EX43
EXHIBIT 4.3
DATED 1998
SHARE ACQUISITION AGREEMENT
TERRAFIRMA DESIGNS LIMITED (1)
PAREXEL INTERNATIONAL CORPORATION (2)
000 XXXXXX, XXXXXX XX0X 0XX
TEL: 0000 000 0000 FAX: 0000 000 0000
Ref: RWE/0653436.01
CONTENTS
No Heading Page
1. DEFINITIONS 1
3. THE SHARES 7
4. REPAYMENT BY VENDOR AND THE COMPANY 7
5. COMPLETION 8
8. COMPLIANCE WITH US LAW 9
9. RESTRICTIVE COVENANTS 11
11. GENERAL PROVISIONS 12
12. ANNOUNCEMENTS 13
13. COSTS 13
14. NOTICES 13
15. GOVERNING LAW AND JURISDICTION 14
THE FIRST SCHEDULE: PARTICULARS OF THE VENDOR 15
THE SECOND SCHEDULE: BASIC INFORMATION CONCERNING THE XXXXXXX00
THIS AGREEMENT is made the day of
1998
BETWEEN:
(1) THE PERSON whose name and address is set out in Column (1)
of the First Schedule hereto ("the Vendor") and
(2) PAREXEL INTERNATIONAL CORPORATION (whose principal place
of business is at 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx
00000, XXX ("the Purchaser")
WHEREAS
(A) Creative Communication Solutions Limited ("the Company")
has an authorised and issued share capital particulars
whereof together with other details are set out in the
Second Schedule hereto.
(B) The Vendor is the beneficial owner of or is otherwise able
to procure the transfer of the numbers of shares of the
Company specified in Column (2) of the First Schedule
hereto opposite its name such numbers of shares together
comprising ten per cent of the issued and allotted shares
of the Company.
(C) The Vendor is desirous of selling and the Purchaser is
willing to acquire the Shares (as hereinafter defined) on
the terms and subject to the conditions hereinafter
contained.
NOW IT IS HEREBY AGREED as follows:-
1. DEFINITIONS
1.1 In this Agreement and the Schedules hereto the following
expressions shall unless the context otherwise requires
have the meanings following:-
"Accredited Investor" a bank (as defined in Section
3(a)(2) of the Securities Act of
1933, as amended (the 'Act')) or a
savings and loan association or
other institution (as defined in
Section 3(a)(5)(A) of the Act),
whether acting in regard to this
investment in its individual or a
fiduciary capacity;
a broker or dealer registered
pursuant to Section 15 of the
United States Securities Exchange
Act of 1934, as amended;
an insurance company (as defined in
Section 2(13) of the Act);
an investment company registered
under the United States Investment
Company Act of 1940, as amended;
a business development company (as
defined in Section 2(a)(48) of the
Investment Company Act of 1940, as
amended;
a Small Business Development
Company licensed by the United
States Small Business
Administration under Section
301(c) or (d) of the United States
Small Business Investment Act of
1958, as amended;
a plan established and maintained
by a United States state, its
political subdivision, or any
agency or instrumentality of a
United States state or its
political subdivisions, for the
benefit of its employees, if the
plan has total assets in excess of
$5,000,000;
an employee benefit plan (an "ERISA
Plan") within the meaning of Title
1 of the United States Employee
Retirement Income Security Act of
1974, as amended ("ERISA") whose
decision to purchase the interest
in the Purchaser was made by a plan
fiduciary (as defined in Section
3(21) of ERISA), which is either a
bank, savings and loan association,
insurance company or registered
investment adviser;
an ERISA Plan with total assets in
excess of $5,000,000 or, if a self-
directed ERISA Plan, with
investment decisions made solely by
persons that are "accredited
investors";
a private business development
company (as defined in Section
202(a)(22) of the United States
Investment Advisors Act of 1940, as
amended);
an organisation described in
Section 501(c)(3) of the United
States Internal Revenue Code of
1986, as amended, corporation,
Massachusetts or similar business
trust, or partnership, not formed
for the specific purpose of holding
the Shares of the Company or
acquiring the Consideration Shares,
with total assets in excess of
$5,000,000;
a natural person whose net worth
(either individually or jointly
with such person's spouse) at the
time of Completion exceeds
$1,000,000;
a natural person who had an
individual income in excess of
$200,000 or joint income with such
person's spouse in excess of
$300,000 in each of the last two
calendar years and who reasonably
expects to reach the same income
level in the current calendar year;
a trust, with total assets in
excess of $5,000,000, not formed
for the specific purpose of holding
the Shares of the Company or
acquiring the Consideration Shares,
whose purchase of the Consideration
Shares is directed by a
sophisticated person as described
in Rule 506(b)(2)(ii) under the
Act;
an entity in which all of the
equity owners fit into at least one
of the categories listed above;
"Associate" any person or company who is a
connected person as that expression
is defined by Section 839 of the
ICTA;
"Business day" a day on which banks shall be open
in London for the conduct of
general banking business (excluding
Saturdays);
"the Consideration Shares" 26,583 Common Stock of
US$0.01 each of the Purchaser
(ranking pari passu with the Common
Stock of the Purchaser in issue at
Completion and credited as fully
paid);
"Completion" completion of the obligations of
the parties hereunder in accordance
with the provisions of Clause 4
hereof;
"Encumbrance" includes any interest or equity of
any person (including, without
prejudice to the generality of the
foregoing, any right to acquire,
option or right of pre-emption), or
any mortgage, charge, pledge, lien,
assignment, hypothecation, security
interest, title retention or any
other security agreement or
arrangement;
"Nasdaq" National Association of Securities
Dealers, Inc.Automated Quotation
System;
"the Purchaser's Solicitors" Xxxxxxxx Xxxxxx;
"Registration Rights
Agreement" agreement in the approved terms
between certain of the parties
hereto to be entered into at
Completion attached as appendix B
hereto;
"SEC" the United States Securities and
Exchange Commission;
"the Service Agreement"the existing agreement (as amended)
between the Company and Xxxxx
Xxxxxxxxxx to be entered into at
Completion attached as appendix A
hereto;
"the Shares" the shares of the Company specified
in Column (2) of the First Schedule
hereto;
"Vendor Representative"means any person who satisfies all
of the following conditions
(a) is not an affiliate,
director, officer or other
employee of the Purchaser or
beneficial owner of 10% or
more of any class of the
equity securities or 10% or
more of the equity interest of
the Purchaser'
(b) has such knowledge and
experience in financial and
business matters that he is
capable of evaluating, alone
or together with other Vendor
Representatives of the Vendor,
or together with the Vendor,
the merits and risks of the
prospective investment in
Purchaser;
(c) is acknowledged by the
Vendor in writing, during the
course of the transaction, to
be his Vendor Representative
in connection with evaluating
the merits and risks of the
prospective investment in the
Purchaser; and
(d) discloses to the Vendor
in writing a reasonable time
prior to the sale of
securities of the Purchaser to
that Vendor any material
relationship between himself
or his affiliates and the
Purchaser that then exists,
that is mutually understood to
be contemplated, or that has
existed at any time during the
previous two years, and any
compensation received or to be
received as a result of such
relationship.
"the Vendor' Solicitors" Xxxxxx Xxxxx Xxxxxxx
Xxxxxx;
1.2 References to the consequences of acts or transactions
effected prior to Completion shall include the combined
effect of two or more acts or transactions the first of
which shall have taken place or be deemed to have taken
place on or before the date of Completion. Reference to
the result of Events on or before Completion shall include
the combined result of two or more Events the first of
which shall have taken place or is deemed to have taken
place on or before Completion.
1.3 The expression "the Vendor" includes any personal
representatives.
1.4 Any document expressed to be "in the approved terms" means
in a form approved and for the purpose of identification
signed by or on behalf of the parties hereto.
1.5 References to Clauses, Sub-clauses and Schedules are
references to Clauses and Sub-clauses of this Agreement
and Schedules to this Agreement.
1.6 In this Agreement and the Schedules hereto the masculine
gender shall include the feminine and neuter, the singular
number shall include the plural and vice versa, and
references to persons shall include bodies corporate,
unincorporated associations and partnerships.
1.7 In this Agreement words and phrases the definition of
which is contained or referred to in Part XXVI of the
Companies Xxx 0000 shall be construed as defined therein.
1.8 References in this Agreement to any statute or statutory
provision shall include (except where the context
otherwise requires) any statute or statutory provision
which amends extends consolidates or replaces the same and
any statute or statutory provision which has been amended,
extended, consolidated or replaced by the same and shall
include any order, regulation, instrument or other
subordinate legislation made under the relevant statute or
statutory provision except where and to the extent that
any liability of the Vendor under this Agreement would be
created or extended as a result of any amendment,
extension, consolidation or replacement of any statute or
statutory provision in force at Completion.
1.9 The headings in this Agreement are inserted for
convenience only and shall not affect the construction
hereof.
2. THE SHARES
2.1 The Vendor shall sell and the Purchaser shall acquire with
effect from Completion the Shares free from any
Encumbrance and together with all accrued benefits and
rights for the consideration described in sub-clause 2.2
below ("the Consideration").
2.2 The Consideration shall be satisfied by the allotment and
issue to the Vendor of the Consideration Shares.
3. REPAYMENT BY VENDOR AND THE COMPANY
3.1 The Vendor will prior to or simultaneously with Completion
repay to the Company any sums due by the Vendor, any
Associate of the Vendor or any of them (or by any person
to whom they or any of them are or is a trustee or
personal representative) to the Company at Completion and
shall at Completion procure that neither they nor any such
person as aforesaid has any claim or right of action
against the Company (other than in respect of current
remuneration as directors or executives) and that the
Company is not in any way obliged or indebted (other than
as aforesaid) to them or any such person and at Completion
the Vendor will confirm in writing to the Purchaser that
it has so procured.
4. COMPLETION
4.1 Completion shall take place on March 1, 1998 at the
offices of the Purchaser's Solicitors or such other
offices as the parties may subsequently agree when:-
4.1.1 the Vendor shall deliver or cause to be delivered
to the Purchaser:-
(a) duly executed transfers together with the
relative share certificates in respect of the
Shares;
(b) written confirmation pursuant to Clause 3; and
4.1.2 Subject to the performance by the Vendor of their
obligations in accordance with the foregoing
provisions of this Clause 4 the Purchaser shall
allot to the Vendor the Consideration Shares and
deliver the relative documents of title; and
4.1.3 each of the parties will enter into the
Registration Rights Agreement.
4.2 If in any respect the provisions of sub-clauses 4.1.1,
4.1.2 and 4.1.3 are not complied with on the date for
Completion set by clause 4.1 the Purchaser may:-
4.2.1 defer Completion to a date not more than 28 days
after the date set out above (and so that the
provisions of this sub-clause shall apply to
Completion as so deferred); or
4.2.2 proceed to Completion so far as practicable
(without prejudice to its rights hereunder); or
4.2.3 rescind this Agreement.
4.3 If in any respect the provisions of sub-clause 4.1.4 are
not complied with on the date for Completion set by Clause
4.1, the Vendor may:-
4.3.1 defer Completion to a date not more than 28 days
after the date set out above (and so that the
provisions of this sub-clause shall apply to
Completion as so deferred); or
4.3.2 proceed to Completion so far as practicable
(without prejudice to its rights hereunder); or
4.3.3 rescind this Agreement.
5. COMPLIANCE WITH US LAW
The Vendor:
5.1 warrants and represents to the Purchaser that the Vendor:-
5.1.1 is acquiring the Consideration Shares for his own
account and not on behalf of any other person, and
the Vendor is acquiring the Consideration Shares
for investment purposes and not with a view towards
distribution and has no present arrangement to sell
the Consideration Shares;
5.1.2 is not an officer or director of any affiliate of
the Purchaser or any of its affiliates;
5.1.3 was not organised for the specific purpose of
holding or acquiring the Consideration Shares (if
the Vendor is a corporation, trust, partnership or
other organisation).
5.1.4 is an Accredited Investor or had, immediately prior
to receipt of any information regarding the
Purchaser, such knowledge and experience (alone or
with the Vendor's Vendor Representative, if any) in
financial and business matters as to be able to
evaluate the merits and risks of an investment in
the Purchaser.
5.1.5 is able now, and was able prior to receipt of any
information regarding the Purchaser, to bear the
economic risks of an investment in the Company and
the Purchaser.
5.2 acknowledges and agrees that the Consideration Shares have
not been registered under United States Securities Act of
1933, as amended ("the Act"), and may not be offered or
sold unless the Consideration Shares are registered under
the Act or an exemption from the registration requirements
of the Act is available;
5.3 acknowledges that the Consideration Shares are being
offered and sold to him in reliance on specific exemptions
from the registration requirements of the United States
Federal and State securities laws and that the Purchaser
is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgements
and understandings of the Vendor set forth herein in order
to determine the applicability of such exemptions and the
suitability of Vendor to acquire the Consideration
Shares;
5.4 acknowledges that it is his responsibility to satisfy
himself as to the full observance by this transaction and
the sale of the Consideration Shares to him of the laws of
any jurisdiction outside the United States and that he has
done so;
5.5 acknowledges that in view of the United States Securities
and Exchange Commission, the statutory basis for the
exemption claimed for the transactions would not be
present if the offer and sale of the Consideration Shares
to the Vendor is part of a plan or scheme to evade the
registration provisions of the Act and the Vendor confirms
that this transaction is not part of any such plan or
scheme;
5.6 has received and carefully reviewed (and/or the Vendor's
Vendor Representative, if any, has received and carefully
reviewed) the PPS Transaction Summary, Prospectus dated
January 27, 1998, Annual Report on Form 10-K for the
fiscal year ended June 30, 1997, Quarterly Report on Form
10-Q for the quarter ended September 30, 1997 and December
31, 1997, Current Reports on Form 8-K dated October 23,
1997 and January 27, 1998, 1997 Annual Report to
Stockholders; and Proxy Statement dated October 8, 1997
and the Vendor and Vendor's Vendor Representative, if any
have had a reasonable opportunity to ask questions of and
receive answers from the Purchaser concerning the
Purchaser, and to obtain any additional information
reasonably necessary to verify the accuracy of the
information furnished to the Vendor concerning the
Purchaser and all such questions, if any, have been
answered to the full satisfaction of the Vendor.
5.7 acknowledges that no representations or warranties have
been made to him by the Purchaser or any agent, employee
or affiliate of the Purchaser and in entering into this
transaction the Vendor is not relying upon any
information, other than that contained in this Agreement,
and the results of independent investigations by the
Vendor;
5.8 has not sold, exchanged, transferred, pledged, disposed or
otherwise reduced his risk relative to the Consideration
Shares during the 30 day period preceding the date hereof;
5.9 acknowledges and agrees that this transaction is intended
to be accounted for as a pooling of interests for
financial accounting purposes, and in that regard the
Vendor hereby agrees with the Purchaser that the Vendor
will not sell, exchange, transfer, pledge, dispose or
otherwise reduce his risk in relation to the Consideration
Shares during the period which begins on the date hereof
and ends at such time as the Purchaser publicly announces
financial results covering at least thirty days of post-
Completion combined operations of the Purchaser and the
Company (the "Pooling Lock-up Period") and the Purchaser
at its discretion, may cause stop transfer orders to be
placed with its transfer agent with respect to the
Consideration Shares during the Pooling Lock-up Period;
5.10 acknowledges and agrees that all offers and sales of the
Consideration Shares shall only be made in compliance with
(i) the Pooling Lock-up Period and (ii) the Purchaser's
xxxxxxx xxxxxxx and black out period policies, as from
time to time in effect and (iii) pursuant to an effective
registration statement under the Act or pursuant to an
exemption from registration under the Act.
6. RESTRICTIVE COVENANTS
6.1 For the purpose of assuring to the Purchaser the full
benefit of the businesses and goodwill of the Company
Xxxxx Xxxxxxxxxx hereby undertakes by way of further
consideration for the obligations of the Purchaser under
this agreement as separate and independent agreements
that:-
6.1.1 he will not at any time after Completion disclose
to any person or himself use for any purpose and
shall use his best endeavours to prevent the
publication or disclosure of, any information
concerning the confidential business, accounts or
finances of the Company or any of its clients or
customers transactions or affairs, which may, or
may have, come to his knowledge;
6.1.2 for a period of 2 years after Completion he will
not except as hereinafter mentioned either on his
own account or in conjunction with or on behalf of
any person firm or company carry on or be engaged
concerned or interested in any trade or business
conducted in or from the United States of America
and any country within the European Union which is
similar to or competitive with any trade or
business carried on by the Company within the
period of two years prior to the date of
Completion;
6.1.3 for a period of 2 years after Completion he will
not (save with the prior written consent of the
Purchaser) either on his own account or in
conjunction with or on behalf of any other person
firm or company directly or indirectly:
(a) solicit or entice away from the Company or
employ any officer manager or servant whether
or not such person would commit a breach of his
contract of employment by reason of leaving the
service of the Company; nor
(b) solicit or accept the custom of any person firm
or corporation which during the two years prior
to the date of Completion shall have been a
customer of the Company.
Provided that nothing in this sub-clause shall preclude or
inhibit any person named in sub-clause 6.1 above from
carrying out his duties pursuant to a service agreement or
contract of employment between himself and the Company.
6.2 The restrictions contained in sub-clause 6.1 are
considered reasonable by the parties but in the event that
any such restriction shall be found to be void but would
be valid if some part thereof were deleted or the period
or area of application reduced such restriction shall
apply with such modification as may be necessary to make
it valid and effective.
7. GENERAL PROVISIONS
7.1 The Vendor shall (and shall procure that any other
necessary party shall) execute and do all such documents
acts and things as may be reasonably required by the
Purchaser for securing to or vesting in the Purchaser the
legal and beneficial ownership of the Shares forthwith
upon Completion in accordance with the terms and
conditions of this Agreement.
7.2 The Purchaser shall (and shall procure that any other
necessary party shall) execute and do all such documents
acts and things as may be reasonably required by the
Vendor for securing to or vesting in the Vendor the legal
and beneficial ownership of the Consideration Shares
forthwith upon Completion in accordance with the terms and
conditions of this Agreement.
7.3 This Agreement shall not be assignable by any party hereto
without the prior written consent of the others save by
the Purchaser to any affiliate of the Purchaser to which
the Shares shall be transferred but notwithstanding any
such transfer the Purchaser shall remain bound by the
obligations contained in this Agreement
7.4 If the benefit of this Agreement is assigned, the
liability of the Vendor shall be no greater than it would
have been if the Purchaser had remained the owners of the
Shares.
7.5 This Agreement (together with any document annexed hereto
and signed by or on behalf of the parties hereto)
constitutes the whole Agreement between the parties hereto
and no variations hereof shall be effective unless made in
writing.
7.6 The provisions of this Agreement in so far as the same
shall not have been performed at Completion shall remain
in full force and effect.
7.7 Any right of rescission conferred upon either party hereby
shall be in addition to and without prejudice to all other
rights and remedies available to it and no exercise or
failure to exercise such a right of rescission shall
constitute a waiver by that party of any such other right
or remedy.
7.8 None of the provisions of this Agreement which are
relevant restrictions as that term is defined by the
Restrictive Trade Practices Act 1976 shall come into
effect until the day following the day on which full
particulars of this Agreement have been furnished to the
Office of Fair Trading in accordance with the said Act.
8. ANNOUNCEMENTS
No party to this Agreement shall make any statement or
announcement in connection with this transaction except
with the prior approval of the other party save as may be
required by law or save to the extent necessary to comply
with the requirements of the SEC or Nasdaq. A party to
this Agreement who makes a statement or announcement
necessary to comply with the requirements of the SEC or
Nasdaq shall use its reasonable endeavours to consult with
the other parties before making that statement or
announcement.
9. COSTS
Each party to this Agreement shall pay its own costs of
and incidental to this Agreement and the sale and purchase
hereby agreed to be made.
10. NOTICES
Any notice required to be given by any party hereto to any
other shall be in writing and may be served personally or
by post or by facsimile and if served by post shall be
served by prepaid registered letter sent through the post
(airmail if overseas) to the address of the party to be
served as shown in this Agreement or such other address as
may from time to time be notified for this purpose and any
notice so served shall be deemed to have been served 48
hours after the time on which it is posted or 72 hours
after the time on which it was posted in the case of
airmail post and in proving such service it shall be
sufficient to prove that the notice was properly addressed
and posted and that before the notice is sent by post a
copy shall be sent by facsimile to the Vendor's Solicitors
for the attention of Mr XX Xxxxxxx. If served by
facsimile, notice shall be deemed to have been served upon
transmission of the communication to the relevant
facsimile number and production by the sending facsimile
machine of a transmission report showing that the
facsimile message has been properly received by the
facsimile number to which it was transmitted..
11. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by English law and the
parties hereby submit to the non-exclusive jurisdiction of
the English Courts.
AS WITNESS whereof this Agreement has been entered into the day
and year first above written.
THE FIRST SCHEDULE
PARTICULARS OF THE VENDOR, THEIR SHAREHOLDINGS
IN THE COMPANY AND THE CONSIDERATION
(1) (2) (3)
Names and Addresses No. of Consideration
Shares Shares
Terrafirma Designs Limited 10B Shares 26,583
THE SECOND SCHEDULE
BASIC INFORMATION CONCERNING THE COMPANY
A. The Company : Creative Communication
Solutions Limited
1. Registered Number : 2973798
2. Date of incorporation : October 5, 1994
3. Address of registered : Xxxxxx Xxxxx, Xxxx Xxxxxx,
xxxxxx Xxxxxxxx, Xxxx Xxxxxx, BN 11
1DJ
4. Authorised share : 1000 pounds sterling
capital
5. Issued and fully paid : 100 ordinary shares of 1 pound sterling each
share capital
6. Directors:
Full Names G S Caswill
A J Eagle
X X Xxxxxxxxxx
7. Secretary:
Full Name G S Caswill
SIGNED by Xxxxx Xxxxxxxxxx )
in the presence of:- ) /s/Xxxxx Xxxxxxxxxx
SIGNED by )
for and on behalf of ) /s/Xxxxx Xxxxxxxxxx
TERRAFIRMA DESIGNS LIMITED )
in the presence of:- )
SIGNED by )
for and on behalf of )
PAREXEL INTERNATIONAL )
CORPORATION )
in the presence of:- ) /s/Xxxxx X. Xxxxxxxx
