Exhibit 2.5
Dated November 1997
XXXXXXX XXXXXX
FABRIZIO LAMBERTINI (1)
ASPECT VISION HOLDINGS LIMITED (2)
AND
THE XXXXXX COMPANIES, INC. (3)
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Agreement
for the sale and purchase
of 32.06% of the issued capital
of ASPECT VISION ITALIA S.R.L.
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XXXXXXX XXXXXXX
XXXXX XXXXX
000 XXXXXXXXXX XXXXXX
XXXXXX XX0X 0XX
T+00(0)000 000 0000
F+00(0)000 000 0000
TABLE OF CONTENTS
1. Definitions and interpretation.....................................1
2. Condition..........................................................4
3. Sale and purchase..................................................5
4. Consideration......................................................5
5. Completion.........................................................6
6. Waiver of pre-emption rights.......................................6
7. Put and Call Options...............................................7
8. Xxxxxx Covenants...................................................8
9. RTPA...............................................................8
10. Announcements.....................................................8
11. Assignment........................................................9
12. Remedies cumulative...............................................9
13. Waiver, variation and release.....................................9
14. Costs and expense................................................10
15. Notices..........................................................10
16. Counterparts.....................................................11
17. Language.........................................................11
18. Invalidity.......................................................11
19. Agreement to continue in full force and effect...................11
20. Confidentiality..................................................11
21. Governing law and jurisdiction...................................12
Schedule 1 The Vendors...............................................14
Schedule 2 Completion................................................15
Part 1 - Delivery of documents by Vendors............................15
Part 2 - Delivery of documents and actions by the Purchaser..........15
Part 3 - Delivery of documents and actions by TCC....................16
Schedule 3 Documents in the agreed terms.............................17
Schedule 4 Deed of Sale and Transfer.................................18
Schedule 5 Conduct of business pending Completion....................19
THIS AGREEMENT is made the day of November 1997
BETWEEN:-
(1) The persons whose names and addresses are set out in COLUMN 1 of SCHEDULE 1
(the "Vendors"); and
(2) ASPECT VISION HOLDINGS LIMITED (registered in England with number 3448379)
whose registered office is at Xxxxx Xxxxx, 000 Xxxxxxxxxx Xxxxxx, Xxxxxx,
XX0X 0XX (the "Purchaser"); and
(3) THE XXXXXX COMPANIES, INC. a company incorporated in Delaware whose
principal office is at 0000 Xxxxxxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxxx XX
00000 ("TCC").
WHEREAS:-
(A) The Vendors are each quotaholders in the Company.
(B) The Purchaser wishes to purchase 32.06% of the issued capital of the
Company from the Vendors and the Vendors have each agreed to sell their
respective quotaholdings in the Company in each case upon and subject to
the terms and conditions of this Agreement.
WHEREBY IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions have the meanings set
opposite them:
"AFFILIATE": in relation to any body corporate, any
Holding Company or subsidiary undertaking of
such body corporate or any subsidiary
undertaking of a Holding Company of such
body corporate;
"AGREEMENT": this Agreement including its recitals and
the schedules hereto;
"BUSINESS DAY": a weekday (other than a Saturday) when banks
are open for business in London;
"CA 85": Companies Xxx 0000;
"CALL OPTION": the call option over the Purchase Quotas
granted by Xx. Xxxxxx to the Purchaser
pursuant to CLAUSE 7.1.2 below;
"CASH CONSIDERATION": the cash consideration payable for the
Quotas as specified in CLAUSE 4.1;
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"COMPANY": means Aspect Vision Italia S.r.l., a company
registered in Italy under number 325566
whose registered office is at 00 Xxx X.
Xxxxxxx, Xxxxx, Xxxxx;
"COMPLETION": completion of the sale and purchase of the
Quotas pursuant to this Agreement;
"CONDITION": the condition referred to in CLAUSE 2.1;
"CONFIDENTIAL INFORMATION": all information received or obtained by the
Vendors or supplied to the Vendors in the
negotiations leading to this Agreement and
which relates to TCC or any of its
subsidiaries;
"DEED OF CONTRIBUTION": the deed of contribution in the agreed terms
to be entered into at Completion between the
Purchaser, the Vendors and others;
"DEED OF SALE AND TRANSFER": the deed of sale and transfer, the form of
which is set out in SCHEDULE 4, transferring
the Quotas held by the Vendors to the
Purchaser or its nominee(s)
"ENCUMBRANCE": any interest or equity of any person
(including any right to acquire, option or
right of pre-emption) or any mortgage,
charge, pledge, lien, assignment,
hypothecation, security interest, title
retention or any other security agreement or
arrangement;
"EXERCISE NOTICE": a written notice served upon Xx. Xxxxxx by
the Purchaser exercising the Call Option
and/or a written notice served upon the
Purchaser by Xx. Xxxxxx exercising the Put
Option;
"XXXXXX COVENANTS": the covenants set out in CLAUSE 8 below;
"HOLDING COMPANY": a holding company within the meaning
ascribed to such expression by sections 736
and 736A, CA 85;
"XX XXXXXX": Xxxxxxx Xxxxxx, one of the Vendors;
"NON-COMPETITION AGREEMENTS": the agreements in the agreed terms to be
entered into at Completion between the
Purchaser and the Vendors relating to the
protection of, inter alia, the goodwill of
the business of the Company;
"OPTION PERIOD": the period commencing on the date hereof and
terminating on the date of the third
anniversary of this Agreement;
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"OPTIONS": the Call Option and the Put Option;
"PROCEEDINGS": any proceeding, suit or action arising out
of or in connection with this Agreement;
"PURCHASE NOTES": the loan notes in the agreed terms to be
issued to the Vendors at Completion by the
Purchaser and guaranteed by TCC;
"PURCHASE QUOTAS" quotas having a nominal value of Lire
143,295,000;
"PURCHASER'S ITALIAN LAWYERS": Xxxxxx Xxxxxxx & Partners of Xxxxxx
Xxxxxxxxx 0, 00000 Xxxxx, Xxxxx (whose
London address is 00 Xxxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX);
"PUT OPTION": the put option over the Purchase Quotas
granted by the Purchaser to Xx. Xxxxxx
pursuant to CLAUSE 7.1.1 below;
"QUOTAS": the quotas in the capital of the Company set
out in COLUMN (2) of SCHEDULE 1;
"RTPA": Restrictive Trade Practices Xxx 0000;
"SERVICE AGREEMENTS": the service agreements in the agreed terms
to be entered into between Aspect Vision
Care Limited and each of the Vendors;
"SERVICE DOCUMENT": a writ, summons, order, judgement or other
document relating to or in connection with
any Proceedings;
"STOCK EXCHANGE": London Stock Exchange Limited;
"SUBORDINATION AGREEMENT": the subordination agreement in the agreed
terms to be entered into at Completion
between TCC, Keybank National Association
and the holders of the Purchase Notes;
"SUBSIDIARY": a subsidiary within the meaning ascribed to
such expression by sections 736 and 736A,
CA 85;
"SUBSIDIARY UNDERTAKING": a subsidiary undertaking within the meaning
ascribed to such expression by section 258,
CA 85;
"UMBRELLA AGREEMENT": the umbrella agreement of even date herewith
relating to, inter alia, the sale and
purchase of the Quotas entered into between
the Purchaser, Xx Xxxxxxx X. Xxxxxx and TCC;
"VAT": value added tax;
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"VENDORS' SOLICITORS": Xxxxxxx Xxxxx Xxxxxxxxxxx of 00 Xxxx Xxxx,
Xxxxxx, XX0X 0XX; and
"IN THE AGREED TERMS": in the form agreed between the Vendors and
the Purchasers and signed for the purposes
of identification by or on behalf of each
party.
1.2 The table of contents and headings in this Agreement are inserted for
convenience only and shall not affect its construction.
1.3 Unless the context otherwise requires words denoting the singular shall
include the plural and vice versa, references to any gender shall include
all other genders and references to persons shall include bodies corporate,
unincorporated associations and partnerships in each case whether or not
having a separate legal personality. References to the word "include" or
"including" are to be construed without limitation.
1.4 References to recitals, schedules and clauses are to recitals and schedules
to and clauses of this Agreement unless otherwise specified and references
within a schedule to paragraphs are to paragraphs of that schedule unless
otherwise specified.
1.5 References in this Agreement to any statute, statutory provision or EC
Directive include a reference to that statute, statutory provision or EC
Directive as amended, extended, consolidated or replaced from time to time
(whether before or after the date of this Agreement) and include any order,
regulation, instrument or other subordinate legislation made under the
relevant statute, statutory provision or EC Directive.
1.6 References to any English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, court, official or any
legal concept or thing shall in respect of any jurisdiction other than
England be deemed to include that which most approximates in that
jurisdiction to the English legal term.
1.7 Any reference to "writing" or "written" includes faxes and any
non-transitory form of visible reproduction of words.
1.8 References to times of the day are to London time and references to a day
are to a period of 24 hours running from midnight to midnight.
2. CONDITION
2.1 Condition precedent
Subject to CLAUSE 2.3, this Agreement is subject to and conditional upon
satisfaction of the condition in clause 2.1 of the Umbrella Agreement.
2.2 Time limit for satisfaction of Condition
If the condition in CLAUSE 2.1 has not been fulfilled or waived (by mutual
agreement of the parties) by 31 December 1997 (or by such later date as may
be agreed in writing between the parties) this Agreement shall thereupon
become
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null and void ab initio and none of the parties shall have any rights
against any other party hereunder.
2.3 Operative provisions
Notwithstanding CLAUSE 2.1, CLAUSES 10, 12-18 (inclusive), 21 and 22 shall
come into force on the execution and exchange of this Agreement and the
remainder of this Agreement shall come into force on the fulfilment and/or
waiver of the Condition.
2.4 Conduct of business pending Completion
Each of the Vendors hereby undertakes to the Purchaser, to the extent that
they are able, to procure that the Company is run as set out in SCHEDULE 5
in respect of the period prior to Completion.
3. SALE AND PURCHASE
3.1 Obligation to sell and purchase and free from Encumbrances
Subject to the terms of this Agreement each of the Vendors shall sell, with
effect from 1 November 1997, with full title guarantee and free from
Encumbrances those Quotas set opposite his name in COLUMN (2) of SCHEDULE 1
and the Purchaser shall purchase such Quotas together with all rights
attaching thereto with effect from 1 November 1997.
3.2 Dividends and distributions
From Completion the Vendors shall transfer to the Purchaser all dividends
and distributions declared, paid or made by the Company to the Vendors in
respect of the Quotas on or after 1 November 1997.
3.3 Sale of all Quotas
The Purchaser shall not be obliged to complete the purchase of any of the
Quotas hereunder unless the purchase of all the Quotas is completed
simultaneously.
4. CONSIDERATION
4.1 Consideration
The consideration for the Quotas shall be:
4.1.1 the sum of 'L'173,705 payable in cash; and
4.1.2 the sum of 'L'377,239 to be satisfied by the issue of the
Purchase Notes.
4.2 Entitlement to consideration
The consideration shall be allocated such that:
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4.2.1 the Cash Consideration shall belong to the Vendors in the proportions
set opposite their respective names in COLUMN (3) of SCHEDULE 1; and
4.2.2 the Purchase Notes shall be issued to the Vendors in the proportions
set opposite their respective names in COLUMN (4) of SCHEDULE 1.
4.3 Reduction in consideration
Any payment made by the Vendors pursuant to the operation of the Deed of
Contribution and clause 10 of the Umbrella Agreement, or any other payment
made pursuant to this Agreement, shall be deemed to be pro tanto a
reduction in the price paid for the Quotas under this Agreement.
4.4 Guarantee of Purchase Notes
TCC agrees to guarantee the obligations of the Purchaser in respect of the
Purchase Notes on the terms set out in the Purchase Notes.
5. COMPLETION
5.1 Time and location
Subject as provided in CLAUSE 5.4, Completion shall take place at the Milan
offices of the Purchaser's Italian Lawyers on the fifth day following
satisfaction or waiver of the Condition or at such other place and/or on
such other date as may be agreed in writing between the Purchaser and each
of the Vendors.
5.2 Vendors' obligations
At Completion the Vendors shall deliver to the Purchaser each of the
documents listed in PART 1 of SCHEDULE 2.
5.3 Purchaser's obligations
Subject to the Vendors complying with their obligations under CLAUSE 5.2,
the Purchaser shall at Completion deliver the documents and effect the
actions listed in PART 2 of SCHEDULE 2.
5.4 TCC's obligations
Subject to the Vendors complying with their obligations under CLAUSE 5.2,
TCC shall at Completion deliver the documents and effect the transactions
listed in PART 3 of SCHEDULE 2.
5.5 Failure to comply
If in any respect material to the Purchaser the provisions of CLAUSE 5.2
and PART 1 of SCHEDULE 2 or if in any respect material to the Vendors the
provisions of CLAUSES 5.3 and 5.4 and PARTS 2 and 3 of SCHEDULE 2 are not
complied with on the date of Completion applicable under CLAUSE 5.1, the
Purchaser or, as the case may be, the Vendors shall not be obliged to
complete this Agreement and may:-
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5.5.1 defer Completion to a date not more than twenty-eight days after the
date set by CLAUSE 5.1 (and so that the provisions of this CLAUSE 5.5
shall apply to Completion as so deferred); or
5.5.2 proceed to Completion so far as practicable and without prejudice to
their rights under this Agreement; or
5.5.3 rescind this Agreement without prejudice to their rights and remedies
under this Agreement; or
5.5.4 waive all or any of the requirements contained in CLAUSE 5.2 or, as
the case may be, CLAUSES 5.3 and 5.4, at their discretion.
6. WAIVER OF PRE-EMPTION RIGHTS
The Vendors by their execution of this Agreement hereby waive any
pre-emption rights in respect of the Quotas conferred on them under the
articles of association of the Company or otherwise.
7. PUT AND CALL OPTIONS
7.1 Grant of Options
7.1.1 The Purchaser hereby grants to Xx Xxxxxx an option exercisable during
the Option Period to require the Purchaser to purchase the Purchase
Quotas.
7.1.2 Xx Xxxxxx hereby grants to the Purchaser an option exercisable during
the Option Period to require Xx Xxxxxx to sell to the Purchaser the
Purchase Quotas.
7.1.3 The Options shall only be exercisable in respect of all of the
Purchase Quotas and shall not be capable of being exercised in
respect of part of the Purchase Quotas.
7.2 Exercise of Options
7.2.1 Completion of the exercise of either the Put Option or the Call
Option shall determine all rights in connection with the other.
7.2.2 The Put Option shall be exercisable by Xx Xxxxxx serving upon the
Purchaser an Exercise Notice which shall thereupon become binding
upon the Purchaser and Xx Xxxxxx.
7.2.3 The Call Option shall be exercisable by the Purchaser serving upon Xx
Xxxxxx an Exercise Notice which shall thereupon become binding upon
Xx Xxxxxx and the Purchaser.
7.2.4 An Exercise Notice when served (whether upon the Purchaser or Xx
Xxxxxx) shall be irrevocable.
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7.2.5 Completion of the exercise of either Option shall be held within 5
Business Days of receipt of an Exercise Notice at such time and place
as Xx Xxxxxx and the Purchaser may agree or, if the parties fail to
agree, at the offices in Milan of the Purchaser's Italian Lawyers at
2 p.m. (Italian time) on the fifth Business Day following receipt of
the Exercise Notice.
7.2.6 At completion of the exercise of either Option, Xx Xxxxxx shall
execute a deed of sale and transfer (in substantially the same form
as the Deed of Sale and Transfer) in respect of the Purchase Quotas
in favour of the Purchaser (or as it may direct).
7.2.7 Upon execution by Xx Xxxxxx of the deed of sale and transfer as
aforesaid in CLAUSE 7.2.6 above in respect of the Purchase Quotas,
the Purchaser shall pay consideration (which is to be agreed between
the Purchaser and Xx Xxxxxx) by way of cash and/or an issue of loan
notes (such loan notes to be in substantially the same form as the
Purchase Notes). The proportion of the consideration to be paid in
cash and, if any, loan notes is to be agreed between the Purchaser
and Xx Xxxxxx.
7.2.8 If Xx Xxxxxx shall fail to execute a deed of sale and transfer of the
Purchase Quotas at completion then Xx Xxxxxx shall forthwith execute,
before a duly appointed notary public in Italy, a power of attorney
irrevocably authorising and appointing the Purchaser (acting by any
director of the Purchaser or any person duly authorised by the
directors of the Purchaser) as his attorney to execute on his behalf
any such deed of sale and transfer of the Purchase Quotas and any
indemnity for any document of title not so delivered.
8. XXXXXX COVENANTS
8.1 Xx Xxxxxx hereby covenants that after Completion he will not at any time
sell, transfer, assign, pledge or undertake to sell, transfer, assign or
pledge, or otherwise dispose of any quotas he holds in the issued capital
of the Company to any person other than to the Purchaser.
8.2 Xx Xxxxxx further covenants that for so long as he is a quotaholder in AVI
he will be not be concerned or engaged in any business within any country
in the European Union which competes (directly or indirectly) with any
business in which the Company is engaged.
8.3 Xx Xxxxxx hereby undertakes to indemnify and keep the Purchaser indemnified
from and against and in respect of and to pay on demand to the Purchaser an
amount equivalent to any cost, expense, liability or risk of a fiscal
nature that the Purchaser may incur following any claim of a fiscal nature
in connection with the transfer by Xx Xxxxxx of the Quotas and the Purchase
Quotas.
9. RTPA
9.1 If there is any provision of this Agreement, or of any agreement or
arrangement of which this Agreement forms part, which causes or would cause
this Agreement or that agreement or arrangement to be subject to
registration under the RTPA,
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then that provision shall not take effect until the day after particulars
of this Agreement or of that agreement or arrangement (as the case may be)
have been furnished to the Director General of Fair Trading pursuant to
section 24, RTPA.
9.2 The Purchaser shall furnish such particulars as are referred to in CLAUSE
9.1 as soon as is reasonably practicable after the date of this Agreement
and within the time limits specified in the RTPA and the Vendors undertake
to provide such information and assistance as the Purchaser may reasonably
require in connection therewith.
10. ANNOUNCEMENTS
10.1 Restrictions on announcements
No announcement shall be made in relation to the subject matter of this
Agreement or a matter ancillary to this Agreement without the prior written
consent of the other party save as may be required by any:-
10.1.1 law;
10.1.2 existing contractual arrangements; or
10.1.3 the Stock Exchange or the Panel on Takeovers and Mergers or any
other applicable regulatory authority to which the Vendors are
subject where such requirement has the force of law,
provided such communication shall be made only after consultation with the
other party.
10.2 Continuing effect
The restrictions contained in this clause shall continue to apply after
Completion without limit in time.
10.3 Legal and regulatory requirements
The Purchaser and the Vendors undertake to provide all such information
known to them or which on reasonable enquiry ought to be known to them as
may reasonably be required by the Vendors or the Purchaser for the purpose
of complying with the requirements of law or of any applicable regulatory
authority to which either party is subject where such requirement has the
force of law.
11. ASSIGNMENT
11.1 No party may assign the benefit of this Agreement whether absolutely or by
way of security except in the case of an absolute assignment of all or part
by the Purchaser to an Affiliate of the Purchaser and provided and so long
as it remains an Affiliate (failing which the benefit of this Agreement
shall no longer be available to such assignee nor to any assignor) save
that the Purchaser may assign such benefit absolutely or by way of security
to a person other than an Affiliate of the Purchaser with the prior consent
in writing of the Vendors such consent
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not to be unreasonably withheld or delayed and any purported assignment in
contravention of this clause shall be ineffective.
11.2 Subject to CLAUSE 11.1, this Agreement shall be binding upon and enure for
the benefit of the personal representatives and assigns and successors in
title of each of the parties.
12. REMEDIES CUMULATIVE
12.1 The rights, powers and remedies provided in this Agreement or expressly
referred to herein are cumulative and do not exclude any rights, powers or
remedies provided by law or by any other document other than this
Agreement.
12.2 Nothing in this Agreement or in any document in the agreed terms shall be
read or construed as excluding any liability or remedy as a result of
fraud.
13. WAIVER, VARIATION AND RELEASE
13.1 No omission to exercise or delay in exercising on the part of any party to
this Agreement any right, power or remedy provided by law or under this
Agreement shall constitute a waiver of such right, power or remedy or any
other right, power or remedy or impair such right, power or remedy. No
single or partial exercise of any such right, power or remedy shall
preclude or impair any other or further exercise thereof or the exercise of
any other right, power or remedy provided by law or under this Agreement.
13.2 Any waiver of any right, power or remedy under this Agreement must be in
writing and may be given subject to any conditions thought fit by the
grantor. Unless otherwise expressly stated any waiver shall be effective
only in the instance and only for the purpose for which it is given.
13.3 No variation to this Agreement shall be of any effect unless it is agreed
in writing and signed by or on behalf of each party.
14. COSTS AND EXPENSE
14.1 General
Save as otherwise stated in this Agreement or in the Umbrella Agreement,
each party shall pay its own costs and expenses in relation to the
negotiation, preparation, execution and carrying into effect of this
Agreement and other agreements forming part of the transaction.
14.2 Group companies to pay no costs
For the avoidance of doubt, neither the Company nor any of its subsidiaries
shall pay any legal or other professional charges and expenses in
connection with any investigation of the affairs of the Company or the
negotiation, preparation, execution and carrying into effect of this
Agreement or any other agreement forming part of the transaction.
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15. NOTICES
15.1 Any communication to be given in connection with the matters contemplated
by this Agreement shall except where expressly provided otherwise be in
writing and shall either be delivered by hand or sent by pre-paid
registered post or sent by air mail. Delivery by courier shall be regarded
as delivery by hand.
15.2 Such communication shall be sent to the address of the relevant party
referred to in this Agreement or to such other address as may previously
have been communicated to the other party in accordance with this clause.
Each communication shall be marked for the attention of the relevant
person.
15.3 A communication shall be deemed to have been served:-
15.3.1 if delivered by hand at the address referred to in CLAUSE 15.2, at
the time of delivery;
15.3.2 if sent by pre-paid registered post to the address referred to in
CLAUSE 15.2, at the expiration of four clear days after the time of
posting; and
15.3.3 if sent by air mail to the address referred to in CLAUSE 15.2, at
the expiration of five clear days after posting.
If a communication would otherwise be deemed to have been delivered outside
of normal business hours (being 9:30 a.m. to 5:30 p.m. on a Business Day)
in the time zone of the territory of the recipient under the preceding
provisions of this clause, it shall be deemed to have been delivered at the
opening of business on the next Business Day.
15.4 In proving service of the communication, it shall be sufficient to show
that delivery by hand was made or that the envelope containing the
communication was properly addressed and posted as a pre-paid registered
letter or air mail letter.
15.5 A party may notify the other parties to this Agreement of a change to its
name, relevant person or address for the purposes of CLAUSE 15.2 PROVIDED
THAT such notification shall only be effective on:-
15.5.1 the date specified in the notification as the date on which the
change is to take place; or
15.5.2 if no date is specified or the date specified is less than five
clear Business Days after the date on which notice is deemed to have
been served, the date falling five clear Business Days after notice
of any such change is deemed to have been given.
15.6 For the avoidance of doubt, the parties agree that the provisions of this
clause shall not apply in relation to the service of Service Documents.
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16. COUNTERPARTS
16.1 This Agreement may be executed in any number of counterparts and by the
parties on different counterparts, but shall not be effective until each
party has executed at least one counterpart.
16.2 Each counterpart shall constitute an original of this Agreement but all the
counterparts shall together constitute one and the same Agreement.
17. LANGUAGE
17.1 This Agreement is drawn up in the English language and if this Agreement is
translated into any language other than English, the English language text
shall prevail.
17.2 Each notice, instrument, certificate or other communication to be given by
one party to another hereunder or in connection with this Agreement shall
be in the English language (being the language of negotiation of this
Agreement) and in the event that such notice, instrument, certificate or
other communication or this Agreement is translated into any other
language, the English language text shall prevail.
18. INVALIDITY
Each of the provisions of this Agreement is severable. If any such
provision is or becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, the legality, validity or enforceability
in that jurisdiction of the remaining provisions of this Agreement of that
provision or any other provision of this Agreement, shall not in any way be
affected or impaired thereby.
19. AGREEMENT TO CONTINUE IN FULL FORCE AND EFFECT
This Agreement shall, to the extent that it remains to be performed,
continue in full force and effect notwithstanding Completion.
20. CONFIDENTIALITY
20.1 The Vendors hereby undertake with the Purchaser that they shall both during
and after the term of this Agreement keep confidential and not directly or
indirectly reveal, report, publish, disclose or transfer or use for their
own or any other purposes Confidential Information except:-
20.1.1 in the circumstances set out in CLAUSE 20.2; or
20.1.2 to the extent otherwise expressly permitted by this Agreement; or
20.1.3 with the prior consent in writing of the party to whose affairs such
Confidential Information relates.
20.2 The circumstances referred to in CLAUSE 20.1.1 above are:-
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20.2.1 where the Confidential Information, before it is furnished to or
comes into the knowledge or possession of any of the Vendors, is in
the public domain; or
20.2.2 where the Confidential Information, after it is furnished to or
comes into the knowledge or possession of the Vendors enters the
public domain otherwise than as a result of (a) a breach by any of
the Vendors of their obligations in this CLAUSE 20 or (b) a breach
by the person who disclosed that Confidential Information of his
confidentiality obligation and the relevant Vendor is aware of such
breach; or
20.2.3 if and to the extent that any of the Vendors make disclosure of the
Confidential Information to any person:
(a) in compliance with any requirement of law; or
(b) in response to a requirement of the Stock Exchange or the Panel
on Take-overs and Mergers or any other applicable regulatory
authority to which any of the Vendors are subject where such
requirement has the force of law; or
(c) in order to obtain tax or other clearances or consents from the
Inland Revenue or other relevant taxing or regulatory
authorities; or
20.2.4 to the consultants and professional advisers of the Vendors, in each
case on the basis that they will comply with the Vendors'
obligations of confidence hereunder,
PROVIDED THAT any such information disclosable pursuant to CLAUSES 20.2.3
(a), (b) OR (c) shall be disclosed to the extent permitted by law and only
after consultation with the other party.
20.3 The restrictions contained in this clause shall continue to apply after the
Completion without limit in time.
21. GOVERNING LAW AND JURISDICTION
21.1 English law
This Agreement shall be governed by and construed in accordance with
English law.
21.2 Courts of England and Wales
The parties to this Agreement irrevocably agree that the courts of England
shall have the non-exclusive jurisdiction to settle any dispute which may
arise out of or in connection with this Agreement and that accordingly any
Proceedings may be brought in such courts.
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21.3 Acceptance by Vendors
For the avoidance of doubt, the Vendors expressly and specifically agree
and accept the terms of this clause and sign below in recognition of this
fact.
AS WITNESS the hands of the parties or their duly authorised representatives on
the date first appearing at the head of this Agreement.
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SCHEDULE 1
THE VENDORS
(1) (2) (3) (4)
Name and Value of Quotas Entitlement to Entitlement to
address and (Lire) Cash Purchase
facsimile number Consideration Notes
(if any) ('L'Sterling) ('L'Sterling)
Xxxxxxx Xxxxxx of 34,392,000 139,271 273,937
Xxx Xxxxxxx 00,
00000 Xxxxx
Xxxxxxxx Lambertini of 11,464,000 34,434 103,302
Xxx Xxxxx Xxxxxxxxxx 00,
000 Xxxx
---------- ------- -------
Totals 45,856,000 173,705 377,239
---------- ------- -------
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SCHEDULE 2
COMPLETION
PART 1 - DELIVERY OF DOCUMENTS BY VENDORS
On Completion, the Vendors shall:-
1. execute the Deed of Sale and Transfer before an Italian notary public;
2. deliver to the Purchaser the Service Agreements duly executed by the
Vendors;
3. deliver to the Purchaser the Non Competition Agreements duly executed by
the Vendors;
4. deliver to the Purchaser a counterpart Subordination Agreement duly
executed by the Vendors;
5. deliver to the Purchaser a counterpart of the Deed of Contribution duly
executed by the Vendors; and
6. deliver to the Purchaser such waivers, consents or other documents
(including any power of attorney under which any document required to be
delivered under PART 1 of this SCHEDULE 2 has been executed) in the agreed
terms to enable the Purchaser and its nominee(s) to be registered as the
holders of the Quotas sold by the Vendors.
PART 2 - DELIVERY OF DOCUMENTS AND ACTIONS BY THE PURCHASER
Subject as provided in CLAUSE 5.3, on Completion the Purchaser shall:-
1. pay the Cash Consideration by way of electronic transfer for same day value
to the Vendors' Solicitors who are irrevocably authorised to receive the
same and whose receipt shall be an effective discharge of the Purchaser's
obligation to pay such sum and the Purchaser shall not be concerned to see
to the application or be answerable for the loss or misapplication of such
sums;
2. execute the Deed of Sale and Transfer before an Italian notary public;
3. deliver a counterpart of the Deed of Contribution duly executed by the
Purchaser;
4. counterparts of the Non Competition Agreements duly executed by the
Purchaser;
5. deliver certificates in respect of the Purchase Notes, duly issued, to such
of the Vendors as are to receive the same;
6. deliver to each of the Vendors a copy of the minutes of a meeting of the
directors of the Purchaser:
6.1 authorising the execution of this Agreement and related documents
(such copy minutes being certified as correct by an officer of the
Purchaser); and
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6.2 resolving to create and issue the Purchase Notes.
PART 3 - DELIVERY OF DOCUMENTS AND ACTIONS BY TCC
Subject as provided in CLAUSE 5.4, on Completion TCC shall:
1. execute the instrument constituting the Purchase Notes by way of
guaranteeing the obligations of the Purchaser thereunder;
2. deliver a counterpart of the Deed of Contribution duly executed by TCC;
3. deliver a counterpart of the Subordination Agreement duly executed by TCC;
4. deliver to the Vendors a copy of the minutes of a meeting of the directors
of TCC authorising the execution of:
4.1 the instrument constituting the Purchase Notes; and
4.2 this Agreement.
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SCHEDULE 3
DOCUMENTS IN THE AGREED TERMS
Consents, waivers and powers of attorney re: sale of Quotas
Deed of Contribution
Non Competition Agreements
Purchase Notes
Service Agreements
Subordination Agreement
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SCHEDULE 4
DEED OF SALE AND TRANSFER
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SCHEDULE 5
CONDUCT OF BUSINESS PENDING COMPLETION
(i) The business of the Company will be carried on as a going
concern and in the normal course.
(ii) No physical assets of the Company shall be removed from any property of
the Company save in the ordinary course of normal day to day trading.
(iii) The Vendors will use all reasonable endeavours to maintain the trade and
trade connections of the Company.
(iv) All debts which the Company incurs in the normal course of the business
will be settled within the applicable periods of credit.
(v) The Company will not enter into modify or agree to terminate any material
contract (other than in the ordinary course of business) or incur any
capital expenditure on any individual item for an amount in excess of
'L'100,000.
(vi) The Company will not appoint or employ any new employees or consultants
at an annual salary or rate of remuneration in excess of 'L'30,000.
(vii) The Company will not alter materially or agree to alter materially the
terms and conditions of employment (including benefits) of any of its
employees and no Vendor will induce or endeavour to induce any of such
employees to terminate their employment prior to Completion other than
for a justifiable reason.
(viii) The Company will not dispose of any material assets used or required for
the operation of the business of the Company (otherwise than in the
ordinary course of business) or enter into any other transaction
otherwise than in the ordinary course of business.
(ix) The Company will not create any mortgages, charges, or other encumbrances
over its assets or undertakings nor give any guarantees or indemnities in
respect of any third party otherwise than in the ordinary course of
businesses.
(x) Save for debt collection in the ordinary course of business, the Company
will not institute, settle or agree to settle any legal proceedings
relating to the business of the Company.
(xi) The Company will not grant or modify or agree to terminate any rights or
enter into any agreement relating to intellectual property or otherwise
permit any of its rights relating to the intellectual property to lapse.
(xii) The Purchaser will be given full details of any material changes in the
business, financial position and/or assets of the Company from the date
hereof prior to Completion.
(xvi) All the insurance policies of the Company shall be continued for at least
the same amount and on no less favourable terms than as before.
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SIGNED by XXXXXXX XXXXXX )
in the presence of:- )
)
SIGNED by FABRIZIO LAMBERTINI )
in the presence of:- )
SIGNED by )
)
for and on behalf of )
ASPECT VISION HOLDINGS LIMITED )
in the presence of:- )
SIGNED by )
)
for and on behalf of )
THE XXXXXX COMPANIES, INC. )
in the presence of:- )
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