EX-10.3
FINAL AGREED FORM
(07/05/04)
[TO BE EXECUTED AND KEPT OFF SHORE]
DATED 2006
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THERMODYNETICS, INC.
and
TURBOTEC PRODUCTS LIMITED
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AGREEMENT FOR THE SALE AND PURCHASE OF
THE ENTIRE ISSUED SHARE CAPITAL OF
TURBOTEC PRODUCTS, INC.
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Xxxxxxx Xxxxxxxxx
Lacon House
Xxxxxxxx'x Road
London WC1X 8RW
Tel: x00 (0)00 0000 0000
CONTENTS
CLAUSE SUBJECT MATTER PAGE
1. DEFINITIONS...........................................................1
2. INTERPRETATION........................................................3
3. SALE AND PURCHASE.....................................................3
4. CONSIDERATION.........................................................4
5. COMPLETION............................................................4
6. WARRANTIES............................................................5
7. INDEMNITIES...........................................................5
8. COSTS.................................................................6
9. POST-COMPLETION.......................................................6
10. FURTHER ASSURANCE.....................................................6
11. VARIATION.............................................................6
12. ENTIRE AGREEMENT......................................................6
13. XXXXXXX AND REMEDIES..................................................7
14. SEVERABILITY..........................................................7
15. SUCCESSORS............................................................7
16. ASSIGNMENT............................................................7
17. THIRD PARTY RIGHTS....................................................7
18. COUNTERPARTS..........................................................7
19. NOTICES...............................................................8
20. LAW AND JURISDICTION..................................................8
SCHEDULE 1 Details of the Company....................................10
SCHEDULE 2 Warranties................................................11
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AGREEMENT FOR SALE AND PURCHASE OF SHARES
DATE
PARTIES
(1) Thermodynetics, Inc. a company incorporated in the State of Delaware
under the Delaware General Corporation Law, whose principal place of
business is at 000 Xxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx 00000-0000, Xxxxxx
Xxxxxx xx Xxxxxxx (the "SELLER"); and
(2) TURBOTEC PRODUCTS LIMITED (incorporated and registered in England and
Wales under company number 5593339) the registered office of which is at
c/o Capita Registrars, The Registry, 00 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxx
XX0 0XX (the "PURCHASER").
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS
In this agreement, the following definitions apply:
"ADMISSION"
means admission of the Purchaser's ordinary shares to trading on
AIM and such admission becoming effective in accordance with Rule
6 of the AIM Rules;
"AIM"
means the market operated by the London Stock Exchange known as
AIM;
"AIM RULES"
means the rules of AIM published by the London Stock Exchange
governing admission to and the operation of AIM;
"COMPANY"
means Turbotec Products, Inc., details of which are set out in
Schedule 1;
"COMPLETION"
means unconditional completion of the sale and purchase of the
Shares in accordance with CLAUSE 5;
"CONSIDERATION"
means the consideration payable by the Purchaser to the Seller for
the Shares as set out in CLAUSE 4;
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"CONSIDERATION SHARES"
means the o ordinary shares of op each in the capital of the
Purchaser to be allocated and issued pursuant to CLAUSE 4;
"ENCUMBRANCE"
means any mortgage, charge, pledge, lien, option, restriction,
right of first refusal, right of pre-emption, claim, right,
interest or preference granted to any third party, or any other
encumbrance, security interest or adverse right of any kind (or an
agreement or commitment to create any of the same);
"GROUP"
means the Purchaser and the Company and any other subsidiary of
the Purchaser;
"LEASES"
means the leases granted to Turbotec Products, Inc in respect of
(1) 000 Xxx Xxxx Xxxx, Xxxxxxx Xxxxxxxxxxx, XXX and (2) 00 Xxxxx
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx, XXX, each of which are for a 5
year term.
"SHARES"
means the 100 shares of common stock of no par value, all issued
fully paid in the capital of the Company held by the Seller;
"TAX"
means any form of tax, duty, impost charge, withholding or levy of
any nature whatsoever, wherever in the world created or imposed
which are collected and administered by any Tax Authority, in all
cases together with incidental or supplemental penalties, charges,
interest, fines, default surcharges and costs;
"TAX AUTHORITY"
any local, municipal, governmental, state, federal or fiscal,
revenue, customs or excise authority in relation to Tax anywhere
in the world;
"TRADEMARKS ASSIGNMENT AGREEMENT"
means the trademarks assignment agreement between (1) the Seller
and (2) Turbotec Products, Inc in respect of a UK and Australian
registered trademark and a pending EU trademark application; and
"WARRANTIES"
means the warranties, representations and undertakings made by the
Seller in CLAUSE 6.1 in relation to the statements set out in
Schedule 2.
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2. INTERPRETATION
2.1 In this agreement:
2.1.1 the contents page and clause headings are for convenience only and
do not affect its construction;
2.1.2 words denoting the singular include the plural and the other way
round;
2.1.3 words denoting one gender include each gender and all genders; and
2.1.4 general words shall not be given a restrictive meaning by reason
of their being preceded or followed by words indicating a
particular class or examples of acts, matters or things.
2.2 In this agreement, unless otherwise specified or the context
otherwise requires, a reference to:
2.2.1 a person is to be construed to include a reference to any
individual, firm, partnership, company, corporation, association,
organisation or trust (in each case whether or not having a
separate legal personality);
2.2.2 a person being connected with another person is a reference to a
connected person as defined in section 346 Companies Act 1985;
2.2.3 a document, instrument or agreement (including, without
limitation, this agreement) is a reference to any such document,
instrument or agreement as modified, amended, varied, supplemented
or novated from time to time;
2.2.4 a provision of any statute or other legislation is to be construed
as a reference to such provision as amended or re-enacted or as
its application is modified from time to time (whether before or
after the date of this agreement) and shall include a reference to
any provision of which it is a re-enactment (whether with or
without modification) and to any orders, regulations, instruments
or other subordinate legislation (and relevant codes of practice)
made under the relevant statute or other legislation except to the
extent that any amendment or re-enactment coming into force after
the date of this agreement would increase or extend the liability
of any party to any other person under this agreement; and
2.2.5 writing shall include any method of reproducing words in a legible
and permanent form.
3. SALE AND PURCHASE
3.1 The Seller shall sell with full title guarantee, free from all
Encumbrances and transfer, or procure the transfer of, and the
Purchaser shall purchase, the Shares. The Seller covenants that it
has the right to sell the Shares on the terms of this Agreement.
3.2 The Seller waives (and shall procure the waiver of) all restrictions
on transfer (including pre-emption rights) which may exist in
relation to the Shares under the bylaws of the Company or otherwise.
3.3 The Purchaser shall not be obliged to complete the purchase of any of
the Shares unless the Seller shall at the same time complete the sale
of all of the Shares but completion of the
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purchase of some of the Shares will not affect the rights of the
Purchaser with respect to the purchase of the other Shares.
4. CONSIDERATION
4.1 The consideration for the sale of the Shares shall be the allotment
and issue to the Seller by the Purchaser on Completion of the
Consideration Shares.
4.2 The Consideration Shares shall be allotted credited as fully paid and
free from all Encumbrances and so that they rank PARI PASSU in all
respects with the existing issued ordinary shares in the Purchaser.
5. COMPLETION
5.1 SELLER'S DELIVERY OBLIGATIONS
At Completion, which shall take place at the offices of the
Purchaser's solicitors or at such other place as the Parties may
agree immediately upon the signing hereof, subject to clause 5.2
below, the Seller shall deliver, (or procure to be delivered to the
Purchaser (or as the Purchaser may otherwise agree));
5.1.1 the certificates in respect of the Shares in the names of the
Seller endorsed by the Seller or accompanied by duly executed
assignments, as required by the Purchaser, or an indemnity in
agreed form in relation to any missing certificates;
5.1.2 any waivers, consents or other documents necessary to vest in the
Purchaser as at Completion the full legal and beneficial interest
in the Shares and to enable the Purchaser to be registered as
owner of them,;
5.1.3 the seals, the certificate of incorporation certified by the
Secretary of State of Delaware and statutory books or minute books
and share ledgers of the Company and the bylaws of the Company and
any operating agreement;
5.1.4 the written consent, waiver and release in a form acceptable to
the Purchaser, from Citizens Bank to the sale and purchase of the
Shares for all purposes;
5.1.5 the Leases duly executed; and
5.1.6 the Trademarks Assignment Agreement duly executed.
5.2 The Seller is to deliver to the Purchaser after Completion of this
agreement the opinion letter from Xxxxxxxx Xxxx LLP addressed to both
the Purchaser and Dawnay, Day, Corporate Finance Limited including
INTER ALIA a legal opinion as to the Seller's capacity to enter into
this agreement;
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5.2 SHARE CERTIFICATES AND COMPANY STATUTORY BOOKS
The Seller shall deposit on Completion the items it must deliver
under clauses 5.1.1, 5.1.2 and 5.1.3 into the safe custody of the
finance director of the Purchaser, or such other party as the
Purchaser subsequently notifies to the Seller, provided that such
items shall at all times be held outside of the United Kingdom.
5.3 SELLER'S PERFORMANCE OBLIGATIONS
At Completion, the Seller shall procure that meetings of the
directors and shareholders of the Company (as appropriate) shall be
held at which it is resolved to approve the transfer of the Shares
and (subject to them being duly stamped if appropriate) the
registration of the Purchaser as the sole member of the Company in
respect of the Shares.
5.4 PURCHASER'S OBLIGATIONS
The Purchaser shall allot and issue the Consideration Shares to the
Seller and instruct its registrars to prepare and deliver share
certificates in respect thereof in the names of the Seller to the
Seller.
6. WARRANTIES
6.1 The Seller warrants, represents and undertakes to the Purchaser in
the terms of the statements set out in Schedule 2 as at the date of
this agreement.
6.2 The Seller acknowledges that the Purchaser in entering into this
agreement has relied on the Warranties.
6.3 The Seller agrees (in the absence of fraud) to waive any right or
remedy which the Seller may have against the Company or any present
or former director, employee or agent of the Company in connection
with any representation, warranty, agreement or statement by any such
person in relation to this agreement and any other document to be
executed in connection with it.
6.4 Each of the Warranties shall be construed as a separate and
independent provision.
7. INDEMNITIES
7.1 The Seller undertakes to indemnify the Purchaser (for itself and as
trustee for the Company and the Purchaser hereby declares itself to
act as trustee accordingly) against all or any Tax liability,
including but not limited to any loss, claim (whether or not
successful, compromised or settled), damages, actions and proceedings
whatsoever in any jurisdiction whatsoever and expenses including
legal and professional costs reasonably and properly incurred that
the Purchaser or the Company may incur as a result of or arising out
of or in connection with the execution, delivery or performance of
the terms of this agreement.
7.2 The Seller undertakes to indemnify the Purchaser (for itself and as
trustee for the Company and the Purchaser hereby declares itself to
act as trustee accordingly) against all and any
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liability, including, but not limited to any loss, claims (whether or
not successful, compromised or settled), damages, actions and
proceedings whatsoever in any jurisdiction whatsoever and expenses
including legal and professional costs reasonably and properly
incurred that the Purchaser or the Company has incurred or has agreed
to incur in respect of a liability of the Seller (whether under
contract or at law) on the Seller's behalf prior to the date of this
agreement.
8. SHARE OPTION SCHEME
The parties acknowledge that it is the Purchaser's intention to introduce
a share option scheme for Group employees following Admission in respect
of up to 10 per cent. of its then enlarged issued share capital.
9. COSTS
Each of the parties shall pay their own costs and expenses (including
legal fees and value added tax (if any)) incurred by it in connection
with the negotiation, preparation and execution of this agreement and the
completion of the transactions contemplated by this agreement.
10. POST-COMPLETION
This agreement shall remain in full force and effect after Completion in
respect of all obligations, agreements, covenants and undertakings
contained in or implied by this agreement which have not been done,
observed or performed at or prior to Completion and in respect of all
warranties, representations and indemnities contained in this agreement.
11. FURTHER ASSURANCE
The Seller shall and shall procure that any third party shall do, execute
and perform all further acts, deeds, documents and things as may be
reasonably requested from time to time in order to implement all the
provisions of this agreement, including without limitation the delivery
of all assets capable of delivery and records of the Company to the
Purchaser.
12. VARIATION
No variation of this agreement shall be effective unless made in writing
and signed by or on behalf of each of the parties.
13. ENTIRE AGREEMENT
13.1 This agreement together with any documents referred to in it contain
the entire agreement between the parties in relation to the matters
contemplated by this agreement and supersede any previous agreements
between the parties in relation to such matters.
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13.2 Each of the parties confirms that in entering into this agreement it
has not relied on any representation, warranty agreement or
undertaking not set out in this agreement and that (in the absence of
fraud) it will not have any claim right or remedy arising out of any
such representation, warranty agreement or undertaking.
14. XXXXXXX AND REMEDIES
14.1 No failure or delay to exercise, or other relaxation or indulgence
granted in relation to, any power, right or remedy under this
agreement shall operate as a waiver of it or impair or prejudice it
nor shall any single or partial exercise or waiver of any power,
right or remedy preclude its further exercise or the exercise of any
other power, right or remedy.
14.2 All rights of any person contained in this agreement are in addition
to all rights vested or to be vested in it pursuant to common law or
statute.
15. SEVERABILITY
Each of the provisions of this agreement is distinct and severable from
the others and if at any time one or more of such provisions is or
becomes invalid, unlawful or unenforceable (whether wholly or to any
extent), the validity, lawfulness and enforceability of the remaining
provisions (or the same provision to any other extent) shall not in any
way be affected or impaired.
16. SUCCESSORS
This agreement shall be binding on and enure to the benefit of the lawful
successors and permitted assigns of each party and every other person
having rights under it by virtue of the Contracts (Rights of Third
Parties) Act 1999.
17. ASSIGNMENT
The Purchaser and the Company may at any time assign any of its rights
and/or benefits under this agreement but the Seller shall not be entitled
to assign any of its rights or benefits under this agreement.
18. THIRD PARTY RIGHTS
Except as expressly provided in this agreement, nothing in this agreement
confers any rights on any person under the Contracts (Rights of Third
Parties) Act 1999.
19. COUNTERPARTS
This agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and which shall together
constitute one and the same agreement.
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20. NOTICES
20.1 Each party may give any notice or other communication under or in
connection with this agreement by letter or facsimile transmission or
electronic mail addressed to the other party. The address for service
of each party shall be the address set out above and the facsimile
numbers for service of each party shall be as set out below
PARTY FACSIMILE NUMBER MARKED FOR THE ATTENTION OF
Thermodynetics, Inc x0 000 000 0000 Xxxxxx Xxxxxx and Xxx Xxxxxx
Turbotec Products Limited x0 000 000 0000 Xxxxxx Xxxxxxxxx
or, such other address or facsimile number for service as each party
may from time to time notify to the other party for the purposes of
this clause or in the case of the Purchaser, its registered office
from time to time.
20.2 Any such communication will be deemed to be served:
20.2.1 if personally delivered, at the time of delivery and, in proving
service, it shall be sufficient to produce a receipt for the
notice signed by or on behalf of the addressee;
20.2.2 if by letter, at noon on the Business Day after such letter was
posted (or, in the case of airmail, five Business Days after such
letter was posted) and, in proving service, it shall be sufficient
to prove that the letter was properly stamped first class (or
airmail), addressed and delivered to the postal authorities;
20.2.3 if by facsimile transmission, at noon on the Business Day after
the day of transmission and, in proving service, it shall be
sufficient to produce a transmission report from the sender's
facsimile machine indicating that the facsimile was sent in its
entirety to the recipient's facsimile number; and
20.2.4 if by electronic mail, at noon on the Business Day after such
message was sent and, in proving service, it shall be sufficient
to produce a computer print out indicating that the message was
sent to the recipient's electronic mail address.
21. LAW AND JURISDICTION
21.1 This agreement and all disputes or claims arising out of or in
connection with it shall be governed by and construed in accordance
with English law, providing that nothing herein shall operate so as
to prevent either or both of the company and the Nomad from bringing
enforcement proceedings in any other jurisdiction of their choosing.
21.2 In relation to any legal action or proceedings arising out of or in
connection with this agreement, each of the parties irrevocably
submits to the non exclusive jurisdiction of the English Courts.
19.3 The Seller hereby irrevocably appoints o at o, to receive, for it and
on its or his behalf, service of process in any proceedings in
England. Such service shall be deemed completed on delivery to such
process agent (whether or not it is forwarded to and received by the
Seller). If for any reason such process agent ceases to be able to
act as such or no longer has
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an address in England, the Seller hereby irrevocably agrees to
appoint a substitute process agent acceptable to the Purchaser and
shall immediately notify the Purchaser of such appointment and
deliver to the Purchaser a copy of the new agent's acceptance of that
appointment within 30 days. Nothing shall affect the right to serve
process in any other manner permitted by the law.
IN WITNESS of which this agreement has been duly signed and delivered on the
date written at the beginning of this agreement.
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SCHEDULE 1
Details of the Company
Name: Turbotec Products, Inc.
Registered office: 000 Xxx Xxxx Xxxx, Xxxxxxx, XX 00000
Date and place of incorporation: 4 April, 1978
Registered number: 0072791
Director: Xxxxxx X. Xxxxxx
President: Xxxxxx X. Xxxxxxxxx
Secretary: Xxxx X. Xxxxxxx
Authorised share capital: 5,000 common stock of no par value
Issued share capital: 100
Shareholder: Thermodynetics, Inc.
Accounting reference date: 31 March
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SCHEDULE 2
Warranties
1. CAPACITY
1.1 The Seller has the requisite corporate power and authority without
requiring the consent of any person to enter into and perform its
obligations under this agreement. The Seller's execution and delivery
of this agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorised by all
necessary corporate action on the part of the Seller. This agreement
has been validly executed and delivered by an authorised officer of
the Seller and this Agreement is and shall constitute the legally
valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms.
1.2 The Seller is entitled to sell and transfer the full legal and
beneficial interest in the Shares to the Purchaser on the terms of
this agreement.
1.3 The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Connecticut, USA and
has the requisite corporate power and authority to own or lease its
properties and assets and to carry on all business activities now
conducted by the Company. The Company is duly qualified and in good
standing (or comparable status) in each jurisdiction in which the
nature of the Company's business or the ownership, leasing or holding
of the Company's assets makes such qualification necessary.
2. SHARE CAPITAL AND SCHEDULE 1
2.1 The Seller is the registered holder and beneficial owner of the
Shares.
2.2 The authorised capital stock of the Company consists of 5,000 common
shares of no par value. The Shares constitute the only issued and
outstanding shares of capital stock or other securities of the
Company of whatever class, series or designation. The Shares are duly
authorised, validly issued, fully paid and non-assessable.
2.3 The Company has not entered into any agreement or commitments to
create any other class or group of stockholders other than the
Shares.
2.4 There are no outstanding subscriptions, options, warrants, puts,
rights (including phantom stock rights), calls, commitments,
understandings, conversion rights, rights of exchange, plans,
convertible or exchangeable securities, or other agreements pursuant
to which the Company is or may become obligated to issue, sell,
purchase, retire or redeem any shares of capital stock or other
securities of the Company.
2.5 The information set out in Schedule 1 is true, complete and accurate
in all respects.
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3. REGULATORY CONSENTS AND SOLVENCY
3.1 No consent, approval or action of, filing with or notice to any
governmental or regulatory authority or person is necessary or
required under any of the terms, conditions or provisions of any law
or order of any governmental or regulatory authority or otherwise for
the execution and delivery of this agreement by the Seller and such
execution, delivery and performance will not violate, conflict with
or result in a breach of any of the provisions of the certificate of
incorporation, bylaws or other comparable documents of the Company
and will not result in the violation by the Company of any laws or
orders of any governmental or regulatory authority applicable to the
Company or if any consents or notices have been obtained, given or
waived, will conflict with or result in a violation or breach of or
constitute (with or without notice of lapse of time or both) a
default under or require the Company to obtain any consents, approval
or action of or making any filing with or give any notice to or
result in or give any person any right of payment or reimbursement,
termination, cancellation, modification or acceleration of, or result
in the creation or in position of any lien upon any of the Company's
assets under any of the terms, conditions or provisions of any
contract to which the Company is a party or by which the Company or
any of its respective assets or properties.
3.2 No steps have been taken, or legal proceedings started or threatened
against the Seller for its winding-up or dissolution, nor has it
entered into any arrangement or composition for the benefit of
creditors, or for the appointment of a receiver, trustee or similar
officer of any of its properties, revenues, undertakings or assets.
3.3 The Seller has not been unable, or admitted in writing that it is
unable, to pay its debts or has stopped or suspended (or threatened
to stop or suspend) payment of its debts generally, or ceased or
threatened to cease carrying on all or a substantial part of its
business.
4. CONTRACTS
4.1 The Company is not party to any agreement that contains provisions
allowing the counterparty to terminate the contract on a change of
control of the Company or requiring the consent of any party to a
change of control of the Company.
4.2 The Company has not given any guarantee of, or security for any
overdraft, loan or loan facility granted to, or obligations
undertaken by the Seller, and the Company is not a party to any
guarantee, suretyship, indemnity or similar commitment.
5. TAX LIABILITIES
5.1 So far as the Seller is aware, nothing contemplated by this agreement
will give rise to a Tax liability being incurred by the Purchaser or
the Company.
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Signed by a director, duly authorised for and on )
behalf of TDYT ) /s/
in the presence of )
Witness:..............................................
Name:.................................................
Address:..............................................
.......................................................
.......................................................
Occupation:...........................................
EXECUTED as a deed by TURBOTEC )
PRODUCTS LIMITED )
acting by: )
Director /s/
Director/Secretary /s/
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