form duly executed by each
Seller;
(j) a duly executed Registration Rights Agreement in the agreed form;
(k) the Promissory Note; and
(l) any and all other Supplemental Agreements required to be executed by
the Warrantors (or any of them) and/or the Company.
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2. The Sellers shall have procured delivery of the following to the Buyer or
as the Buyer may direct:
(a) the certificate of incorporation, certificate(s) of incorporation on
change of name, statutory books (duly made up to Completion) and
common seal (if any) of the Company;
(b) the title deeds relating to the Property;
(c) all books of account and documents of record and all other documents
in the possession or under the control of the Sellers which are the
property of or in the possession of the Company, all complete and up
to date;
(d) bank statements of all bank accounts of the Company to a date not
more than two (2) days before Completion, and reconciliation
statements in respect of each such account up to Completion; and
(e) releases or certificates of non-crystallisation in the form required
by the Buyer of all mortgages and/or charges affecting the Company,
except as may be agreed in writing by the Buyer before execution of
this Agreement.
3. Each of the Sellers shall (and shall procure that each of his Associates
other than GTS shall) have repaid in full any and all monies owing by him
to the Company.
4. The Sellers shall have procured that the Directors have held a Board
Meeting of the Company at which the Directors shall, inter alia but
without limitation:
(a) approve the registration of the transfers of the Shares to the Buyer
or as the Buyer may direct (subject to stamping);
(b) appoint such persons as the Buyer shall nominate as directors and/or
secretary;
(c) accept the resignations referred to in clause 1(d) of Part I of this
Schedule 5;
(d) accept if required by the Buyer the resignation of the auditors and
appoint Price Waterhouse as auditors of the Company;
(e) approve and authorise for execution the GTS Service Agreement
between the Company and GTS London;
(f) replace all current mandates to bankers with new mandates as
required by the Buyer; and
(g) approve and authorise the discontinuation of Mr Adda's pension
arrangements.
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5. The Sellers shall have provided (and shall have procured that the Company
has provided) the Buyer with such information and assistance as is
reasonably necessary to enable the Buyer (and/or its advisers) to complete
to the Buyer's satisfaction a due diligence exercise in respect of the
Company.
PART II: THE BUYER
The Buyer shall have procured delivery to the Sellers of:
(a) a counterpart of the Tax Covenant and the Escrow Agreement duly
executed by the Buyer; and
(b) any and all other Supplemental Agreements required to be executed by
the Buyer.
PART III: GENERAL
1. The Company's current assets minus current liabilities and long-term debt
shall not, as at 31 January 1998, be less than negative two hundred
thousand pounds sterling (-200,000 pounds) and there has been no material
change in that position as at Completion.
2. There shall have been no material change in the Company's financial
position since the Last Accounts Date.
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EXECUTED AS A DEED by )
ARIS CORPORATION
Acting by:
Director ) /s/ Xxxx X. Song, President
Secretary ) /s/ Xxxxxxx X. Xxxxxxx, Xx.
SIGNED AND DELIVERED AS A DEED by ) /s/ Xxxxx Xxxxxx Xxxxxx Xxxx
XXXXX XXXXXX XXXXXX XXXX
in the presence of: ) /s/ Xxxxx Xxxx Xxxxxx
SIGNED AND DELIVERED AS A DEED by ) /s/ Xxxxx Xxx
XXXXX XXX
in the presence of: ) /s/ Xxxxxxxxx Xxxxxxxx
SIGNED AND DELIVERED AS A DEED ) /s/ Xxxxx Xxxxxx Xxxxxx Xxxx
by XXXXX XXXXXX XXXXXX XXXX AND ) /s/ Xxxxx Xxxx Xxxxxx
PERNILLE ADDA AS TRUSTEES OF THE ) By Xxxxx Xxxx Xxxxxx duly
XXXXXX ADDA SETTLEMENT ) authorised attorney for
) Pernille Adda as Trustee of
the Olivia Adda Settlement
in the presence of: ) /s/ Xxxxxxxxx Xxxxxxxx
SIGNED AND DELIVERED AS A DEED ) /s/ Xxxxx Xxxxxx Smouha Adda
by XXXXX XXXXXX XXXXXX XXXX AND ) /s/ Xxxxx Xxxx Xxxxxx
PERNILLE ADDA AS TRUSTEES OF THE ) By Xxxxx Xxxx Xxxxxx duly
JACQUES ADDA SETTLEMENT ) authorised attorney for
) Pernille Adda as Trustee of
the Jacques Adda Settlement
in the presence of: ) /s/ Xxxxxxxxx Xxxxxxxx
SIGNED AND DELIVERED AS A DEED ) /s/ Xxxxx Xxxxxx Smouha Adda
by XXXXX XXXXXX XXXXXX XXXX AND ) /s/ Xxxxx Xxxx Xxxxxx
PERNILLE ADDA AS TRUSTEES OF THE ) By Xxxxx Xxxx Xxxxxx duly
XXXXXXX ADDA SETTLEMENT ) authorised attorney for
) Pernille Adda as Trustee of
the Xxxxxxx Adda Settlement
in the presence of: ) /s/ Xxxxxxxxx Xxxxxxxx
SIGNED AND DELIVERED AS A DEED ) /s/ Xxxxx Xxxxxx Xxxxxx Xxxx
by XXXXX XXXXXX XXXXXX XXXX AND ) /s/ Xxxxx Xxxx Xxxxxx
PERNILLE ADDA AS TRUSTEES OF THE ) By Xxxxx Xxxx Xxxxxx duly
XXXXXXXX ADDA SETTLEMENT ) authorised attorney for
) Pernille Adda as Trustee of
the Xxxxxxxx Adda Settlement
in the presence of: ) /s/ Xxxxxxxxx Xxxxxxxx
SIGNED AND AS A DEED by )
STC INTERNATIONAL LIMITED AS TRUSTEE OF )
THE ADDA SETTLEMENT )
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Acting by: )
Director ) /s/ Xxxxx Xxxx Xxxxxx
By Xxxxx Xxxx Xxxxxx duly
authorised attorney for
STC International Limited as
Trustee of the Adda Settlement
Director/Secretary )
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