1
Exhibit 10.36
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DATED 7TH FEBRUARY 1997
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HAVANT INTERNATIONAL HOLDINGS LIMITED (1)
AND
HAVANT INTERNATIONAL LIMITED (2)
AND
ADFLEX SOLUTIONS, INC. (3)
AND
ADFLEX SOLUTIONS LIMITED (4)
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AGREEMENT TO SURRENDER A LEASE AND TO
RELEASE HAVANT INTERNATIONAL HOLDINGS
LIMITED, HAVANT INTERNATIONAL LIMITED,
ADFLEX SOLUTIONS LIMITED AND ADFLEX
SOLUTIONS, INC. FROM THEIR RESPECTIVE
OBLIGATIONS UNDER CERTAIN AGREEMENTS
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DIBB XXXXXX XXXXX
0 XXXXXXX XXXX
XXXXXX XX0X 0XX
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THIS DEED IS MADE THE 7TH DAY OF FEBRUARY 1997
BETWEEN:-
(1) HAVANT INTERNATIONAL HOLDINGS LIMITED (COMPANY NUMBER 2986793) WHOSE
REGISTERED OFFICE IS AT XXXXXXXXX XXXX, XXXXXX, XXXXXXXXX XX0 0XX ("HIHL");
(2) HAVANT INTERNATIONAL LIMITED (COMPANY NUMBER 3134912) (FORMERLY KNOWN AS
POLENE LIMITED) WHOSE REGISTERED OFFICE IS AT XXXXXXXXX XXXX, XXXXXX,
XXXXXXXXX XX0 0XX ("HIL");
(3) ADFLEX SOLUTIONS, INC., A DELAWARE CORPORATION WITH ITS PRINCIPAL OFFICE AT
0000 XXXX XXXXXXXX XXXXXXXXX, XXXXXXXX, XXXXXXX 00000, XXX ("ASI");
(4) ADFLEX SOLUTIONS LIMITED (COMPANY NUMBER 2987114) (FORMERLY KNOWN AS HAVANT
INTERNATIONAL LIMITED) WHOSE REGISTERED OFFICE IS AT XXXXXXX XXXXX, 000
XXXXXXXX XXXXXXXX, XXXXXX XX0X 0XX ("ASL").
WHEREAS:-
(A) ASL is a wholly owned subsidiary of ASI.
(B) HIHL is the ultimate parent company of HIL.
(C) Pursuant to the Asset Sale and Purchase Agreement, ASL sold and HIL
purchased all the trade, business and assets of ASL which were not related
exclusively to the flex and flexible circuits business then carried on by
ASL.
(D) Pursuant to the Lease, HIL granted a lease to ASL in respect of certain
premises at Langstone Road Havant Hampshire.
(E) Pursuant to the Share Sale and Purchase Agreement, HIHL sold and ASI
purchased the entire issued share capital of ASL.
(F) Pursuant to the Deed of Tax Covenant, HIHL covenanted with ASI in relation
to certain tax liabilities of ASL.
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(G) Pursuant to the Services Agreement, HIL agreed to supply or perform (as
the case may be) certain goods or services for the benefit of ASL.
(H) ASI and ASL are desirous that the terms of the Lease be varied upon the
terms and subject to the conditions set out herein.
(I) In consideration of each of the parties entering into this Deed subject
to hereinafter provided:-
(i) ASI and ASL have each agreed to release and forever discharge
HIHL and HIL from all liability arising prior to the date
hereof under or in connection with, inter alia, the Asset Sale
and Purchase Agreement, the Share Sale and Purchase Agreement
and the Deed of Tax Convenant;
(ii) HIHL and HIL have agreed to release and forever discharge ASI
and ASL from all liability arising prior to the date hereof
under or arising in connection with the Asset Sale and
Purchase Agreement, the Share Sale and Purchase Agreement, the
Deed of Tax Covenant and the Lease;
(iii) ASL and HIL have agreed to vary the terms of the Services
Agreement
upon the terms and subject to the conditions set out herein.
NOW THIS DEED WITNESSES as follows:
1 DEFINITIONS
1.1 The Asset Sale and The Agreement dated 3rd January
Purchase Agreement: 1996 and made between (1) ASL
and (2) HIL for the sale and
purchase of the business and
assets of ASL not related
exclusively to ASL's flex and
flexible circuits business
1.2 The Completion Date: 90 days after the Vacancy Date
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1.3 The Confidentiality An operating confidentiality
Agreement: agreement dated 3rd January 1996
made between (1) Adflex Solutions
Limited and (2) Havant International
Limited
1.4 The Debenture: The subordinated debenture dated
7th January 1996 and made between
(1) ASI and (2) HIHL for US$10,000,000
(ten million US dollars)
1.5 Deed of Surrender and A deed in the form of the draft annexed
Release: hereto
1.6 The Deed of Tax The Deed dated 7th January 1996 and made
Convenant: between (1) ASI and (2) HIHL relating,
inter alia, to certain tax liabilities
of ASL
1.7 The Equipment: All fixed line equipment in the Premises
which belongs to ASL
1.8 The Intellectual includes all patents, patent
Property: applications, patent rights, utility
models, trademarks, trademark
registrations, trademark applications,
licences, service xxxx registrations,
business marks, trade names, brand
names, all other names and slogans
embodying business or product goodwill
(or both) copyright registrations mask
works, copyrights (including those in
computer programs, software, including
all source code and object codes,
programming tools, drawings,
specifications and data) design rights
(whether registered
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or unregistered) trade secrets,
technology, inventions, discoveries
and improvements, know-how
proprietary rights formulae,
processes, technical information,
confidential and proprietary
information and all other
intellectual property rights
whether or not subject to statutory
registration or protection and all
rights against third parties in
respect of any of the aforesaid
items including rights in the
nature of any of the aforesaid
items in any country rights in the
nature of unfair competition rights
and rights to xxx for passing off
1.9 The Intellectual an intellectual property assignment
Property Assignment: dated 8th January 1996 and made
between (1) Adflex Solutions
Limited and (2) Havant
International Limited
1.10 The Lease: A lease of premises at Langstone
Road Havant Hampshire dated 12th
January 1996 made between HIL and ASL
1.11 The Licence Agreement: A licence agreement dated 8th
January 1996 and made between (1)
Adflex Solutions Limited and (2)
Havant International Limited
1.12 The Premises: The premises comprised in the Lease
1.13 The Restoration (Pound Sterling)449,400 together with
Payment: Value Added Tax on such sum
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1.14 The Restoration The Covenants on the part of the
Obligations: part of ASL contained in clauses
4.8, 4.9 and 4.10 of the Lease
1.15 The Services: As such term is defined in the
Services Agreement
1.16 The Services Agreement: The agreement for the supply be of
performance of goods or services
dated 7th January 1996 and made
between (1) HIHL and (2) ASL
1.17 The Share Sale and The agreement dated 7th January
Purchase Agreement: 1996 and made between (1) ASI and
(2) HIHL for the sale and purchase
of the entire issued share capital
of ASL
1.18 The Vacancy Date: means such date between 1st May
1997 and 31st December 1997 as may
be determined in accordance with
the provisions of this agreement
1.19 Vacant Property Charge: Subject to Clause 3.3 the sum of
pounds sterling 1,471.50 per day
(together with Value Added Tax on
such sum) being pounds sterling 8.20
per square foot per annum with ASL
occupying 65,500 square feet
2 AGREEMENT FOR SURRENDER OF LEASE
2.1 HIL and ASL each releases and forever discharges the other party
from all and any liability arising prior to the date hereof (and
all proceedings and actions relating thereto) under or in
connection with the Lease.
2.2 ASL will vacate the Premises by the Vacancy Date.
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2.3 ASL shall confirm in writing to HIL which date between 1st May
1997 and 31st December 1997 (both dates inclusive) ASL has
selected as the Vacancy Date provided always that ASL shall give
HIL not less than 90 days' notice in writing of such date.
2.4 Subject to the provisions of Clause 2.1 until the Vacancy Date
the terms of the Lease shall remain in full force and effect.
2.5 On or before the Vacancy Date ASL shall remove from the
Premises all chattels and equipment other than the Equipment
and shall where necessary cap off and leave safe all services.
2.6 On the Completion Date ASL will pay the Restoration Payment to
HIL and will execute and deliver the Deed of Surrender and
Release to HIL.
2.7 2.7.1 As soon as practicable after the Vacancy Date HIL will
pack the Equipment at its own cost and using reasonable
care ready for collection by ASL.
2.7.2 ASL will pay all reasonable costs incurred in storing
and transporting the Equipment from the Premises.
2.8 HIL will accept the Restoration Payment in full satisfaction of
the Restoration Obligations and on payment of the Restoration
Payment HIL will execute and deliver a counterpart of the Deed
of Surrender and Release to ASL.
3 CONTINUING OBLIGATIONS
3.1 From and after the Vacancy Date ASL shall pay the Vacant
Property Charge in respect of the Premises beginning on the
first day of the month following the Vacancy Date and thereafter
on the first day of each month thereafter for a period of 12
months.
3.2 The obligation to pay the Vacant Property Charge shall continue
notwithstanding the completion of the Deed of Surrender and
Release.
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3.3 No Vacant Property Charge shall be payable in respect of any part
of the Premises so long as that part is occupied by HIHL or one of
its subsidiaries for the purpose of carrying on its own business or
is let to, or occupied by, a third party but the Vacant Property
Charge shall again be payable in respect of such part if it shall
cease to be so occupied or let.
4. DECLARATION
Subject to the provisions of Clause 2.8 hereof, it ASL fails to make
the Restoration Payment to HIL, HIL shall not be required to execute the
Deed of Surrender and Release and the provisions contained in the Lease
including the Restoration Obligations shall continue in full force and
effect.
5. RELEASE OF OBLIGATIONS
In consideration of the respective rights and obligations of the
parties under this Agreement:-
5.1 subject to Clauses 5.3 and 6 HIL and HIHL hereby release and
forever discharge ASL and ASI and ASL and ASI hereby release and
forever discharge HIL and HIHL from in each case:-
5.1.1 all and any liability arising prior to the date hereof (and
all proceedings and actions relating thereto) under or in
connection with:
5.1.1.1 the Asset Sale and Purchase Agreement; and
5.1.1.2 any document or agreement entered into by HIL or HIHL
or (as the case my be) ASL or ASI in relation to the
Asset Sale and Purchase Agreement;
5.1.2 all and any undertakings, indemnities, agreements, covenants
and obligations of or on the part of HIL or HIHL or (as the
case may be) ASL or ASI that HIL or HIHL or (as the case may
be) ASL or ASI has arising under or in connection with:
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5.1.2.1 the Asset Sale and Purchase Agreement; and
5.1.2.2 any document or agreement entered into by HIL or HIHL
or (as the case may be) ASL or ASI in relation to the
Asset Sale and Purchase Agreement;
5.1.3 all and any liability arising in respect of any representations
made in writing or orally by HIL or HIHL or ASL or ASI or by any
of their respective directors, officers, employees, agents or
advisers before or after the execution of the Asset Sale and
Purchase Agreement in relation to the subject matter of the Asset
Sale and Purchase Agreement
other than in the case of any liability, proceedings and actions,
undertakings, indemnities, agreements, covenants or obligations arising as
a result of any act or representation of HIL or HIHL or (as the case may
be) ASL or ASI or any of their respective directors, officers, employees,
agents or advisers performed or made with fraudulent intent.
5.2 Subject to Clauses 5.3 and 6 HIHL and HIL hereby release and forever
discharge ASI and ASL and ASI and ASL hereby release and forever discharge
HIHL and HIL from in each case:-
5.2.1 all and any liability arising prior to the date hereof (and any
proceedings and actions relating thereto) under or in connection
with:
5.2.1.1 the Share Sale and Purchase Agreement;
5.2.1.2 the Deed of Tax Covenant; and
5.2.1.3 any document or agreement entered into by HIHL or HIL or (as
the case may be) ASL or ASI in relation to the Share Sale and
Purchase Agreement and/or the Deed of Tax Covenant;
5.2.2 all and any undertakings, indemnities, agreements,
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covenants and obligations of or on the part of HIHL or HIL or
(as the case may be) ASI or ASL that HIHL or HIL or (as the case
may be) ASL or ASI has arising under or in connection with:
5.2.2.1 the Share Sale and Purchase Agreement;
5.2.2.2 the Deed of Tax Covenant; and
5.2.2.3 any document or agreement entered into by HIHL or HIL
or (as the case may be) ASL or ASI in relation to the
Share Sale and Purchase Agreement and/or the Deed of
Tax Covenant;
5.2.3 all and any liability arising in respect of any representations
made in writing or orally by HIHL or HIL or (as the case may be)
ASL or ASI or by any of their respective directors, officers,
employees, agents or advisers before or after the execution of
the Share Sale and Purchase Agreement and/or the Deed of Tax
Covenant in relation to the subject matter of the Share Sale
and/or Purchase Agreement or the Deed of Tax Covenant
other than in the case of any liability, proceedings and actions,
undertakings, indemnities, agreements, covenants or obligations arising
as a result of any act or representation of HIHL or HIL or (as the case
may be) ASL or ASI or any of their respective directors, officers,
employees, agents or advisers performed or made with fraudulent intent.
5.3 Nothing in this Agreement shall release:-
5.3.1 HIHL from its undertakings to and covenants with ASI pursuant to
Clauses 11.2(a), 11.3, 11.7 and 11.14 of the Share Sale and
Purchase Agreement or from any of HIHL's obligations under such
clauses;
5.3.2 ASI from its undertakings to and covenants with HIHL pursuant to
the Debenture or from any of ASI's obligations
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thereunder;
5.3.3 ASI from its undertakings to and covenants with HIHL
pursuant to Clauses 11.1, 11.4, 11.5, 11.6, 11.8, 11.9
and 13 of the Share Sale and Purchase Agreement or from
any of ASI's obligations under the such clauses of the
Share Sale and Purchase Agreement provided always that
the guarantee obligations of ASI pursuant to Clause 13
of the Share Sale and Purchase Agreement shall only
apply to those obligations of ASL which have been
identified in Clauses 5.3.4, 5.3.5 and 5.3.6 hereof;
5.3.4 ASL from its undertakings to and covenants with HIL
pursuant to the Confidentiality Agreement and the
Licence Agreement or from any of ASL's obligations
thereunder;
5.3.5 ASL from its undertakings to and covenants with HIL of
further assurance pursuant to any and all assignments of
Intellectual Property from ASL to HIL entered into in
January 1996;
5.3.6 ASL from its undertakings to and covenants with HIL
pursuant to the Intellectual Property Assignment or
from any of ASL's obligations thereunder.
6. SERVICES
ASL and HIL hereby agree and confirm that on and with effect from the
Vacancy Date the Services Agreement shall terminate and be of no further
effect to the intent and effect that HIL shall not be under any
obligation to perform or continue to perform or supply or continue to
supply (as appropriate) any Services to ASL on or after the Vacancy Date
and ASL shall not be under any obligation to pay or continue to pay for
any Services on or after the Vacancy Date.
7. ASI'S GUARANTEE AND INDEMNITY
7.1 In consideration of HIL executing this Deed ASI hereby
unconditionally and irrevocably guarantees to HIL the due and
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punctual performance and observance by ASL of all its obligations,
commitments, undertakings, warranties and covenants under or pursuant
to this Deed and/or the Deed of Surrender and Release and agrees to
indemnify HIL against all losses, damages, costs and expenses
(including reasonable legal costs and expenses) which HIL may suffer
through or arising from any breach by ASL of such obligations,
commitments, warranties, undertakings or covenants. The liability of
ASI as aforesaid shall not be released or diminished by any
rearrangement or alteration of terms (whether of this deed or (as the
case may be) the Deed of Surrender and Release or otherwise) or any
forbearance, neglect or delay in seeking performance of the obligations
hereby imposed or any granting of time for such performance.
7.2 If and whenever ASL defaults for any reason whatsoever in the
performance of any obligation or liability undertaken or expressed to
be undertaken by it under or pursuant to this Deed or (as the case may
be) the Deed of Surrender and Release, ASI shall forthwith upon demand
unconditionally perform (or procure performance of) and satisfy (or
procure the satisfaction of) the obligation or liability in regard to
which such default has been made in the manner prescribed by this Deed
or (as the case may be) the Deed of Surrender and Release and so that
the same benefits shall be conferred on HIL as it would have received
if such obligation or liability had been duly performed and satisfied
by ASL. ASI hereby waives any rights which it may have to require HIL
to proceed first against or claim payment from ASL to the intent that
as between HIL and ASI the latter shall be liable as principal debtor
as if it has entered all undertakings, agreements and other obligations
jointly and severally with ASL.
7.3 This guarantee and indemnity is to be a continuing security to HIL for
all obligations, commitments, warranties, undertakings and covenants on
the part of ASL under or pursuant to this Deed or (as the case may be)
the Deed of Surrender and Release notwithstanding any settlement of
account or other matter or thing whatsoever.
7.4 This guarantee and indemnity is in addition to and without prejudice to
and not in substitution for any rights or security
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which HIL may now or hereafter have or hold for the performance and
observance of the obligations, commitments, undertakings, covenants and
warranties of ASL under or in connection with this Deed or with the
Deed of Surrender and Release.
7.5 In the event of ASI having taken or taking any security from ASL in
connection with this guarantee and indemnity, ASI hereby undertakes to
hold the same in trust for HIL pending discharge in full of all ASI's
obligations under this Deed and under the Deed of Surrender and
Release. ASI shall not, after any claim has been made pursuant to this
Clause 7, claim from ASL any sums which may be owing to it from ASL or
have the benefit of any set-off or counterclaim or proof of debt
against ASL or any composition or arrangement entered into by ASL with
its creditors or any other payment by ASL to ASI until all sums owing
to HIL in respect hereof shall have been paid in full.
7.6 As a separate and independent stipulation, ASI agrees that any
obligation expressed to be undertaken by ASL under this Deed or under
the Deed of Surrender and Release (including, without limitation, any
monies expressed to be payable under this Deed or under the Deed of
Surrender and Release) which may not be enforceable against or
recoverable from ASL by reason of any legal limitation, disability or
incapacity or any other fact or circumstance shall nevertheless be
enforceable against or recoverable from ASI as though the same has
been incurred by ASI and ASI were sole or principal obligor in respect
thereof and shall be performed or paid by ASI on demand.
8. HIHL'S GUARANTEE AND INDEMNITY
8.1 In consideration of ASL executing this Deed HIHL hereby unconditionally
and irrevocably guarantees to ASL the due and punctual performance and
observance by HIL of all its obligations, commitments, undertakings,
warranties and covenants under or pursuant to this Deed and/or the Deed
of Surrender and Release and agrees to indemnify ASL against all
losses, damages, costs and expenses (including reasonable legal costs
and expenses) which ASL may suffer through or arising from any breach
by HIL of such
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obligations, commitments, warranties, undertakings or covenants. The
liability of HIHL as aforesaid shall not be released or diminished by any
rearrangement or alteration of terms (whether of this Deed or (as the case
may be) the Deed of Surrender and Release or otherwise) or any forbearance,
neglect or delay in seeking performance of the obligations hereby imposed
or any granting of time for such performance.
8.2 If and whenever HIL defaults for any reason whatsoever in the performance
of any obligation or liability undertaken or expressed to be undertaken by
it under or pursuant to this Deed or (as the case may be) the Deed of
Surrender and Release, HIHL shall forthwith upon demand unconditionally
perform (or procure performance of) and satisfy (or procure the
satisfaction of) the obligation or liability in regard to which such
default has been made in the manner prescribed by this Deed or (as the
case be) the Deed of Surrender and Release and so that the same benefits
shall be conferred on ASL as it would have received if such obligation or
liability had been duly performed and satisfied by HIL. HIHL hereby waives
any rights which it may have to require ASL to proceed first against or
claim payment from HIL to the intent that as between ASL and HIHL the
latter shall be liable as principal debtor as if it has entered all
undertakings, agreements and other obligations jointly and severally with
HIL.
8.3 This guarantee and indemnity is to be a continuing security to ASL for all
obligations, commitments, warranties, undertakings and covenants on the
part of HIL under or pursuant to this Deed or (as the case may be) the Deed
of Surrender and Release notwithstanding any settlement of account or other
matter or thing whatsoever.
8.4 This guarantee and indemnity is in addition to and without prejudice to and
not in substitution for any rights or security which ASL may now or
hereafter have or hold for the performance and observance of the
obligations, commitments, undertakings, covenants and warranties of HIL
under or in connection with this Deed or with the Deed of Surrender and
Release.
8.5 In the event of HIHL having taken or taking any security from HIL
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in connection with this guarantee and indemnity, HIHL hereby
undertakes to hold the same in trust for ASL pending discharge
in full of all HIHL's obligations under this Deed and under the
Deed of Surrender and Release. HIL shall not, after any claim
has been made pursuant to this Clause 8, claim from HIL any sums
which may be owing to it from HIL or have the benefit of any
set-off or counterclaim or proof of debt against HIL or any
composition or arrangement entered into by HIL with its
creditors or any other payment by HIL to HIHL until all sums
owing to ASL in respect hereof shall have been paid in full.
8.6 As a separate and independent stipulation, HIHL agrees that any
obligation expressed to be undertaken by HIL under this Deed or
the Deed of Surrender and Release (including, without
limitation, any monies expressed to be payable under this Deed
or under the Deed of Surrender and Release) which may not be
enforceable against or recoverable from HIL by reason of any
legal limitation, disability or incapacity or any other fact or
circumstance shall nevertheless be enforceable against or
recoverable from HIHL as though the same has been incurred by
HIHL and HIHL were sole or principal obligor in respect thereof
and shall be performed or paid by HIHL on demand.
9 SAVING
Save as expressly provided by this Deed, the Asset Sale and Purchase
Agreement, the Share Sale and Purchase Agreement, the Deed of Tax
Covenant and each of the other aforementioned documents shall remain in
full force and effect.
10 NOTICES
Any notice to be given pursuant to the terms of this Agreement must be
given in writing to the party due to receive such notice in the case of
HIHL, HIL and ASL at their respective registered offices from time to
time and in the case of ASI at its address set out in this Agreement or
such other address as may have been notified for the purpose to the
other parties in accordance with this clause. Notice shall be delivered
personally or sent by first class pre-paid recorded delivery or
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registered post (air mail if overseas) or by facsimile transmission and
shall be deemed to be given in the case of delivery on delivery and in
the case of posting (in the absence of evidence of earlier receipt)
within 48 hours after posting (6 days if sent by air mail) and in the
case of facsimile transmission on completion of the transmission.
11 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.
12 GOVERNING LAW
12.1 This Agreement shall be governed by and construed in accordance
with the laws of England.
12.2 The parties hereby submit to the exclusive jurisdiction and venue
of the High Court of Justice in England in relation to any claim
dispute or difference which may arise hereunder and hereby agree
for the purpose of Order 10 Rule 3 of the Rules of The Supreme
Court of England (or any modification or re-enactment thereof) and
any legal proceedings in any other jurisdiction that any process
may be served on any of them by leaving a copy thereof or by
posting a copy thereof in the case of HIHL, HIL and ASL addressed
to their respective offices as provided for in Clause 10, 5 and in
the case of ASI to the address provided for in Clause 12.3, 7.3.
12.3 ASI's address for service of English High Court Proceedings shall
be Xxxxxxx Xxxxx, 000 Xxxxxxxx Xxxxxxxx, Xxxxxx XX0X 0XX or such
other address within London England as ASI may have notified to
the other parties in accordance with the provisions of Clause 9.
IN WITNESS WHEREOF THIS DEED HAS BEEN EXECUTED THE DAY AND YEAR FIRST ABOVE
WRITTEN.
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ANNEXURE
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DATED 1996
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HAVANT INTERNATIONAL HOLDINGS LIMITED (1)
AND
HAVANT INTERNATIONAL LIMITED (2)
AND
ADFLEX SOLUTIONS, INC. (3)
AND
ADFLEX SOLUTIONS LIMITED (4)
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DEED OF SURRENDER AND RELEASE
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DIBB XXXXXX XXXXX
0 XXXXXXX XXXX
XXXXXX XX0X 0XX
Ref: 00-876I.718/WPD/16.12.96
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THIS DEED IS made the day of 1996
BETWEEN:-
(1) HAVANT INTERNATIONAL HOLDINGS LIMITED (company number 2986793) whose
registered office is at Xxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxx XX0 0XX ("HIHL");
(2) HAVANT INTERNATIONAL LIMITED (company number 3134912) (formerly known as
Polene Limited) whose registered office is at Xxxxxxxxx Xxxx, Xxxxxx,
Xxxxxxxxx XX0 0XX ("HIL");
(3) ADFLEX SOLUTIONS, INC., a Delaware corporation with its principal office at
0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxx 00000, XXX ("ASI");
(4) ADFLEX SOLUTIONS LIMITED (company number 2987114) (formerly known as Havant
International Limited) whose registered office is at Xxxxxxx Xxxxx, 000
Xxxxxxxx Xxxxxxxx, Xxxxxx XX0X 0XX ("ASL").
WHEREAS:-
(A) ASL is a wholly owned subsidiary of ASI.
(B) HIHL is the ultimate parent company of HIL.
(C) Pursuant to the Asset Sale and Purchase Agreement, ASL sold and HIL
purchased all the trade, business and assets of ASL which were not related
exclusively to the flex and flexible circuits business then carried on by
ASL.
(D) Pursuant to the Lease, HIL granted a lease to ASL in respect of certain
premises at Langstone Road Havant Hampshire.
(E) The reversion immediately expectant on the term of years granted by the
Lease remains vested in HIL and the residue of the term of years granted by
the Lease remains vested in ASL.
(F) Pursuant to the Share Sale and Purchase Agreement, HIHL sold and ASI
purchased the entire issued share capital of ASL.
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(G) Pursuant to the Deed of Tax Covenant, HIHL covenanted with ASI in relation
to certain tax liabilities of ASL.
(H) ASL and HIL have agreed to terminate the Lease and ASL has agreed to
surrender its estate and interest in the Premises to HIL upon the terms and
subject to the conditions set out herein.
(I) Each of the parties hereto have agreed to release and forever discharge the
other parties from their respective obligations under or in connection
with, inter alia, the Asset Sale and Purchase Agreement, the Share Sale and
Purchase Agreement and the Deed of Tax Covenant upon the terms and subject
to the conditions set out herein.
1.1 The Agreement to The Agreement dated November
Surrender and Release 1996 made between (1) HIHL (2) HIL
(3) ASI and (4) ASL
1.2 The Asset Sale and The Agreement dated 3rd January 1996
Purchase Agreement: and made between (1) ASL and (2) HIL
for the sale and purchase of the
business and assets of ASL not related
exclusively to ASL's flex and flexible
circuits business.
1.3 The Confidentiality An operating confidentiality
Agreement: agreement dated 3rd January 1996 and
made between (1) Adlfex Solutions
Limited and (2) Havant International
Limited
1.4 The Deed of Tax The Deed dated 7th January 1996 and
Covenant: made between (1) ASI and (2) HIHL
relating, inter alia, to certain tax
liabilities of ASL
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1.5 The Intellectual includes all patents, patent applications,
Property: patent rights, utility models, trademarks,
trademark registrations, trademark applications,
licences, service xxxx registrations, business
marks, trade names, brand names, all other names
and slogans embodying business or product
goodwill (or both) copyright registrations mask
works, copyrights (including those in computer
programs, software, including all source code
and object codes, programming tools, drawings,
specifications and data) design rights (whether
registered or unregistered) trade secrets,
technology, inventions, discoveries and
improvements, know-how proprietary rights
formulae, processes, technical information,
confidential and proprietary information and all
other intellectual property rights whether or
not subject to statutory registration or
protection and all rights against third parties
in respect of any of the aforesaid items
including rights in the nature of any of the
aforesaid items in any country rights in the
nature of unfair competition rights and rights
to xxx for passing off
1.6 The Lease: A lease of premises at Langstone Road Havant
Hampshire dated 12th January 1996 made between
HIL and ASL
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1.7 The License Agreement: A license agreement dated 8th January 1996 and
made between (1) Adflex Solutions Limited and
(2) Havant International Limited
1.8 The Premises: The premises comprised in the Lease
1.9 The Share Sale and The agreement dated 7th January 1996 and made
Purchase Agreement: between (1) ASI and (2) HIHL for the sale and
purchase of the entire issued share capital of
ASL
2 SURRENDER AND ACCEPTANCE
2.1 ASL with full title guarantee surrenders and yields up and releases to
HIL all its estate interest and right in the Premises to the intent
that the residue of the term of years granted by the Lease and all
other right estate or interest of ASL in the Premises shall merge and
be extinguished in the reversion immediately expectant on the term of
years granted by the Lease.
2.2 In consideration of the release hereinafter contained HIL accepts the
surrender.
3 RELEASE OF OBLIGATIONS
3.1 Without prejudice to any antecedent breach of the Lease occurring
after the date of the Agreement to Surrender and Release but prior to
the date hereof HIL and ASL each releases the other party from all
obligations contained in and all present or future liabilities
whatever under the Lease and all damages actions proceedings costs
claims demands and expenses arising from such obligations and
liabilities.
3.2 Subject to Clause 3.4 HIL and HIHL hereby release and discharge ASL
and ASI and ASL and ASI hereby release and forever discharge HIL and
HIHL from in each case:-
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3.2.1 all and any liability, proceedings and actions (in each case actual
or contingent) arising under or in connection with:
3.2.1.1 the Asset Sale and Purchase Agreement; and
3.2.1.2 any document or agreement entered into by HIL or HIHL or (as
the case may be) ASL or ASI in relation to the Asset Sale
and Purchase Agreement;
3.2.2 all and any undertakings, indemnities, agreements, covenants and
obligations of or on the part of HIL or HIHL or (as the case may be)
ASL or ASI that HIL or HIHL or (as the case may be) ASL or ASI has
now or may at any time hereafter have arising under or in connection
with:
3.2.2.1 the Asset Sale and Purchase Agreement; and
3.2.2.2 any document or agreement entered into by HIL or HIHL or
(as the case may be) ASL or ASI in relation to the Asset
Sale and Purchase Agreement;
3.2.3 all and any liability arising in respect of any representations made
in writing or orally by HIL or HIHL or (as the case may be) ASL or
ASI or by any of their respective directors, officers, employees,
agents or advisers before or after the execution of the Asset Sale
and Purchase Agreement in relation to the subject matter of the
Asset Sale and Purchase Agreement
other than in the case of any liability, proceedings and actions,
undertakings, indemnities, agreements, covenants or obligations arising as
a result of any act or representation of HIL or HIL or (as the case may be)
ASI or ASL or any of their respective directors, officers, employees,
agents or advisers performed or made with fraudulent intent.
3.3 Subject to Clause 3.4 HIHL and HIL hereby release and forever discharge ASI
and ASL and ASI and ASL hereby release and forever discharge HIHL and HIL
from in each case:-
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3.3.1 all and any liability, proceedings and actions (in each case
actual or contingent) under or in connection with:
3.3.1.1 the Share Sale and Purchase Agreement;
3.3.1.2 the Deed of Tax Covenant; and
3.3.1.3 any document or agreement entered into by HIHL or HIL
or (as the case may be) ASL or ASI in relation to the
Share Sale and Purchase Agreement and/or the Deed of
Tax Covenant;
3.3.2 all and any undertakings, indemnities, agreements, covenants and
obligations of or on the part of HIHL or HIL or (as the case may
be) ASL or ASI that HIHL or HIL or (as the case may be) ASI or
ASL has now or may at any time hereafter have arising under or in
connection with:
3.3.2.1 the Share Sale and Purchase Agreement;
3.3.2.2 the Deed of Tax Covenant; and
3.3.2.3 any document or agreement entered into by HIHL or HIL
or (as the case may be) ASI or ASL in relation to the
Share Sale and Purchase Agreement and/or the Deed of
Tax Covenant;
3.3.3 all and any liability arising in respect of any representations
made in writing or orally by HIHL or HIL or (as the case may be)
ASL or ASI or by any of their respective directors, officers,
employees, agents or advisers before or after the execution of
the Share Sale and Purchase Agreement and/or the Deed of Tax
Covenant in relation to the subject matter of the Share Sale
and/or Purchase Agreement or the Deed of Tax Covenant
other than in the case of any liability, proceedings and actions,
undertakings, indemnities, agreements, covenants or obligations arising
as a result of any act or representation of HIHL or HIL or
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(as the case may be) ASI or ASL or any of their respective directors,
officers, employees, agents or advisers performed or made with
fraudulent intent.
3.4 Nothing herein shall release:
3.4.1 HIHL from its undertakings to and covenants with ASI pursuant to
Clauses 11.2(a), 11.3, 11.7 and 11.14 of the Share Sale and
Purchase Agreement or from any of HIHL's obligation under such
clauses of the Share Sale and Purchase Agreement:
3.4.2 release ASI from its undertakings to and covenants with HIHL
pursuant to the Debenture or from any of ASI's obligations
thereunder
3.4.3 release ASI from its undertakings to or covenants with HIHL
pursuant to Clauses 11.1, 11.4, 11.5, 11.6, 11.8, 11.9 and 13 of
the Share Sale and Purchase Agreement or from any of ASI's
obligations under such clauses of the Share Sale and Purchase
Agreement provided always that the guarantee obligations of ASI
pursuant to Clause 13 of the Share Sale and Purchase Agreement
shall only apply to those obligations of ASL which have been
identified in Clauses 3.4.4, 3.4.5 and 3.4.6 hereof;
3.4.4 ASL from its undertakings to and covenants with HIL pursuant to
the Confidentiality Agreement and the Licence Agreement or from
any of ASL's obligations thereunder;
3.4.5 ASL from its undertakings to and covenants with HIL of further
assurance pursuant to any and all assignments of Intellectual
Property from ASL to HIL entered into in January 1996;
3.4.6 ASL from its undertakings to and covenants with HIL pursuant to
the Intellectual Property Assignment or from any of ASL's
obligations thereunder.
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4 SAVING
Save as expressly provided by this Deed, the Asset Sale and Purchase
Agreement, the Share Sale and Purchase Agreement, the Deed of Tax Covenant
and each of the other aforementioned documents shall remain in full force and
effect.
5 NOTICES
Any notice to be given pursuant to the terms of this Agreement must be given
in writing to the party due to receive such notice in the case of HIHL, HIL
and ASL at their respective registered offices from time to time and in the
case of ASI at its address set out in this Agreement for such other address
as may have been notified for the purpose to the other parties in accordance
with this clause. Notice shall be delivered personally or sent by first class
pre-paid recorded delivery or registered post (air mail if overseas) or by
facsimile transmission and shall be deemed to be given in the case of
delivery on delivery and in the case of posting (in the absence of evidence
of earlier receipt) within 48 hours after posting (6 days if sent by air
mail) and in the case of facsimile transmission on completion of the
transmission.
6 COUNTERPARTS
This Agreement may be exercised 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.
7 GOVERNING LAW
7.1 This Agreement shall be governed by and construed in accordance with
the laws of England.
7.2 The parties hereby submit to the exclusive jurisdiction and venue of
the High Court of Justice in England in relation to any claim dispute or
difference which may arise hereunder and hereby agree for the purpose of
Order 10 Rule 3 of the Rules of The Supreme Court of England (or any
modification or re-enactment thereof) and any legal proceedings in any
other jurisdiction that any process
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may be served on any of them by leaving a copy thereof or by posting
a copy thereof in the case of HIHL, HIL and ASL addressed to their
respective offices as provided for in Clause 10, 5 and in the case
of ASI to the address provided for in Clause 12.3, 7.3.
7.3 ASI's address for service of English High Court Proceedings shall
be Xxxxxxx Xxxxx, 000 Xxxxxxxx Xxxxxxxx, Xxxxxx XX0X 0XX or such
other address within London England as ASI may have notified to the
other parties in accordance with the provisions of Clause 9.
IN WITNESS whereof, this Deed has been executed the day and year first above
written.
EXECUTED (but not delivered )
until the date hereof) as a )
deed by HAVANT INTERNATIONAL )
HOLDINGS LIMITED in the )
presence of:-
Director
Director/Secretary
EXECUTED (but not delivered )
until the date hereof) as a )
deed by HAVANT INTERNATIONAL )
LIMITED in the presence of:- )
Director
Director/Secretary
EXECUTED (but not delivered )
until the date hereof) as a )
deed by ADFLEX SOLUTIONS, )
INC. in the presence of:- )
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EXECUTED (but not delivered )
until the date hereof) as a )
deed by ADFLEX SOLUTIONS )
LIMITED in the presence of:- )
Director
Director/Secretary
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EXECUTED (but not delivered )
until the date hereof) as a )
deed by HAVANT INTERNATIONAL )
HOLDINGS LIMITED in the )
presence of:- )
Director
Director/Secretary
EXECUTED (but not delivered )
until the date hereof) as a )
deed by HAVANT INTERNATIONAL )
LIMITED in the presence of:- )
Director
Director/Secretary
EXECUTED (but not delivered )
until the date hereof) as a )
deed by ADFLEX SOLUTIONS ) /s/ Xxxxxxx X. Xxxxxxxxxx
INC. in the presence of:- )
EXECUTED (but not delivered )
until the date hereof) as a )
deed by ADFLEX SOLUTIONS )
INC. in the presence of:- )
/s/ Xxxxxxx X. Xxxxxxxxxx
Director
/s/ Xxxxxx X. Xxxxxx
Director/Secretary
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EXECUTED (but not delivered )
until the date hereof) as a )
deed by HAVANT INTERNATIONAL )
HOLDINGS LIMITED in the )
presence of:- )
Director /s/ Xxxxxxx X. Xxxxxx
Director/Secretary /s/ Xxxxx Xxxx
EXECUTED (but not delivered )
until the date hereof) as a )
deed by HAVANT INTERNATIONAL )
LIMITED in the presence of:- )
Director /s/ Xxxxxxx X. Xxxxxx
Director/Secretary /s/ Xxxxx Xxxx
EXECUTED (but not delivered )
until the date hereof) as a )
deed by ADFLEX SOLUTIONS, )
INC. in the presence of:- )
EXECUTED (but not delivered )
until the date hereof) as a )
deed by ADFLEX SOLUTIONS, )
LIMITED in the presence of:- )
Director
Director/Secretary
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[XYRATEX LETTERHEAD]
20th February 1997.
ADFlex Solutions Inc.,
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx
Xxxxxxx 00000
X.X.X.
DEED OF INDEMNITY
We refer to the Agreement dated 3rd January 1996 between Havant International
Limited (now renamed ADFlex Solutions Limited) ("ADFlex") and Polene Limited
(now renamed Havant International Limited ("HIL") relating to the sale of part
of the business and assets of ADFlex ("the Assets Sale Agreement") and the
obligation of HIL to discharge the Corporation Tax liability of ADFlex in
respect of the year ended 30th November 1995.
To secure the performance by HIL of the aforesaid obligation, Midland Bank
provided a guarantee to ADFlex Solutions, Inc. dated 7th January 1996 which
expired on the 31st December 1996.
Notwithstanding:-
(i) the terms of the Agreement to Surrender and Release between Havant
International Holdings Limited ("HIHL"), HIL, ADFlex Solutions, Inc.
("ASI") and ADFlex dated 7th February 1997 ("the Agreement to
Surrender");
(ii) the terms of the Deed of Surrender and Release to be made between HIHL,
HIL, ASI and ADFlex included as an agreed form document within the
Agreement to Surrender; and
(iii) the expiry of such bank guarantee,
HIL hereby confirms that it remains liable to discharge the Corporation Tax
liability of ADFlex in respect of the year ended 30th November 1995 to the
extent that the same has not been discharged and hereby agrees to indemnify and
hold ADFlex harmless against all losses, costs, expenses, liabilities, actions,
claims, demands and proceedings suffered or incurred by ADFlex as a result of
the failure by HIL to fully comply with such obligations.
All the provisions of the Asset Sale Agreement and the Deed of Tax Covenant
dated 7th January 1996 between ASI and HIHL relevant to the enforcement of such
liability shall remain in force and shall apply to this Deed of Indemnity
mutatis mutandis as if the same were repeated and set out herein.
31
[XYRATEX LETTERHEAD]
IN WITNESS whereof this document which is intended to take effect as a Deed has
been duly executed the day and year first above written.
THE CORPORATE SEAL of HAVANT )
INTERNATIONAL LIMITED was )
hereunto affixed in the presence of:- )
Director /s/ Xxxxxxx X. Xxxxxx
----------------------
Director/Secretary /s/ Xxxxx Xxxx
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