EXHIBIT 3.1
THIS AGREEMENT is made the day of 1996.
PARTIES:
1. LAW 737 LIMITED (registration number 3194225 proposing to re-register
as Xxxxxxx.XX Holdings plc) whose registered office is at Carmelite, 00
Xxxxxxxx Xxxxxxxxxx, Xxxxxx XX0X ODX ("the Company"); and
2. THE PERSON whose name and address is set out in column 1 in schedule 1
to this agreement ("the Vendor"); and
3. XXXXXXXX XXX of 0 Xxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 XXX ("the
Pledgee").
INTRODUCTION:
(1) Xxxxxxx.XX Limited (registration number 3069667) ("Xxxxxxx.XX Limited")
was incorporated with limited liability on the 19 June 1995, has its
registered office at 00 Xxxxxxxxxxxxx Xxxxxx XX0X 0XX and has at
today's date an authorised share capital of(pound sterling)10,000
divided into 10,000 ordinary shares of(pound sterling)1 each of which
2 such ordinary shares have been issued and are fully paid.
(2) The Vendor is the beneficial owner with full title guaranteed of all
the issued shares in Xxxxxxx.XX Limited as is more particularly set
opposite his name in column 2 of schedule 1 to this agreement ("the
Sale Shares").
(3) The Vendor entered into a pledge agreement ("the Pledge Agreement")
with the Pledgee on 22 April 1996 in which the Sale Shares were pledged
to the Pledgee by the Vendor. In order to permit the Company to acquire
the Sale Shares with full title guaranteed the Pledgee intends to
terminate the Pledge Agreement and enter into a new pledge agreement
with the Pledgor in respect of the Purchase Shares (as defined in
clause 2 hereof).
(4) The Company was incorporated in England and Wales with limited
liability on 3 May 1996 with an authorised share capital of (pound
sterling)1000 divided into 1000 shares of (pound sterling)1 each, of
which two such shares were issued nil paid to the subscribers to the
Memorandum of Association of the Company. On 20 June 1996 each of the
existing ordinary shares of (pound sterling)1 each in the Company were
sub-divided into 20 ordinary shares of 5p each and the authorised
share capital was increased from (pound sterling)1000 to (pound
sterling)200,000 by the creation of 3,980,000 ordinary shares of 5p
each. On 20 June 1996 the 40 ordinary shares of 5p each representing
the subscribers' shares were transferred to Xxxxx Xxxxx.
(5) The Company wishes to buy and the Vendor, with the consent of the
Pledgee, wishes to sell the Sale Shares on the terms set out below.
AGREED TERMS:
1. Sale of Shares
1.1 The Vendor shall sell the Sale Shares with full title
guaranteed to the Company and the Company relying on the
warranties contained in clause 5 below shall purchase the Sale
Shares upon the terms and conditions set out in this
agreement.
1.2 The Vendor and the Pledgee irrevocably waive all or any
pre-emption rights that they or their nominees may have
pursuant to the articles of association of Xxxxxxx.XX Limited
or to any other agreement relating to the Sale Shares so as to
enable the sale of the Sale Shares to the Company to proceed
free from any such pre-emption rights.
2. The Consideration
The consideration for the purchase of the Sale Shares shall be
satisfied by:
(a) the issue and allotment to the Vendor or his nominee of
1,999,960 ordinary shares of 5p each in the capital of the
Company credited as fully paid;
(b) the crediting as fully paid up of the 40 ordinary shares of 5p
each (representing the original subscriber shares) held by
Xxxxx Xxxxx
the above shares in the Company hereinafter collectively called "the
Purchase Shares" and set out in column 3 of schedule 1 to this
agreement.
3. Completion
Completion shall take place upon execution of this agreement when the
Company and the Vendor shall comply in full with his obligations in
clause 4 below.
4. Completion Obligations
4.1 At Completion the Vendor shall deliver or cause to be
delivered to the Company duly executed transfers of the Sale
Shares in favour of the Company together with the share
certificates in respect of the Sale Shares.
4.2 The Vendor and the Pledgee shall use their best endeavours to
procure the passing of the board resolution of Xxxxxxx.XX
Limited directing the registration of the transfers of the
Sale Shares to the Company subject to such transfers being
duly stamped and presented together with the relevant
certificates.
4.3 Subject to compliance with the provisions of sub-clauses 4.1
and 4.2 above, the Company shall deliver or cause to be
delivered to the Vendor share certificates for the Purchase
Shares.
5. Termination of Pledge Agreement
5.1 The Pledgee and the Vendor hereby agree that the Pledge
Agreement dated 22 April 1996 is terminated and, for the
avoidance of doubt, the Pledgee expressly consents to the sale
of the Sale Shares by the Vendor for the purpose of this and
any other agreement and agrees to procure that the
certificates representing the Sale Shares are delivered to the
Vendor in order for the Vendor to satisfy sub-clauses 4.1 and
4.2 above.
5.2 In consideration of the Pledgee terminating the Pledge
Agreement referred to in sub-clause 5.1 above the Vendor
agrees to enter into a new pledge agreement in respect of the
Purchase Shares in the form of the pledge agreement set out in
schedule 2 to this Agreement.
6. Warranties
The Vendor hereby warrants and represents to and undertakes with the
Company (and agrees to indemnify the Company against any breach of any
such terms) that:
(a) the Sale Shares constitute the whole of the issued and
allotted share capital of Xxxxxxx.XX Limited; and
(b) the Vendor is the beneficial owner with full title guaranteed
in the Sale Shares and that the Sale Shares are free from all
liens charges and encumbrances or interest in favour of any
other person save for the Pledgee.
7. Counterparts
This Agreement may be executed in any number of counterparts and by the
parties to it on separate counterparts, each of which, when executed
and delivered, shall be an original, but all the counterparts shall
together constitute one and the same instrument.
8. Law and jurisdiction
This agreement shall be governed by and construed in accordance with
English law and each party to this agreement submits to the
non-exclusive jurisdiction of the English courts.
This agreement has been executed and delivered as a deed the date first above
mentioned.
SCHEDULE 1
Column 2 Column 3
Number and Percentage Number and Percentage
Column 1 of Sale Shares of Purchase Shares
Name and address
Number Percentage Number Percentage
Xxxxx Xxxxx, 00
Xxxxxxxxxxxx Xxxx, Xxxxxx
X0X 0XX 2 100 2,000,000 100
SCHEDULE 2
DATED 1996
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XXXXX XXXXX
AND
XXXXXXXX XXX
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PLEDGE AGREEMENT
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THIS PLEDGE AGREEMENT is made the day of 1996
BETWEEN
(1) MR XXXXX XXXXX of 00 Xxxxxxxxxxxx Xxxx, Xxxxxx X0X 0XX (hereinafter
called "the Pledgor"); and
(2) XX XXXXXXXX XXX of 0 Xxxxxxxx Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000, XXX
(hereinafter called "the Pledgee")
WHEREAS:
A. Pursuant to a Guarantee dated 22 April 1996 made between the Pledgor
and the Pledgee ("the Guarantee"), the Pledgor agreed to guarantee
certain payments to the Pledgee under a loan agreement dated 22 April
1996 between the Pledgee and the Company (as hereinafter defined) and
entered into a pledge as security for the said payments.
B. Pursuant to a Share Exchange Agreement dated 20 June 1996 made between
the Pledgor, the Pledgee and the Parent (as hereinafter defined) the
Pledgor, with the consent of the Pledgee and the termination of the
pledge of 22 April 1996, agreed to sell his shares in the Company to
the Parent in exchange for the issue of 2,000,000 ordinary shares of 5p
each by the Parent.
C. Pursuant to the Share Exchange Agreement the Pledgor agreed to enter
into a new pledge agreement with the Pledgee in respect of the shares
acquired under the Share Exchange Agreement in order to preserve the
security given by the Pledgor to the Pledgee in relation to payments of
the Company guaranteed by the Pledgor under the Guarantee.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
In this Pledge Agreement, except where the context otherwise requires:
"the Company" means Xxxxxxx.XX Limited, a company registered in England
under number 3069667.
"the Parent" means the parent company of Xxxxxxx.XX Limited being the
company known as Law 737 Limited (to be re-registered as Xxxxxxx.XX
Holdings plc) and registered in England under company number 3194225.
"the Debt" means the debt guaranteed by the Pledgor in accordance with
the terms of the Guarantee.
"Loan Agreement" means the loan agreement dated 22 April 1996 between
the Pledgee and the Company for an interest bearing loan of US$ 210,000
by the Pledgee to the Company.
"Xxxxxxxxxx & Xxxxx" means Xxxxxxxxxx & Xxxxx xx 00 Xxxxxxxxxxxxx,
Xxxxxx XX0X 0XX.
"Pledge Agreement" means this Pledge Agreement as amended from time to
time.
"the Security" means all the two million Ordinary Shares of 5p each in
the capital of the Parent, the share certificates for which are to be
deposited by the Pledgor with Xxxxxxxxxx & Xxxxx and the other property
pledged under clauses 2.1 and 2.2 hereof.
2. PLEDGE
2.1 Pledge: As continuing security for the due and punctual payment of the
Debt the Pledgor as legal and beneficial owner of the Security, hereby
pledges, assigns, transfers, hypothecates, mortgages, charges and
encumbers (and with the intent also of creating a security interest and
a lien thereon) by way of first equitable charge to and in favour of
the Pledgee the Security and all his present and future rights, title
and interest thereto and therein.
2.2 Other Property Pledged: The pledge, assignment, transfer,
hypothecation, mortgage, charge, encumbrance, security, interest and
lien hereby created shall affect, and the Security shall include (i)
all dividends and interest paid or payable thereon (if any) and (ii)
all stocks, shares, notes, bonds, debentures and certificates of
deposit or other securities (and in each case the dividends and
interest paid or payable thereon (if any), rights, monies or other
property paid, distributed, accruing or offered at any time (by way of
dividend, bonus, redemption, rights, preference, option, warrant or
otherwise) on, to or in respect of or in substitution for any Security
and (iii) the proceeds of sale, repayment and redemption and any
payment or receipt of, on or in respect of any of the Security all and
any of which shall be promptly delivered to the Pledgee.
2.3 Non-Recourse: This pledge shall be without recourse to the assets of
the Pledgor other than the Security.
2.4 Custody; Resignation: Subject as otherwise provided in this Agreement,
the Security shall be held by Xxxxxxxxxx & Xxxxx and the Pledgor shall
immediately after the execution and delivery of this Pledge Agreement
deliver or cause to be delivered to Xxxxxxxxxx & Xxxxx the Security
with duly executed blank transfers for all such shares. The Security
shall be kept thereafter in the custody of Xxxxxxxxxx & Xxxxx or their
nominee.
3. ENFORCEMENT
3.1 Time for Enforcement: The security hereby created shall become
immediately enforceable upon the non-payment of the Debt or any part of
it and thereupon any sum payable under this Pledge Agreement shall
become immediately due and payable.
3.2 Rights of Pledgee: At any time after the security hereby created shall
become enforceable the Pledgee may (without notice to the Pledgor) from
time to time do any one or more of the following:
(a) take possession of the Security and hold and/or procure that
its nominees hold the Security to the order of the Pledgee
absolutely; and/or
(b) cause to be delivered to the Pledgee as the Pledgee may direct
the Security; and/or
(c) execute and do, and/or procure its nominees to execute and do,
(at the expense of the Pledgor) all such conveyances,
transfers, assignments, assurances, deeds, acts and things as
the Pledgee may require for the perfecting or protecting the
security hereby created or intended to be created or for
facilitating the realisation of the Security and for
exercising all or any of the rights, powers and discretions
conferred on the Pledgee by or pursuant to this Pledge
Agreement; and/or
(d) exercise or direct the exercise of any powers or rights
incident to the ownership of the Security and the fact of
membership of the Parent; and/or
(e) collect and receive any and all interest, dividends, proceeds
of repayment or redemption (whether total or partial) and
other payments or receipts of, on or in respect of the
Security; and/or
(f) sell, exchange, convert into money or otherwise dispose of or
realise (or concur in selling, exchanging, converting into
money or otherwise disposing of or realising) and Security and
for this purpose complete the blank transfers referred to in
clause 2.4, either by public offer or private contract for
such consideration and in such currency or currencies and on
such terms as it may think fit and so that (without prejudice
to the generality of the foregoing) it may do any of those
things for a consideration consisting of cash, certificates of
deposit, debentures and any such considerations may be payable
or deliverable in a lump sum whether immediately or on a
deferred basis or by instalments spread over such period as it
may think fit and with full power to buy in or rescind or vary
any contract for the sale of the Security and to resell the
same, all without being responsible for any loss which may be
occasioned thereby and with full power to compromise and
effect compositions; and/or
(g) generally act in relation to the Security as if the Pledgee
were the absolute beneficial owner of the same.
3.3 Application of Proceeds: Any monies arising from the enforcement of the
security hereby created shall be applied by the Pledgee as follows:
(a) first, in or towards payment of all costs and expenses
incurred by the Pledgee in connection with this Pledge
Agreement and the exercise of all or any of the powers hereby
confirmed;
(b) secondly, in or towards payment of the Debt (the Pledgor
remaining liable for any shortfall), and
(c) thirdly, in payment of any surplus to the Pledgor, or
(d) other person entitled thereto.
3.4 Notice to Purchaser from Pledgor: Upon any sale of the Security or any
part of it which the Pledgee may make or purport to make under the
provisions hereof a statutory declaration made by the Pledgee that the
Pledgor has made default and that the power of sale has become
exercisable shall be conclusive evidence of the fact in favour of any
purchase or other person - to whom the Security may be transferred
under such sale or other appropriation and the Pledgor or any part of
it agrees to indemnify the Pledgee against any claim which may be made
against the Pledgee by such purchaser or person by reason of any defect
in the title of the Pledgor to such Security or part thereof.
3.5 Beneficial Owner Warranty: The Pledgor warrants that it is the absolute
and beneficial owner of the Security free from encumbrances subject to
the terms hereof and that it will be the absolute and beneficial owner
free from encumbrances of any security which may hereafter become
subject to the terms hereof.
3.6 Powers Non-Exclusive: The powers conferred on the Pledgee by this
Pledge Agreement are in addition to and not in substitution for the
powers conferred on mortgagees under the Law of Property Xxx 0000,
which shall apply to the security hereby created except insofar as they
are expressly or impliedly excluded. Where there is any ambiguity or
conflict between the powers contained in that Act and those conferred
by the Pledge Agreement, the terms of this Pledge Agreement shall
prevail.
3.7 Exclusion of Statutory Rights: The restrictions contained in Section 93
and Section 103 of the Law of Property Act 1925 shall not apply to this
Pledge Agreement.
3.8 No Duty to Enquire etc.: No person dealing with the Pledgee shall be
concerned to enquire whether the security hereby created has become
enforceable or whether any event has happened upon which any of the
powers, authorities and discretions conferred by or pursuant to this
Pledge Agreement are or may be exercisable by the Pledgee or otherwise
as to the propriety or regularity of acts purporting or intended to be
in exercise of any such powers and authorities and all the protection
to purchasers contained in Sections 104 and 107 of the Law of Property
Xxx 0000 shall apply to any person purchasing from or dealing with the
Pledgee.
3.9 Avoidance of Payments: No assurance, security or payment which may be
avoided under any law relating to bankruptcy or insolvency, and no
release, settlement or discharge given or made by the Pledgee on the
faith of any such assurance, security or payment, shall prejudice or
affect the right of the Pledgee to enforce the security hereby created
in respect of the full extent of the monies thereby secured.
4. GENERAL
4.1 Further Assurances: The parties hereto hereby agree to execute and do
all such further deeds and documents (at the expense of the requesting
party) as may reasonably be required by the requesting party to give
full force and effect to this Pledge Agreement.
4.2 Power of Attorney: The Pledgor hereby irrevocably and by way of
security appoints the Pledgee to be its attorney and agent and on its
behalf and in its name or otherwise to execute and do (at the expense
of the Pledgee) all such conveyances, transfers, assignments,
assurances, deeds, acts and things which it ought to execute or do
under the provisions of this Pledge Agreement and generally in its name
or otherwise and on its behalf to exercise all or any of the powers,
authorities and discretions conferred on the pledgee by or pursuant to
this Pledge Agreement or the Law of Property Xxx 0000 and (without
prejudice to the generality of the foregoing) to seal and deliver and
otherwise perfect any conveyance, transfer, assignment, assurance,
deed, act or thing which the Pledgee may deem proper in or for the
purpose of exercising any of such powers, authorities and discretions.
4.3 Security Additional: The security hereby created shall be in addition
to and shall not in any way prejudice or be prejudiced by any other
security, guarantee, indemnity, right of set-off, remedy or lien of
whatever nature which the Pledgee may now or at any time hereafter have
or to which the Pledgee may at any time be entitled, whether by law or
otherwise, for or in respect of all or any part of the sum due under
the Guarantee.
4.4 Illegality: If at any time any provision hereof is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions hereof nor the legality, validity or
enforceability of such provision under the laws of any other
jurisdiction shall in any way be affected or impaired thereby.
4.5 Waivers: No failure or delay on the part of the Pledgee in exercising
any right or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right or remedy preclude
any other or further exercise thereof or the exercise of any other
right or remedy. The rights and remedies provided in this Pledge
Agreement are cumulative and not exclusive of any rights or remedies
which the Pledgee would otherwise have.
4.6 Counterparts: This Agreement may be executed in any number of
counterparts each of which when executed by one or more of the parties
hereto shall
constitute an original but all of which shall constitute one and the
same instrument.
4.7 Successors: This Pledge Agreement and the security evidenced shall be
binding on each of the successors and assigns of the Pledgor.
5. NOTICE
Any notice demand or other communication to be given hereunder by
either of the parties shall be addressed to the parties at their
respective addresses shown in this Pledge Agreement or such other
address as the party shall previously have specified in writing to the
other for such purpose and may be given in person or sent by
first-class pre-paid post or airmail if overseas or facsimile
transmission or telex and shall be deemed to have been served if hand
delivered at the time of delivery or if posted at the expiration of
forty-eight (48) hours or (in the case of airmail) seven days after the
envelope containing the same was put into the post or if sent by
facsimile or telex transmission at the end of the transmission provided
that if the original communication is not transmitted between the hours
of 9.00am to 6.00pm on a day when banks are open for business in London
then on the next such day at 9.00am.
6. GOVERNING LAW
This Pledge Agreement shall be governed by and construed in accordance
with the laws of England and the Pledgor in relation to any legal
action or proceedings arising out of or in connection with this Pledge
Agreement unconditionally submits to the non-exclusive jurisdiction of
the High Court of Justice in England.
IN WITNESS whereof this Pledge Agreement has been duly executed as a deed and
delivered the day and year first above written.
SIGNED as a Deed by XXXXX XXXXX )
in the presence of: )
SIGNED as a Deed by XXXXXXXX )
MOE in the presence of: )
EXECUTED as a deed by )
LAW 737 LIMITED acting by: )
............................
Director
............................
Director/Secretary
in the presence of:
EXECUTED as a deed )
by XXXXX XXXXX )
in the presence of: )
EXECUTED as a deed )
by XXXXXXXX XXX )
in the presence of: )
