EXHIBIT 10.35
[The Registrant shall furnish supplementally a copy of any omitted schedule to
the Commission upon request.]
THIS AGREEMENT is made on 14 February 1997
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BETWEEN:
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(1) THE PERSONS whose names and addresses are set out in Schedule 2
("the Sellers")
(2) ARIS CORPORATION of 0000 Xxxx Xxxx Xxx, Xxxxx 000, Xxxxxxx, XX
00000-0000, U.S.A. ("the Buyer").
IT IS HEREBY AGREED as follows:-
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1. INTERPRETATION
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1.1 In this Agreement unless the context otherwise requires:-
"Associate" means any person, firm or company
which is a connected person (as
defined in Section 839 ICTA) of a
Seller
"the Buyer's Group" means the Buyer and any subsidiary,
fellow subsidiary, holding company
or Associate of the Buyer
"the Buyer's Shares" means 280,000 fully paid,
nonassessable shares in the common
stock of the Buyer
"the Buyer's Solicitors" means Xxxxx & Co of 00 Xxxxxxxxx,
Xxxxxx, XX0X 0XX
"CA 1985" means the Companies Xxx 0000
"the Company" means Oxford Computer Group Limited,
brief details of which are set out
in Schedule 1
"Completion" means completion of the sale and
purchase of the Shares in accordance
with clause 4
"the Consideration" means the consideration set out in
clause 3
"Directors" means the directors of the Company
or (where appropriate) of a
Subsidiary of the Company
immediately before the execution of
this Agreement
"the Disclosure Letter" means the letter of today's date
from the Sellers' Solicitors to the
Buyer's Solicitors to be updated at
Completion
"the Employees" means the employees of the Company
and of the Subsidiaries of the
Company listed in the Disclosure
Letter
"Environmental Laws" means all regulations, directions
and other environmental protection,
occupational, health and safety or
similar laws, regulations,
restrictions, licences, rules, and
European
Community directives as in force in
the United Kingdom, including but
not limited to the Environmental
Protection Xxx 0000, the Water Xxx
0000, the Control of Substances
Hazardous to Health Regulations, the
Control of Pollution Xxx 0000 and
the Radioactive Substances Xxx 0000
"Escrow Agent" means the escrow agent named and
defined as such in the Escrow
Agreement
"Escrow Agreement" means an agreement to be entered
into and made between the Buyer and
the Indemnifying Sellers
"Escrowed Shares" means the Buyer's Shares to be
placed in escrow pursuant to the
terms of clause 3.2 and in
accordance with the provisions of
the Escrow Agreement, or such fewer
number of Buyer's Shares to be held
in escrow from time to time, reduced
in accordance with the terms of the
Escrow Agreement
"event" includes (without limitation) the
death of any person, any change in
the residence of any person for the
purposes of Taxation, any payment,
transaction, action, omission or
occurrence of whatever nature and a
failure to make sufficient dividend
payments to avoid a shortfall
apportionment or deemed distribution
of income, and references to an
event occurring on or before
Completion shall include the
combined result of two or more
events the first of which shall have
taken place (or shall be deemed to
have taken place) or the
commencement of which shall have
occurred (or shall be deemed to have
occurred) on or before Completion,
and shall also include Completion
"FA" means Finance Act
"Holding Company" means a holding company as defined
in Section 736 CA 1985
"ICTA" means the Income and Corporation
Taxes Xxx 0000
"Indemnifying Sellers" means Xxxxx Xxxxx Xxxxxxxx, Xxxx
Xxxxxxx-Xxxxx, Xxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx and Xxxxxx Xxxxxxxxxx
"Intellectual Property" means patents, trade marks, service
marks, designs, applications and
rights to apply for any of the
foregoing, copyright (including all
copyright in any drawings, plans,
specifications, manuals, designs,
and computer software)
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inventions, trade secrets, financial
information, know how and other
confidential information, and
business names and any similar
rights, whether registrable or
registered or not, in any part of
the world, in each case owned by or
used by the Company or any
Subsidiary of the Company for the
purpose of its business
"the Last Accounts" means the audited balance sheet of
the Company as at the Last Accounts
Date, the audited profit and loss
account of the Company for the
financial period ended on the Last
Accounts Date, and the auditor's and
the directors' reports and notes
thereon
"the Last Accounts Date" means 31 December 1996
"liabilities" means as at any relevant date, all
actual or contingent liabilities,
whether liquidated, quantified or
unliquidated, known or not, arising
out of any event occurring before,
or from circumstances subsisting, at
that date
"the Planning Acts" means the Town and Country Planning
Xxx 0000, the Planning (Listed
Buildings and Conservation Areas)
Xxx 0000, the Planning (Hazardous
Substances) Xxx 0000 and the
Planning (Consequential Provisions)
Xxx 0000
"the Property" means the freehold and leasehold
land and buildings briefly described
in Schedule 4
"the Securities Act" means the U.S. Securities Act of
1933, as amended
"the Sellers' Solicitors" means Xxxxx & Xxxxxx of Xxxxxxxxx
Xxxxx, 0 Xxxxx Xxx, Xxxxxx, Xxxx XX0
0XX
"the Shares" means the whole of the issued share
capital of the Company
"SSAP" means either a Statement of Standard
Accounting Practice published by the
Institute of Chartered Accountants
in England and Wales or a Financial
Reporting Standard as issued by the
Accounting Standards Board
"the Stock Exchange" means the International Stock
Exchange of the United Kingdom and
the Republic of Ireland Limited
"Subsidiary" means a subsidiary as defined in
Section 736 CA 1985
"Supplemental Agreement" means any deed or document to be
entered into
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pursuant to or contemplated by the
terms of this Agreement
"TCGA" means the Taxation of Chargeable
Gains Xxx 0000
"Taxation" means all forms of taxation,
charges, duties, imposts,
withholdings, rates, levies and
governmental charges (whether
national, state, provincial or
local) in the nature of or
corresponding to tax, whatsoever and
whenever created, enacted or
imposed, and whether of the United
Kingdom or elsewhere, including
without limitation, corporation tax,
advance corporation tax, income tax
(including income tax required to be
deducted or withheld from or
accounted for in respect of any
payment), surtax, national insurance
and other social security
contributions, capital gains tax,
capital transfer tax, inheritance
tax, estate duty, development land
tax, value added tax, petroleum
revenue tax, duties of customs and
excise, stamp duty, capital duty,
stamp duty reserve tax, any
liability arising under Section 601
ICTA, uniform business rates,
general rates and water rates and
any payment whatever which the
Company may be or become bound to
make to any person or authority as a
result of any enactment relating to
taxation and any taxation
corresponding to, similar to,
replaced by or replacing any of them
and all fines, penalties, interest,
costs, charges and expenses
connected therewith regardless of
whether any such taxation, charges,
duties, imposts, withholdings,
rates, levies, governmental charges,
fines, penalties, interest, costs
and expenses are chargeable directly
or primarily against or attributable
directly or primarily to the Company
or any other person and of whether
any amount in respect of them is
recoverable from any other person
under this Agreement or the Tax
Covenant and "tax" shall be
construed accordingly
"Taxation Statutes" means statutes (and all regulations
and arrangements whatsoever made
thereunder) whether of the United
Kingdom or elsewhere, and whether
enacted before or after the date of
this Agreement, providing for or
imposing any Taxation
"Tax Covenant" means a deed relating to Taxation in
the agreed form to be executed and
delivered by the Indemnifying
Sellers, the Company and the
Company's Subsidiaries at Completion
4
"Tax Evasion" means failure to comply with any
obligations in relation to Taxation
imposed on the Company, its
Subsidiaries and/or any of its or
their officers, directors, employees
or agents prior to Completion which
shall constitute a criminal offence
under the laws of any country where
the Company and/or the Company's
Subsidiaries conducts business
"Threshold Amount" means twenty five thousand US
dollars (US$25,000)
"the Warranties" means the warranties representations
and undertakings set out in Schedule
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1.2 The Schedules form part of this Agreement and take effect as if
set out in this Agreement and references to this Agreement
include the Schedules.
1.3 References to a statute or statutory provision include all
subordinate legislation made pursuant to it, and include any
statute, statutory provision or subordinate legislation which,
before, on or after the date of this Agreement, amends,
consolidates or replaces it.
1.4 Unless the context otherwise requires, references to the singular
include the plural and vice versa, references to any gender
include all genders, and references to "person" include a body
corporate, a natural person, a firm, an unincorporated
association, a business, and a partnership.
1.5 Clause headings are for information only and shall not affect the
construction of this Agreement.
1.6 References to "in the agreed form" mean in the form agreed in
writing between the Sellers and the Buyer and for the purpose of
identification initialled by the Sellers' Solicitors and the
Buyer's Solicitors.
2. SALE AND PURCHASE
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2.1 Each of the Sellers shall sell with full title guarantee and the
Buyer shall buy the Shares free from all claims, liens, charges
and encumbrances, and together with all benefits and rights
attaching to the Shares, including all dividends declared, and
distributions made or paid, on or after the date of this
Agreement.
2.2 Each of the Sellers hereby waives any pre-emption rights he may
have in relation to any of the Shares under the Articles of
Association of the Company or otherwise.
3. CONSIDERATION
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3.1 In consideration for the sale of the Shares by the Sellers to the
Buyer, the Buyer shall, on Completion, allot and issue to each
Seller the number of Buyer's Shares set out opposite such
Seller's name in column (4) of Schedule 2.
3.2 Twenty eight thousand (28,000) of the Buyer's Shares (being ten
percent (10%) of the total number of Buyer's Shares to be
allotted and issued by the Buyer to the Sellers hereunder) shall,
on Completion, be placed in escrow by the Indemnifying Sellers in
accordance with the terms of the Escrow Agreement.
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4. COMPLETION
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4.1 Completion shall take place at the offices of the Buyer's
Solicitors on 28 February 1997 when the matters set out in this
clause shall be carried out.
4.2 At Completion, the Sellers shall use their best endeavours to
deliver to the Buyer's Solicitors all Supplemental Agreements,
the documentation and all other items and property required to be
delivered by the Sellers pursuant to Schedule 5 and shall do all
such other acts or things attributable to the Sellers as set out
in Schedule 5.
4.3 At Completion, the Buyer will deliver to each Seller the number
of Buyer's Shares set out opposite such Seller's name in column 4
of Schedule 2.
4.4 The Buyer will not be obliged to complete the purchase of any of
the Shares unless the Sellers comply with all their obligations
under Schedule 5.
4.5 At Completion, the parties shall have executed a certificate of
Completion, certifying that all Supplemental Agreements shall
have been executed and entered into in the agreed form, and that
all actions to be taken prior to Completion and all conditions
precedent to Completion set forth in the attached Schedule 5
shall have been completed to the reasonable satisfaction of the
parties, or waived.
4.6 If the Sellers do not comply with any of their obligations under
Schedule 5 on the date agreed for Completion, or any subsequent
date to which the Buyer agrees to defer Completion, or if the
Buyer considers that the Sellers are in breach of any provision
of clause 5.1 below, the Buyer may (without prejudice to any
accrued rights of the Buyer) rescind this Agreement. If the
Buyer agrees to defer Completion to another date in accordance
with this clause 4.6, the provisions of this Agreement shall
apply as if that other date is the date set for Completion in
clause 4.1 above.
5. SELLERS' WARRANTIES
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5.1 The Sellers, jointly and severally, to the extent and subject as
set out in this clause 5, warrant, represent and undertake to the
Buyer that the Warranties are true, accurate and complete as at
the date of this Agreement, and shall continue up to and
including Completion to be, true, accurate and complete in all
respects. For this purpose only, any reference (whether express
or implied) in a Warranty (i) to "the date of this Agreement"
shall also be construed as a reference to "the date of
Completion", and (ii) to "the date of Completion" shall also be
construed as a reference to "the date of this Agreement".
5.2 Each of the Warranties is given subject to the matters fully,
fairly and specifically disclosed in the Disclosure Letter.
5.3 Each Warranty in respect of "the Company" shall be deemed to be a
Warranty given in respect of the Company and each Subsidiary of
the Company and (unless the context or subject matter otherwise
requires) the expression "the Company" in this clause and
Schedule 3 shall be construed accordingly to include each
Subsidiary of the Company.
5.4 Each of the Warranties is a separate and independent Warranty and
no Warranty or clause in this Agreement restricts or limits the
extent or application of any other Warranty or other clause.
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5.5 The Buyer's rights and remedies in respect of any breach of the
Warranties or under any other provision in this Agreement shall
not be regarded as modified or varied by Completion, by any
investigation made by or on behalf of the Buyer into the affairs
of the Company, by the Buyer's rescinding or failing to rescind
this Agreement, or by its failure to exercise or delay in
exercising any right or remedy available to it.
5.6 The Indemnifying Sellers, jointly and severally, undertake to the
Buyer (for itself and as trustee for the Company and each of the
Company's Subsidiaries) to indemnify the Buyer, the Company and
each of the Subsidiaries of the Company against any diminution in
the value of their respective assets, or any increase in their
respective liabilities, and/or any payment necessarily made or
required to be made by any of them as a result of or in
connection with, any breach of any of the Warranties, or required
to put them in the position in which they would have been had
there been no such breach of the Warranties, and against all
costs and expenses incurred in connection therewith. This
indemnity shall be without prejudice to any other rights and
remedies of the Buyer in relation to the breach.
Without prejudice to any other rights of the Buyer it is agreed
that the Buyer shall not make any claim under this clause 5.6 or
under the Tax Covenant until after the first anniversary date of
Completion. Except as provided in clause 5.7 below, the
Indemnifying Sellers shall not be liable to the Buyer under this
clause 5.6 or under the Tax Covenant (i) unless the aggregate
amount of all claims thereunder by the Buyer exceeds the
Threshold Amount, (ii) for more than the value of the Escrowed
Shares, and (iii) beyond the third anniversary date of
Completion. Upon the Buyer's claims under this clause 5.6 or
under the Tax Covenant reaching or exceeding the Threshold
Amount, the Indemnifying Sellers shall be liable for payment of
the entire Threshold Amount together with any legitimate claims
of the Buyer in excess thereof limited as aforesaid.
5.7 The Indemnifying Sellers, jointly and severally, undertake to the
Buyer (for itself and as trustee for the Company and each of the
Company's Subsidiaries) to indemnify the Buyer, the Company and
each of the Subsidiaries of the Company against any diminution in
the value of their respective assets, or any increase in their
respective liabilities, and/or any payment necessarily made or
required to be made by any of them as a result of or in
connection with, any Tax Evasion on the part of the Company, any
Subsidiaries of the Company and/or any of its or their officers,
directors, employees or agents, or required to put the Buyer, the
Company and/or any of the Subsidiaries of the Company in the
position in which they would have been had there been no such Tax
Evasion, and against all costs and expenses incurred in
connection therewith.
Notwithstanding anything contained in this Agreement or any
Supplemental Agreement, the Indemnifying Sellers' liability to
the Buyer under this clause 5.7 shall be for a period of eighty
(80) years; provided however, that (i) the Indemnifying Sellers
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shall not be liable to the Buyer under this clause 5.7 unless the
aggregate amount of all claims by the Buyer under this clause 5.7
exceeds the Threshold Amount and (ii) the liability of the
Indemnifying Sellers under this clause 5.7 shall not exceed one
million four hundred thousand US dollars (US$1,400,000). Upon
the Buyer's claims under this clause 5.7 reaching or exceeding
the Threshold Amount, the Indemnifying Sellers shall be liable
for payment of the entire Threshold Amount together with any
legitimate claims of the Buyer in excess thereof limited as
aforesaid.
The provisions of this clause 5.7 shall be in addition to, and
not limitation of, any other rights and remedies which the Buyer
may have under this Agreement, any Supplemental Agreement or
otherwise.
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5.8 The Sellers warrant and represent in relation to any Warranty
which refers to the knowledge, information, belief and/or
awareness of the Sellers or any similar expression that the
Sellers have made full, due and careful enquiry into the subject
matter of that Warranty.
5.9 Between the execution of this Agreement and Completion, the
Sellers shall (i) use their best endeavours to procure that the
Company and each of its Subsidiaries complies in all respects
with Schedule 5, and (ii) notify the Buyer immediately in the
event that any of the Sellers becomes aware of any breach of this
clause 5.9 or of clause 5.1 or any fact or circumstance which has
resulted or will or is likely to result in any of the Warranties
ceasing to be true, complete and accurate prior to Completion.
5.10 Each Seller shall not offer, sell or otherwise transfer the
Buyer's Shares, prior to the date which is one year after
Completion except (A) pursuant to a registration statement that
has been declared effective under the Securities Act, (B)
pursuant to offers and sales that occur outside the United States
to non-U.S. citizens within the meaning of Regulation S under the
Securities Act in a transaction meeting the Requirements of Rules
903 and 904 under the Securities Act, or (C) pursuant to another
available exemption from the registration requirements of the
Securities Act, subject to the Buyer's right prior to any offer,
sale or transfer pursuant to clause (B) or (C) to require the
delivery of an opinion of counsel, certificates and/or other
information reasonably satisfactory to the Buyer.
5.11 The Sellers undertake (for themselves and any nominees) that so
long as they remain the registered holder of any of the Shares
they will:-
(a) not represent themselves as the beneficial owners of any of
the Shares;
(b) exercise all powers, rights and privileges vested in the
registered holder of the Shares only in accordance with the
written directions of the Buyer; and
(c) hold the Shares and any dividends or other distributions of
profits or assets in respect thereof in trust for the Buyer.
6. BUYER'S WARRANTIES
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6.1 The Buyer represents and warrants that:
(a) it is a corporation duly organised and existing under the
laws of the State of Washington, U.S.A. and that the Buyer
has all necessary corporate power and authority to own,
lease and operate its properties and assets and to carry on
its business as now conducted and as proposed to be
conducted;
(b) it has the full corporate power and corporate authority to
enter into this Agreement and to carry out the terms of this
Agreement. The Buyer has taken all corporate action
necessary to authorise the execution, delivery and
performance of this Agreement. This Agreement has been duly
and validly executed and delivered by the Buyer, and is
binding upon and enforceable against the Buyer in accordance
with its terms, except as enforceability may be limited or
affected by applicable bankruptcy, insolvency,
reorganisation or other laws of general application relating
to or affecting the rights of creditors, and except as
enforceability may be limited by rules of law governing
specific
8
performance, injunctive relief or other equitable remedies;
(c) financial statements provided by the Buyer to the Seller at
Completion shall be true, complete and accurate in all
material respects, and that such financial statements shall
not vary by greater than five percent (5%) from the audited
financial statements for such period currently being
prepared by Price Waterhouse (other than any restatements of
such financial statements or disallowance of credits and
deductions); and
(d) it will use its best endeavours to select an underwriter to
assist it in preparing an Initial Public Offering.
7. RESTRICTIVE COVENANTS
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7.1 In this clause 7:-
(a) "the Business" means offering computer training and
education services as a Microsoft
Authorised Training and Education
Centre and/or systems integration
and consulting services on Microsoft
BackOffice products or Oracle
database applications only
(b) "the Prohibited Area" means England, Wales, Scotland,
Northern Ireland, Eire, Channel
Isles and the Isle of Man
7.2 In further consideration of the sale and purchase effected by
this Agreement and in order to protect the goodwill of the
Company and of the Subsidiaries of the Company, each Indemnifying
Seller hereby undertakes with the Buyer as follows:-
(a) he shall not at any time hereafter divulge or communicate to
any person for his own or any other person's benefit or to
the detriment or possible detriment of the Company, any
Subsidiary of the Company or the Buyer, any of the trade
secrets or other confidential information of the Company,
any Subsidiary of the Company or the Business, or of any
client, customer or supplier of the Company or any of its
Subsidiaries, which has or may come to his knowledge;
(b) if he has obtained trade secrets or other confidential
information belonging to any third party under an agreement
which contained restrictions on disclosure he will not at
any time infringe such restrictions;
(c) he will not either directly or indirectly as a director,
partner or greater than five percent (5%) shareholder within
one year after Completion carry on, or be engaged, concerned
or interested in carrying on the Business within the
Prohibited Area in competition with the Company or any
Subsidiary of the Company; provided however, that this
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clause 7.2(c) shall not preclude Ian Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx from acting solely as an instructor or consultant
in the Prohibited Area, or from prohibiting Xxxxx Xxxxx
Xxxxxxxx from continuing to provide consulting services
through Camel Services Ltd, which are the same as or
substantially similar to those which have been provided
through Camel Services Ltd prior to the date hereof;
(d) in connection with any business competing or likely to
compete with the Business, he will not use any business
name, trade xxxx or logo used by the
9
Company or any Subsidiary of the Company within the two
years preceding Completion, or any confusingly similar
business name, trade xxxx or logo;
(e) he will not within one year after Completion solicit the
custom of, interfere with, or endeavour to entice away from
the Company or any Subsidiary of the Company, any person who
at any time during the two years immediately preceding
Completion was a customer of the Company or any Subsidiary
of the Company in relation to goods sold or services
provided to that person by the Company or any of its
Subsidiaries;
(f) he will not within one year after Completion employ, seek to
employ, interfere with, or endeavour to entice away from the
Company or any Subsidiary of the Company, any person
employed by the Company or any of its Subsidiaries at any
time during the last two years immediately preceding
Completion; and
(g) he will not do any of the above-mentioned things directly or
indirectly, with or for or on behalf of any other person.
7.3 Subject to the provisions of this clause 7, each of the Sellers
undertakes to procure that each of his Associates shall be bound
by and observe the provisions of this clause as if they were
parties covenanting with the Buyer.
7.4 Nothing in this clause shall preclude a Seller from owning (for
investment purposes only) not more than five percent (5%) of the
equity share capital of any company listed on The Stock Exchange.
7.5 The parties confirm that they consider the restrictions contained
in this clause 7 to be reasonable in all respects, but if any
such restriction is held to be invalid or ineffective, but would
not be so held if some part of it were deleted, or some
modification were made to its terms, the parties agree that such
restriction shall apply with such deletion or modification as may
be necessary to make it valid and effective.
7.6 The provisions of sub-clauses 7.2(a) to (g) are separate and
severable undertakings and shall be enforceable accordingly.
8. GENERAL
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8.1 This Agreement shall enure for the benefit of the successors in
title and assigns of each party: but no party may transfer its
obligations hereunder. The Buyer may assign all or any of its
rights under this Agreement or any Supplemental Agreement to any
other member for the time being of the Buyer's Group.
8.2 Any assignment by the Buyer of its rights under this Agreement
may be partial; so that the benefit of the Warranties or the Tax
Covenant or any other indemnities and guarantees in this
Agreement or any Supplemental Agreement may enure to the benefit
of the holders of the Shares in proportion to their respective
interests.
8.3 The Sellers undertake that they and any necessary third party
shall execute and perform all such further acts, deeds or
assurances as may be required to vest the Shares in the Buyer and
otherwise to fulfil the provisions of this Agreement.
8.4 Insofar as any provisions of this Agreement are not performed at
Completion or are not expressly waived by the Buyer they will
remain in full force and effect notwithstanding Completion.
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8.5 Unless expressly stated otherwise, all obligations of the Sellers
under this Agreement and any Supplemental Agreement are joint and
several obligations.
8.6 The Buyer may release or compromise the liability of, or grant
any time, forbearance or indulgence to, any Seller under this
Agreement and any Supplemental Agreement without modifying,
affecting or prejudicing its rights against any other Seller.
8.7 The Buyer's rights and remedies under this Agreement are
additional to any other rights and remedies which may be
available to it; and its exercise of or failure to exercise, any
right or remedy will not constitute a waiver of any other right
or remedy.
8.8 If any term or provision of this Agreement or any Supplemental
Agreement is held to be wholly or partly illegal or unenforceable
at law, that term or provision shall to that extent be deemed not
to form part of this Agreement or that Supplemental Agreement but
the enforceability of the remainder of this Agreement or that
Supplemental Agreement shall not be affected.
8.9 None of the Sellers will make any announcement in connection with
this Agreement without the Buyer's written approval, unless
required by law or The Stock Exchange, and then only after prior
consultation with the Buyer.
8.10 Each party will bear all professional or other fees and expenses
incurred by it in connection with the negotiation and completion
of this Agreement, and all acts and events contemplated by it.
8.11 Time shall be of the essence of this agreement except as
expressly varied by the Buyer, both as regards the dates and
periods specifically mentioned, and as to any substituted dates
and periods agreed in writing by the parties.
8.12 This Agreement and all Supplemental Agreements together
constitute the entire agreement between the parties relating to
the sale and purchase of the Shares and no variation of its or
their terms will have effect unless it is in writing and signed
by each party.
8.13 This Agreement shall be governed by and construed in accordance
with English Law and the parties submit to the jurisdiction of
the English Courts.
9. NOTICES
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9.1 Any notice to be given under this Agreement or any Supplemental
Agreements shall be in writing, and may be delivered by hand, or
sent by facsimile or international overnight courier, addressed
to the party to be served (in the case of an individual) at the
address herein stated and (in the case of a company) at its
principal place of business for the time being or (in either
case) to such other address as the addressee may from time to
time have notified for the purpose of this clause.
9.2 Notices delivered by hand shall be deemed to have been served at
the time of actual delivery. Notices sent by facsimile shall be
deemed to have been served three hours after transmission if
transmitted before 2 p.m. on a business day, and otherwise by 11
a.m. on the next business day. Notices sent by international
overnight courier shall be deemed to have been served three
business days after having been deposited with an international
overnight courier.
9.3 In proving service by international overnight courier it shall be
sufficient to prove that
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the envelope containing the notice was properly addressed, and
deposited with an international overnight courier.
AS WITNESS the hands of the parties or their duly authorised representatives the
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day and year first before written.
SIGNED by XXXXXX XXXXXXXXXX ) /s/ Xxxx Xxxxxxx-Xxxxx, as attorney
in the presence of: )
/s/ XX Xxxxxx
Solicitors Oxford
SIGNED by XXXXX XXXXX XXXXXXXX ) /s/ Xxxxx Xxxxxxxx
in the presence of: )
/s/ XX Xxxxxx
Solicitors Oxford
SIGNED by XXXX XXXXXXX-XXXXX ) /s/ Xxxx Xxxxxxx-Xxxxx
in the presence of: )
/s/ XX Xxxxxx
Solicitors Oxford
SIGNED by XXX XXXXXXX ) /s/ Xxx Xxxxxxxxxx
XXXXXXXXX XXXXXXXXXX )
in the presence of: )
/s/ XX Xxxxxx
Solicitors Oxford
SIGNED by XXXXXX XXXXXX ) /s/ X. Xxxxxxxx
XXXXXXX XXXXXXXX )
in the presence of: )
/s/ XX Xxxxxx
Solicitors Oxford
SIGNED by XXXXX XXXXX ) /s/ Xxxx Xxxxxxx-Xxxxx, as attorney
XXXXXXXXXX XXXXXXX )
in the presence of: )
/s/ XX Xxxxxx
Solicitors Oxford
SIGNED by XXXXXXX XXXXXXX ) /s/ X. Xxxxxxx
in the presence of: )
/s/ XX Xxxxxx
Solicitors Oxford
SIGNED by XXXXXXX XXXXXXXX XXX ) /s/ Xxxx Xxxxxxx-Xxxxx, as attorney
in the presence of: )
/s/ XX Xxxxxx
Solicitors Oxford
SIGNED by XXXX XXXXXX ) /s/ Xxxx Xxxxxxx-Xxxxx, as attorney
in the presence of: )
/s/ XX Xxxxxx
Solicitors Oxford
12
SIGNED by XXXXX XXXXXXX ) /s/ Xxxx Xxxxxxx-Xxxxx, as attorney
in the presence of: )
/s/ XX Xxxxxx
Solicitors Oxford
SIGNED by XXXX SONG ) /s/ Xxxx Song
duly authorised to sign for and )
on behalf of ARIS CORPORATION )
in the presence of: )
/s/ Xxxx Xxxxxxx, General Counsel
Aris Corporation
13
SCHEDULE 1
----------
DETAILS OF THE COMPANY AND THE SUBSIDIARIES
Part 1: The Company
-------------------
Company Number: 1717794
Date and Place of incorporation: 25 April 1983 in England and Wales
Share Capital: Authorised Allotted and Issued
---------- -------------------
(Pounds)100 divided into 2,000 2000 ordinary shares of
shares of 5 xxxxx each 5 xxxxx each
Issued Shares held by:
Shareholder and Beneficial Owner Number of Shares
-------------------------------- ----------------
Xxxxxx Xxxxxxxxxx 229
Xxxxx Xxxxx Xxxxxxxx 300
Xxxx Xxxxxxx-Xxxxx 739
Ian Xxxxxxx Xxxxxxxxxx 475
Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx 00
Xxxxx Xxxxx Xxxxxxxxxx Cowling 65
Xxxxxxx Xxxxxxx 65
Xxxxxxx Xxx 14
Xxxx Xxxxxx 14
Xxxxx Xxxxxxx 20
Registered Office: Wolsey Hall
00 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Directors: Xxxx Xxxxxxxx Xxxxxxxx
Xxxx Xxxxxxx-Xxxxx
Xxxxx Xxxxx Xxxxxxxx
Ian Xxxxxxx Xxxxxxxxx Xxxxxxxxxx
Secretary: Ian Xxxxxxx Xxxxxxxxx Xxxxxxxxxx
Accounting Reference Date: 31 March
Auditors: Xxxx & Company
000 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Tax District and Reference Number: Oxford 1 District. Reference 184/31840/0585.
VAT Registration Number and local VAT office: Number 5964492 85 (group
registration including Oxford Computer Training Limited and Oxford Computer
Applications Limited); VAT Office: Oxford.
14
DETAILS OF THE COMPANY AND THE SUBSIDIARIES
Part 2: The Subsidiaries of the Company
---------------------------------------
Name of Subsidiary: Oxford Computer Applications Limited
Company Number: 2739929
Date and Place of Incorporation: 14 August 1992 in England and Wales
Share Capital: Authorised Allotted and Issued
---------- -------------------
(Pounds)100 divided into 100 100 ordinary shares of
shares of (Pounds)1 each (Pounds)1 each
Issued Shares held by:
Shareholder and Beneficial Owner Number of Shares
-------------------------------- ----------------
Oxford Computer Group Limited 100
Registered Office: Wolsey Hall
00 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Directors: Ian Xxxxxxx Xxxxxxxxx Xxxxxxxxxx
Xxxx Xxxxxxx-Xxxxx
Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx
Secretary: Ian Xxxxxxx Xxxxxxxxx Xxxxxxxxxx
Accounting Reference Date: 31 March
Auditors: Xxxx & Company
000 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Tax District and Reference Number: Oxford 1 District. Reference
184/31840/06655.
VAT Registration Number and local VAT office: Number 5964492 85 (group
registration including Oxford Computer Training Limited and Oxford Computer
Group Limited); VAT Office: Oxford.
15
DETAILS OF THE COMPANY AND THE SUBSIDIARIES
Part 2: The Subsidiaries of the Company
---------------------------------------
Name of Subsidiary: Oxford Computer Training Limited
Company Number: 2739585
Date and Place of Incorporation: 14 August 1992 in England and Wales
Share Capital: Authorised Allotted and Issued
---------- -------------------
(Pounds)100 divided into 100 100 ordinary shares of
shares of (Pounds)1 each (Pounds)1 each
Issued Shares held by:
Shareholder and Beneficial Owner Number of Shares
-------------------------------- ----------------
Oxford Computer Group Limited 100
Registered Office: Wolsey Hall
00 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Directors: Xxxx Xxxxxxx-Xxxxx
Xxxxxxx Xxxxxxx
Ian Xxxxxxx Xxxxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx Xxxxxxxxxx Xxxxxxx
Secretary: Xxxxx Xxxxx Xxxxxxxxxx Cowling
Accounting Reference Date: 31 March
Auditors: Xxxx & Company
000 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Tax District and Reference Number: Oxford 1 District. Reference
184/61840/06662.
VAT Registration Number and local VAT office: Number 5964492 85 (group
registration including Oxford Computer Group Limited and Oxford Computer
Applications Limited); VAT Office: Oxford.
16
DETAILS OF THE COMPANY AND THE SUBSIDIARIES
Part 2: The Subsidiaries of the Company
---------------------------------------
Name of Subsidiary: Online College Oxford Limited
Company Number: 3138907
Date and Place of Incorporation: 18 December 1995 in England and Wales
Share Capital: Authorised Allotted and Issued
---------- -------------------
(Pounds)100 divided into 100 2 ordinary shares of
shares of (Pounds)1 each (Pounds)1 each
Issued Shares held by:
Shareholder and Beneficial Owner Number of Shares
-------------------------------- ----------------
Oxford Computer Group Limited 2
Registered Office: Wolsey Hall
00 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Directors: Ian Xxxxxxx Xxxxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx Xxxxxxxx
Secretary: Ian Xxxxxxx Xxxxxxxxx Xxxxxxxxxx
Accounting Reference Date: 31 December
Auditors: Xxxx & Company
000 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Tax District and Reference Number: Oxford 1 District. Reference 184/49405/66652
AO1
VAT Registration Number and local VAT office: Not registered
17
DETAILS OF THE COMPANY AND THE SUBSIDIARIES
Part 2: The Subsidiaries of the Company
---------------------------------------
Name of Subsidiary: OCX Limited
Company Number: 2924953
Date and Place of Incorporation: 3 May 1994 in England and Wales
Share Capital: Authorised Allotted and Issued
---------- -------------------
(Pounds)100 divided into 100 100 ordinary shares of
shares of (Pounds)1 each (Pounds)1 each
Issued Shares held by:
Shareholder and Beneficial Owner Number of Shares
-------------------------------- ----------------
Oxford Computer Group Limited 100
Registered Office: Wolsey Hall
00 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Directors: Ian Xxxxxxx Xxxxxxxxx Xxxxxxxxxx
Xxxx Xxxxxxx-Xxxxx
Secretary: Ian Xxxxxxx Xxxxxxxxx Xxxxxxxxxx
Accounting Reference Date: 31 March
Auditors: Xxxx & Company
000 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Tax District and Reference Number: Oxford 1 District. Reference
184/27140/59299.
VAT Registration Number and local VAT office: Not registered.
18
DETAILS OF THE COMPANY AND THE SUBSIDIARIES
Part 2: The Subsidiaries of the Company
---------------------------------------
Name of Subsidiary: Oxford Computer Training Services Limited
Company Number: 2752224
Date and Place of Incorporation: 1 October 1992 in England and Wales
Share Capital: Authorised Allotted and Issued
---------- -------------------
(Pounds)100 divided into 100 100 ordinary shares of
shares of (Pounds)1 each (Pounds)1 each
Issued Shares held by:
Shareholder and Beneficial Owner Number of Shares
-------------------------------- ----------------
Oxford Computer Group Limited 100
Registered Office: Wolsey Hall
00 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Directors: Xxxx Xxxxxxx-Xxxxx
Xxx Xxxxxxx Xxxxxxxxx Xxxxxxxxxx
Secretary: Ian Xxxxxxx Xxxxxxxxx Xxxxxxxxxx
Accounting Reference Date: 31 March
Auditors: Xxxx & Company
000 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Tax District and Reference Number: Oxford 1 District. Reference 184/7095/PA.
VAT Registration Number and local VAT office: Not registered.
19
DETAILS OF THE COMPANY AND THE SUBSIDIARIES
Part 2: The Subsidiaries of the Company
---------------------------------------
Name of Subsidiary: OCG Limited
Company Number: 2924947
Date and Place of Incorporation: 3 May 1994 in England and Wales
Share Capital: Authorised Allotted and Issued
---------- -------------------
(Pounds)100 divided into 100 100 ordinary shares of
shares of (Pounds)1 each (Pounds)1 each
Issued Shares held by:
Shareholder and Beneficial Owner Number of Shares
--------------------------------- ----------------
Oxford Computer Group Limited 100
Registered Office: Wolsey Hall
00 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Directors: Ian Xxxxxxx Xxxxxxxxx Xxxxxxxxxx
Xxxx Xxxxxxx-Xxxxx
Secretary: Ian Xxxxxxx Xxxxxxxxx Xxxxxxxxxx
Accounting Reference Date: 31 March
Auditors: Xxxx & Company
000 Xxxxxxx Xxxx
Xxxxxx XX0 0XX
Tax District and Reference Number: Oxford 1 District. Reference 184/83303.
VAT Registration Number and local VAT office: Not registered.
20
SCHEDULE 2
----------
THE SELLERS
(1) (2) (3) (4)
Number of
Shares to Buyer's
Full Name Address be sold Shares
--------- ------- --------- -------
(1) Xxxxxx Xxxxxxxxxx 00 Xx 000 32,060
Margarets Road
Oxford
(2) Xxxxx Xxxxx Xxxxxxxx 00 Xxxx Xxxxxx 000 42,000
Kidlington
Oxford
(3) Xxxx Xxxxxxx-Xxxxx 00 Xxxxx Xxxx 739 103,460
Road
Oxford
(4) Ian Xxxxxxx Xxxxxxxxx Shepherds 475 66,500
Xxxxxxxxxx Xxxxxxx
00 Xxxxxxxxx
Xxxxxxxxxx
Oxford
(5) Xxxxxx Xxxxxx Xxxxxxx 51 Home Close 79 11,060
Xxxxxxxx Wolvercote
Oxford
(6) Xxxxx Xxxxx Xxxxxxxxxx 00 Xxxxxx Xxxx 65 9,100
Cowling Old Xxxxxxx
Oxford
(7) Xxxxxxx Xxxxxxx 00 Xxxxxx Xxx 65 9,100
Xxxxxxx
Village
Oxford
(8) Xxxxxxx Xxxxxxxx Xxx Avon Cliffe 14 1,960
Clay Coton
Northampton
(9) Xxxx Xxxxxx 00 XxxxXxxxx Xxx 00 1,960
Didcot
Oxon
(10) Xxxxx Xxxxxxx Fairview Cottage 20 2,800
Wilton
Marlborough
Wiltshire
----- -------
TOTAL 2,000 280,000
===== =======
21
SCHEDULE 3
----------
THE WARRANTIES
1. THE SHARES
----------
The Sellers are the beneficial owners and registered holders of all the
Shares and have full power and authority to sell and transfer the same to
the Buyer on the terms of this Agreement without the consent of any third
party.
2. CAPACITY OF THE SELLERS
-----------------------
2.1 Each Seller, by reason of his or her knowledge and experience in
financial and business matters, is capable of evaluating the risks and
merits of an investment in the Buyer's Shares. Each Seller recognises
that the Buyer's Shares are speculative and that investments in the
Buyer's Shares involves a high degree of risk. Each Seller is prepared to
bear the economic risk of an investment in the Buyer's Shares and is able
to withstand a total loss of his or her investment in the Buyer's Shares.
Each Seller acknowledges that the purchase of Buyer's Shares hereunder is
being made for his or her own account, for investment purposes only and
not with the present intention of distributing or reselling the Buyer's
Shares in whole or in part.
2.2 Each Seller further understands that the Buyer's Shares have not been
registered under the Securities Act, or under any state securities laws
by reason of specific exemptions therefrom, which depend upon, among
other things, the accuracy of the representations expressed in this
Agreement by the Sellers. Each Seller has had the opportunity to discuss
all aspects of this transaction with management of the Buyer, has made or
has had the opportunity to make such inspection of the books and records
of the Buyer as the Sellers have deemed necessary in connection with this
investment, and any questions asked have been answered to the
satisfaction of the Sellers.
2.3 Each Seller acknowledges that he will offer, sell or otherwise transfer
the Buyer's Shares, prior to the date which is one year after Completion
only (A) pursuant to a registration statement that has been declared
effective under the Securities Act, (B) pursuant to offers and sales that
occur outside the United States to a non-U.S. citizen within the meaning
of Regulation S under the Securities Act in a transaction meeting the
requirements of Rules 903 and 904 under the Securities Act, or (C)
pursuant to another available exemption from the registration
requirements of the Securities Act, subject to the Buyer's right prior to
any offer, sale or transfer pursuant to clause (B) or (C) to require the
delivery of an opinion of counsel, certificates and/or other information
reasonably satisfactory to the Buyer and that Buyer shall refuse to
register the transfer of any such shares on its books unless such
transfer complies with clause (A), (B) or (C).
2.4 Each Seller has the requisite power and authority to enter into and
perform this Agreement and the Supplemental Agreements, including but not
limited to the Tax Covenant, the Escrow Agreement and the other documents
executed by any Seller which are to be delivered at Completion.
2.5 Each Seller is either a Director or Manager of the Company as at
Completion, as such terms are used and defined in the Financial Services
Xxx 0000 and in the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) (No.2) Order 1995 (No. 1536).
2.6 Payment of any Seller's professional fees (including lawyers and
accountants) by the
22
Company in connection with this Agreement are in compliance with all
applicable laws (including, without limitation, applicable laws governing
financial assistance), and the amount of all such professional fees paid
by the Company shall not exceed thirty thousand pounds sterling
((Pounds)30,000), excluding Value Added Tax.
3. INFORMATION GIVEN TO BUYER
--------------------------
3.1 All information contained or referred to in the Disclosure Letter or any
documents accompanying it is true, complete and accurate in all respects.
3.2 All information given by the Sellers or their respective professional
advisers to the Buyer or its professional advisers relating to the
business, activities, affairs, assets and liabilities of the Company was
when given and now is true and accurate in all respects. There is no act
or matter which has not been disclosed to the Buyer or its professional
advisers which renders any such information untrue, inaccurate or
misleading or the disclosure of which might reasonably affect the
willingness of the Buyer to enter into this Agreement.
4. CORPORATE MATTERS
-----------------
4.1 The Shares are fully paid and constitute the whole of the issued and
allotted share capital of the Company.
4.2 The Company has complied in all respects with all provisions and
requirements of the Companies Acts and all returns, particulars,
resolutions and other documents, required to be delivered to the
Companies Registry have been properly made and delivered.
4.3 The register of members and other statutory books of the Company have
been properly kept and are complete and up to date.
4.4 Sections 4.1 through 4.4 are true and accurate for all Subsidiaries of
the Company.
5. ACCOUNTS
--------
5.1 All accounts, books, ledgers, financial and other records of the Company
are in its possession and have been fully and accurately maintained and
give a true, complete and fair view of its financial position.
5.2 The Last Accounts:
(a) comply with the provisions of the Companies Acts and other relevant
statutes;
(b) comply with all current SSAPs applicable to a United Kingdom
company;
(c) properly reflect the financial position of the Company at the Last
Accounts Date; and
(d) give a true and fair view of the assets and liabilities of the
Company at the Last Accounts Date and its profits for the financial
period ended on that date.
23
6. TRADING
-------
6.1 Since the Last Accounts Date:
(a) the business of the Company has been continued in the ordinary
course;
(b) there has been no deterioration in the turnover or the financial or
trading position or prospects of the Company;
(c) no capital commitments have been entered into by or on behalf of the
Company; and
(d) the Company has paid its creditors in accordance with their
respective terms.
6.2 The Disclosure Letter contains particulars of all material contracts and
engagements, whether written or oral, to which the Company is a party at
the date of this Agreement.
6.3 The Company has not manufactured, sold or supplied products or services
which are or were or will become in any material respect faulty or
defective, or which were negligent, or which do not comply in any respect
with all specifications, warranties and representations, express or
implied, made in relation to them, or with all applicable regulations,
standards and requirements.
6.4 The Company is not liable (save as may be implied by law) to service,
repair, maintain, take back or otherwise do anything in respect of any
goods or services that have been delivered by it.
6.5 No major customer of the Company has ceased to be a customer since the
Last Accounts Date; so far as the Sellers are aware, no such customer
intends to cease to be a customer of the Company or substantially reduce
its existing level of business with it.
6.6 In the conduct of its business, the Company does not infringe any
proprietary right or interest of any other person, and is not liable to
pay any royalty or similar sum, which is material in the context of the
Company's business.
6.7 The Company has not entered into any transaction in which the Sellers,
the directors or managers of the Company or any of their Associates, was
interested, directly or indirectly.
6.8 The Disclosure Letter contains full details of all grants made to the
Company by any governmental department or authority or similar body, the
Company has no liability to repay any such grant and no circumstances
have arisen under which any such body could require repayment.
6.9 The Disclosure Letter contains particulars of all Intellectual Property
of the Company at the date of this Agreement including without limitation
any Intellectual Property licensed to the Company by third parties and
licensed by the Company to any third parties.
6.10 The Company owns or has the right to use all Intellectual Property
necessary for the continuation of the business of the Company as at the
date of Completion.
7. ASSETS
------
24
7.1 The Company owned at the Last Accounts Date and still owns, and had and
still has a good and marketable title to, all assets included in the Last
Accounts or acquired since that date, except current assets since sold or
realised in the ordinary course of business.
7.2 The assets (including the Intellectual Property) owned by the Company,
together with the assets held under hire purchase leasing or rental
agreements, comprise all the assets, property and rights which are
necessary for the continuation of the business of the Company as now
conducted.
7.3 All book debts owed to the Company comprised in the Last Accounts were,
and all such book debts as at Completion will be, collected in full in
the ordinary course of business (that is, not more than 6 weeks after the
date the debt was incurred).
8. FINANCE
-------
There are no overdrafts, loans and other financial facilities outstanding
or available to the Company.
9. THE COMPANY'S OFFICERS AND EMPLOYEES
------------------------------------
9.1 The Disclosure Letter contains true, complete and accurate particulars of
all employees of the Company.
9.2 The Company has complied with all statutory and other regulations and
obligations in relation to its employees and former employees.
9.3 The Company is not a party to any bonus, profit-sharing or collective
bargaining arrangement or agreement with employees or a trades union or
similar association.
9.4 The Company has paid up to date all remuneration, pension contributions
and other payments due from it in respect of all employees.
9.5 No officer or employee of the Company is under notice to leave his
employment, given by him or the Company.
10. PENSION SCHEMES
---------------
10.1 The Company has no obligations (whether legally enforceable or not) to
provide any life assurance, retirement, redundancy, termination, pension,
death, health or disability benefit or payment to a director or employee
or former director or employee or consultant of the Company or any spouse
or dependant or any such person.
10.2 For the purposes of the following warranties (a) - (k) "the Pension
Scheme" means both of the Individual Pension Plan for X. Xxxxxxx Plan
Number IPP0003081 and the OCG 1993 Pension Scheme Policy Number Q0031 or
such one of those schemes as the context requires.
(a) Save for the Pension Scheme, neither the Company nor any Subsidiary of
the Company is under any legal or moral liability or obligation, or a
party to any ex gratia arrangement or promise whether written or verbal,
to pay pensions, gratuities, superannuation allowances or the like, or
otherwise to provide "relevant benefits" within the meaning of Section
612(1) ICTA to or for any of its past or present officers or employees or
their dependants; and there are not now nor have there at any time
25
been any retirement benefit, or pension or death benefit, or similar
schemes or arrangements in relation to or binding on the Company and/or
any of its Subsidiaries or to which any of them contributes nor have
there been any announcements as to the introduction of any such scheme or
arrangement.
(b) Full particulars of the Pension Scheme, including particulars of benefits
provided and the basis on which the employer and the employees make or
are liable to make contributions thereto, and the most recent financial
information statements and full and accurate details of the assets and
current membership are contained in or annexed to the Disclosure Letter,
and the Sellers warrant that the Pension Scheme is solely governed by the
deeds and documents, copies of which have been supplied to the Buyer and
are listed in the Disclosure Letter.
(c) The Pension Scheme is approved under Chapter 1 of Part XIV of ICTA as an
exempt approved scheme and so far as the Sellers are aware nothing has
been done or omitted to be done which will or is likely to result in the
Pension Scheme ceasing to be approved or capable of approval as an exempt
approved scheme.
(d) In relation to the OCG 1993 Pension Scheme a contracting-out certificate
(within the meaning of Section 30 of the Social Security Pensions Act
1975) is in force covering the employments of all employees who are
members of the Pension Scheme and so far as the Sellers are aware there
is no ground on which it could be cancelled.
(e) The Pension Scheme has been administered at all times in accordance with
governing documentation and all applicable legislative and regulatory
requirements including without prejudice to the generality of the
foregoing the equal access requirements arising under or as a result of
Article 119 of the Treaty of Rome and Sections 62-66 of the Pensions Act
1995 and subject thereto in accordance with the trusts powers and
provisions of the Pension Scheme.
(f) All lump sum death benefits which may be payable under the Pension Scheme
are fully insured at normal rates with an insurance company of good
repute and the Sellers are not aware of any grounds on which such
insurance might be withdrawn or avoided.
(g) All contributions (including expenses) and premiums which have fallen due
at Completion in respect of members of the Pension Scheme by the Company
or any of the Company's Subsidiaries participating in the Pension Scheme
have been paid.
(h) Other than routine claims for benefits no claim has been made or
threatened against the trustees of the Pension Scheme or any of them or
the Sellers or the Company or any person whom the Sellers are or may be
liable to indemnify or compensate in respect of any act, event, omission
or other matter in respect of the members arising out of or in connection
with the Pension Scheme and the Sellers are not aware of any
circumstances which might give rise to any such claim.
(i) No undertakings or assurances whether verbal or written or legally
binding or otherwise have been given to all or any of past or present
officers or employees of the Company or of the Company's Subsidiaries as
to the continuance of the Pension Scheme, nor the introduction, increase,
variation, augmentation or improvement of any pension rights,
entitlements, disability or death benefits under the Pension Scheme.
(j) The benefits under the Pension Scheme are exclusively money purchase
benefits as defined in Section 181 of the Xxxxxxx Xxxxxxx Xxx 0000.
26
(k) The assets of the Pension Scheme are invested exclusively in policies of
insurance with an insurance company of good repute.
11. INSURANCE
---------
11.1 The Company is and has at all material times been adequately insured
against all such risks prudently or usually covered by companies carrying
on similar businesses.
11.2 The Company's insurances are all valid and in force, nothing has been
done or omitted which might invalidate them, and all premiums have been
paid up to date.
12. LEGAL PROCEEDINGS
-----------------
The Company is not engaged in, or has not threatened to commence or been
threatened with any litigation, prosecution, arbitration or other legal
proceedings, any tribunal, enquiry or commission proceedings, or any
industrial dispute and there are no circumstances which might give rise
to the same.
13. INSOLVENCY
----------
No order has been made or resolution passed to wind up the Company; there
is no outstanding petition to wind up the Company, or appoint an
administrator or receiver of all or any part of its undertaking or
assets.
14. TAXATION
--------
14.1 The Company has deducted and accounted to the Inland Revenue for all
Taxation required to be deducted and accounted for by it under the
Taxation Statutes.
14.2 The Company has paid all Taxation up to date due to be paid to any fiscal
authorities.
14.3 The Company has made in proper time all returns and payments required for
all Taxation purposes and accurately maintained and kept all records and
other documents required by the Taxation Statutes.
15. PROPERTY
--------
15.1 The Company does not own or occupy any land and buildings other than the
Property.
15.2 The Company has a good and marketable title to the Property.
15.3 No person other than the Company is in occupation of or in receipt of any
rents or profits from the Property.
15.4 The Property is free from any mortgage, debenture, charge, rent-charge,
lien or other encumbrance.
15.5 The Property is not subject to any restrictive covenants, stipulations,
easements or other rights vested in third parties.
15.6 The Company's use of the Property is that which is permitted under the
Planning Acts.
15.7 The Company has complied with all applicable statutory and bye law
requirements and
27
all requirements of any competent authority and all provisions of the
Planning Acts in respect of the Property.
15.8 The Company has paid the rent and observed and performed all the
covenants under the terms of any lease or licence under which the Company
holds or occupies the Property and no rent reviews are currently in
progress affecting the Property.
15.9 Throughout the period of the Company's ownership and/or operation of its
business at the Property, the Company has complied in all respects with
all Environmental Laws in force at the relevant time. To the best of the
Sellers' knowledge and belief, throughout the period of ownership and/or
operation of a business at the Property by any third party prior to the
Company, all such third parties have complied in all respects with all
Environmental Laws in force at the relevant time.
15.10 Neither the Company nor (to the best of the Sellers' knowledge and
belief) any previous owner, lessee, licensee or occupier of the Property
has at any time received notice from any person alleging breach by the
Company or any such previous owner, lessee, licensee or occupier of any
Environmental Laws.
15.11 All leases of Property are leases from the bona fide landlord of such
Property.
15.12 The Company is not subject to any material covenants to repair or
reinstate any Property upon termination of any leasehold.
16. GENERAL
-------
Each Seller acknowledges that the Buyer and others will rely upon the
truth and accuracy of the foregoing representations, Warranties and
agreements and agrees that, if any of the representations, Warranties and
agreements made by such Seller are no longer accurate, it shall promptly
notify the Buyer.
28
SCHEDULE 4
----------
THE PROPERTY
Upper Ground Floor Premises
00 Xxxxxxx Xxxx
Xxxxxx
Rooms on First Floor of the annex to Wolsey Hall
Oxford
Premises on Xxxxx Xxxxxx Xxxxx xx 00 Xxxxxxx Xxxx
Oxford
Unit 4202
The Waterside Centre
Birmingham Business Park
Xxxx 0000
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxxxx Xxxx
Xxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxx
0xx Xxxxx Premises
Finsbury House
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0
0xx Floor Premises
Finsbury House
aforesaid
Xxxx X0
Xxx Xxxxxx
Xxxxxx Xxxxxxxx Xxxx
Cowly
Oxford
29
SCHEDULE 5
----------
CONDITIONS PRECEDENT TO COMPLETION
1. The Sellers will deliver to the Buyer's Solicitors:-
(a) duly executed transfers of the Shares in favour of the Buyer or as it
directs;
(b) the certificates for the Shares;
(c) the Tax Covenant duly executed by the Indemnifying Sellers, the
Company and the Subsidiaries of the Company;
(d) the resignation from office of each Director and secretary of the
Company and each of its Subsidiaries (except those whom the Buyer has
notified to the Sellers in writing prior to the date of Completion
that it wishes to continue in office) with a written acknowledgement
under seal from each of them, in such form as the Buyer requires, that
he has no outstanding claim against the Company or any Subsidiary of
the Company;
(e) if requested by the Buyer, the resignation of the auditors to the
Company and each of its Subsidiaries confirming that they have no
outstanding claims of any kind against the Company or any of its
Subsidiaries and containing a statement complying with Section 394(1)
CA 1985;
(f) service agreements in the form to be agreed between the Company and
each of Xxxx Xxxxxxx-Xxxxx, Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx, Xxxxx
Xxxxx Xxxxxxxxxx Xxxxxxx and Xxxxxxx Xxxxxxx duly executed by each
such individual;
(g) the Escrow Agreement duly executed by the Indemnifying Sellers, the
Company and the Escrow Agent;
(h) Buyer's Share certificates representing the Indemnifying Shareholders'
pro rata portion of the Escrowed Shares;
(i) third party consents to any assignments to the Buyer of any contracts
to which the Company or any of its Subsidiaries is party, where
required by the terms thereof;
(j) written confirmation from the Inland Revenue in the United Kingdom
under (i) section 138 TCGA that section 137 of TCGA will not prevent
section 135 of TCGA from applying to the transaction contemplated by
this Agreement; and (ii) section 707 ICTA that no notice under section
703 of ICTA will be issued in relation to the transaction contemplated
by this Agreement;
(k) written approval from the Inland Revenue to the transfer of all of the
assets of the Subsidiaries to the Company and for the transfer of any
and all minority interests in the Subsidiaries to the Company prior to
Completion;
(l) copies of the Buyer's Stock Subscription Agreement signed by each of
the Sellers and the signed agreement of each Seller to be bound by the
terms of the Buyer's Shareholders' Agreement;
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(m) any and all other Supplemental Agreements required to be executed by
the Sellers, the Subsidiaries and/or the Company; and
(n) an updated Disclosure Letter in a form acceptable to the Buyer.
2. The Sellers will procure delivery of the following to the Buyer or as it
may direct:-
(a) the certificate of incorporation, statutory books (duly made up to
Completion) and common seal of the Company and each of the
Subsidiaries of the Company;
(b) the title deeds relating to the Property;
(c) all books of account and documents of record and all other documents
in the possession or control of the Sellers in connection with the
Company and each of the Subsidiaries of the Company, all complete and
up to date;
(d) bank statements of all bank accounts of the Company and each of the
Subsidiaries of the Company to a date not more than two days before
Completion, and reconciliation statements in respect of each such
account up to Completion; and
(e) releases or certificates of non-crystallisation in the form required
by the Buyer of all mortgages or charges affecting the Company and any
of the Subsidiaries of the Company, except as agreed in writing before
execution of this Agreement.
3. Each of the Sellers will and will procure that his Associates will, repay
all monies owing by them to the Company or any of the Subsidiaries of the
Company.
4. The Sellers will hold a Board Meeting of the Company and each of the
Subsidiaries of the Company at which the Directors will:-
(a) register the transfers of the Shares to the Buyer (subject to
stamping);
(b) appoint such persons as the Buyer shall nominate as directors and/or
secretary;
(c) accept the resignations referred to above;
(d) accept if required by the Buyer the resignation of the Auditors and
appoint Price Waterhouse as auditors of the Company and each of the
Subsidiaries of the Company;
(e) approve and authorise for execution service agreements in the agreed
form relating to Xxxx Xxxxxxx-Xxxxx, Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx,
Xxxxx Xxxxx Xxxxxxxxxx Cowling and Xxxxxxx Xxxxxxx ;
(f) replace all current mandates to bankers with new mandates required by
the Buyer;
(g) approve and complete the transfer of all of the assets of all
Subsidiaries operations into the Company; and
(h) approve and authorise the discontinuation of the directors' pension
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arrangements.
5. The Buyer will procure:
(a) delivery to the Sellers of a counterpart of the Tax Covenant and the
Escrow Agreement duly executed by the Buyer;
(b) delivery to Xxxx Xxxxxxx-Xxxxx, Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx, Xxxxx
Xxxxx Xxxxxxxxxx Xxxxxxx and Xxxxxxx Xxxxxxx counterparts of the
service agreements duly executed by the Company;
(c) payment of any prepaid rents paid by any Seller for any of the
Company's leased Property;
(d) the removal of any personal guarantees of any Seller securing any bank
or other indebtedness of the Company; and
(e) delivery to the Sellers of any and all Supplemental Agreements
required to be executed by the Buyer.
6. The Buyer and the Sellers shall have executed and delivered a registration
rights agreement in the form to be agreed, providing, inter alia, Ian
----- ----
Xxxxxxx Xxxxxxxxx Xxxxxxxxxx'x right to register up to twenty percent (20%)
of his shares in an over-allotment position in the event of an Initial
Public Offering and providing all Sellers' "piggyback" registration rights
to sell Buyer's Shares in any secondary or follow-on offering, on terms and
conditions to be agreed among the parties, which shall not be less
favourable than terms that may be offered by the Buyer to its other
shareholders.
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