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EXHIBIT 4.6
DATED 28TH FEBRUARY 1997
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SHARE PURCHASE AGREEMENT
ARFON XXXXX XXXXX (1)
and
XXXXX XXXXX
AND
PAREXEL INTERNATIONAL CORPORATION (2)
S-CUBED CLINICAL LIMITED
XXXXXXXX XXXXXX
000 Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000-000 0000
Fax: 0000-000 0000
Ref: 0450711.01
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CONTENTS
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NO. HEADING PAGE
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1. DEFINITIONS 2
2. THE SHARES 9
3. REPAYMENT BY VENDORS AND THE COMPANY 10
4. COMPLETION 10
5. WARRANTIES 12
6. TAX INDEMNITIES 14
7. COMPLIANCE WITH US LAW 14
8. RESTRICTIVE COVENANTS 16
9. GENERAL PROVISIONS 17
10. ANNOUNCEMENTS 18
11. COSTS 18
12. NOTICES 18
13. GOVERNING LAW AND JURISDICTION 18
FIRST SCHEUDLE: Particulars of the Venors 20
SECOND SCHEDULE: Basic Information Concerning the Company 21
THIRD SCHEUDLE: Warranties and Representations Clause 5 23
FOURTH SCHEDULE: Tax indemnities 34
FIFTH SCHEDULE: Vendors Protection
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THIS AGREEMENT is made the 28th day of February 1997
BETWEEN:
(1) THE SEVERAL PERSONS whose names and addresses are set out in Column
(1) of the First Schedule hereto ("the Vendors")
(2) PAREXEL INTERNATIONAL CORPORATION whose principal place of business is
at 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, XXX ("the Purchaser")
WHEREAS
(A) S-Cubed Clinical 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 Vendors are the beneficial owners of or are otherwise able to
procure the transfer of the numbers of shares of the Company specified
in Column (2) of the First Schedule hereto opposite their respective
names.
(C) The Vendors are desirous of selling and the Purchaser is willing to
purchase 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:-
"Business day" a day on which banks shall be open in London
for the conduct of generally banking
business (excluding Saturdays);
"Claim" in the Fourth and Fifth Schedule hereto
shall mean any claim assessment notice
demand letter or other document issued or
action taken by or on behalf of any Taxation
Authority whereby it appears that the
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Company or the Purchaser is to be or is
sought to be made subject to a Liability to
Taxation;
"the Consideration Shares" means such Common Stock of US$0.01each of
the Purchaser issued to the Vendors as
Consideration hereunder;
"the Companies Acts" the Companies Acts 1985 and 1989, the
Insolvency Xxx 0000, the Business Names Xxx
0000, the Companies Securities (Insider
Dealing) Xxx 0000 and every statutory
modification or re-enactment thereof for the
time being in force;
"Completion" completion of the obligations of the parties
hereunder in accordance with the provisions
of Clause 5 hereof;
"the Disclosure Letter" the letter of even date herewith from the
Vendors' to the Purchaser's a copy of which
is annexed hereto;
"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;
"the Effective Date" the date of Completion;
"Event" includes (without limitation) any act
omission, transaction or shortfall in
distributions whether or not the Company is
a party thereto and includes Completion;
"Independent Accountant" means such person who shall be nominated by
either party upon agreement or failing
agreement by
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the President for the time being of the
Institute of Chartered Accountants;
"Industrial Property Rights" patents, trade marks, registered designs,
pending application for any of the
foregoing, trade or business names and
copyright and all other similar industrial,
intellectual or commercial rights;
"Liability to Taxation" means not only a liability to make an
actual payment of or in respect of
Taxation (whether the same has been the
subject of any assessment or demand at
Completion or otherwise) and whether
satisfied or unsatisfied at Completion but
shall also include:-
(a) the loss, counteraction,
nullification, disallowance or
claw-back of any Relief granted by
or pursuant to any Taxation Statute
or otherwise for taxation purposes
which would (were it not for the
Liability to Taxation in question)
have been available to the Company
or the Purchaser; and
(b) the nullification cancellation or
set-off of a right to repayment of
Taxation which would (were it not
for the Liability to Taxation in
question) have been so available to
the Company or the Purchaser
and in the case of a relief allowance or
credit so lost, the amount of the relief
allowance or credit so lost, or if such
relief allowance or credit is a deduction
from or is offset against gross income or
profits, the amount of Taxation which would
(in the case of a lost relief allowance or
credit and on the basis of tax rates current
at the date of such loss) have been saved
thereby but for such loss shall be treated
as an
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amount of Taxation for which a liability on
the Company or the Purchaser (as
appropriate) has arisen and fallen due, and
in the case of a nullification cancellation
or set-off of a right to repayment of
Taxation the amount of the repayment which
would otherwise have been obtained shall be
treated as an amount of Taxation for which a
liability on the Company or the Purchaser as
appropriate has arisen and fallen due;
"Management Accounts Date" 31st January 1997;
"Nasdaq" National Association of Securities Dealers
Automated Quotation System;
"the Purchaser's Accountant" means Messrs Price Waterhouse of Thames
Court, 0 Xxxxxxxx Xxxxxx, Xxxxxxx;
"the Purchaser's Solicitors" Xxxxxxxx Xxxxxx of 000 Xxxxxx, Xxxxxx
XX0X 0XX
"Reliefs" in the Fourth Schedule hereto means all
amounts available to reduce either profits
or Taxation and includes (without
limitations) all losses allowances
exemptions set-offs deductions credits and
repayments;
"the Shares" the shares of the Company specified in
Column (2) of the First Schedule hereto;
"Taxation" means:-
(a) any charge, tax, duty, levy or
liability imposed by national or
local government or any other
person pursuant to any statute or
statutory provision including
orders, regulations, instruments,
bye-laws or other subordinate
legislation made under the
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relevant statute or statutory
provision and includes (without
limitation) corporation tax,
advance corporation tax, income
tax, capital gains tax,
development land tax, value added
tax, customs and other import
duties, national insurance
contributions, stamp duty, capital
duty, stamp duty reserve tax,
estate duty, capital transfer tax,
inheritance tax and any amount
which the Company is liable to
account for by way of deduction or
withholding, amounts equivalent to
the foregoing and any payment
whatsoever chargeable in the
United Kingdom or elsewhere which
the Company may be or become bound
to make to any person as a result
of the operation of any enactment
relating to Taxation;
(b) any capital transfer tax or
inheritance tax which:-
(i) is at the date hereof a
charge over any of the
shares of the Company; or
(ii) at the date hereof gives
rise to a power of sale
over the shares of the
Company; or
(iii) after the date hereof
becomes a charge on or
gives rise to a power of
sale over any of the
shares of the Company
being a liability in
respect of additional
capital transfer tax or
inheritance tax payable
on the death of any
person within three years
or seven years after a
transfer of value or gift
and in deciding whether a
charge
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on or power of sale over
any of the shares exists
at any time the fact
that any capital
transfer tax or
inheritance tax is not
yet payable or may be
paid by instalments
shall be disregarded and
such tax shall be
treated as becoming due
and a charge or power of
sale as arising on the
date of the transfer of
value or capital
distribution in respect
of which it becomes
payable or arises and
the provisions of IHTA
S213 shall not apply
thereto;
(c) any Taxation assessed on the
Vendors under ICTA S776 which is
recoverable from the Purchaser
and/or the Company pursuant to the
provisions of S777(8) of that Act
to the extent the Vendors make a
claim for recovery from the
Purchaser and/or the Company;
(d) any penalties fines costs charges
interest or damages payable in
connection with any Taxation;
(e) any payment made or liability
incurred in connection with any
reasonable settlement of any Claim
for Taxation;
(f) all costs and expenses incurred by
the Company or the Purchaser in
connection with any Claim for
Taxation to which the Tax
Indemnities relate;
"Taxation Authority" any national or local government, authority
or body whatsoever whether of the United
Kingdom or
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elsewhere empowered to impose collect or
administer Taxation;
"Tax Indemnities" the indemnities provided by Clause 7 and the
Seventh Schedule hereto;
"Taxation Statute" any statute enactment law regulation or
practice enacted or issued or coming into
force providing for or imposing any
Taxation;
"the Vendor's Accountants" Xxxxx Xxxxxxxx of 00 Xxxxxxx Xxxx Xxxx,
Xxxxxxxxx X0 0XX;
"the Vendors' Solicitors" Wake Xxxxx of 00 Xxxxxxxxxxx Xxxx, Xxxxxxxxx
X00 0XX;
"Warranties" means the representations and warranties
made to the Purchaser in the terms set out
in Clause 5 and the Third Schedule;
"Warranty Claim" in relation to the Fifth Schedule shall mean
any claim made by the Purchaser against the
Vendors for breach of the Warranties in the
Third Schedule;
"ICTA" the Income and Corporation Taxes Xxx 0000;
"CAA" the Capital Xxxxxxxxxx Xxx 0000;
"IHTA" the Inheritance Tax Xxx 0000;
"FA" Finance Act;
"TCGA" the Taxation of Chargeable Gains Xxx 0000;
"VATA" the Value Added Tax Xxx 0000;
"TMA" the Taxes Management Xxx 0000.
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
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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 Vendors" includes their respective 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 Where any Warranty or matter disclosed in the Disclosure Letter refers
to the knowledge information awareness or belief of a Vendor, each of
the Vendors shall be deemed to have made all reasonable enquiries into
the subject matter of that Warranty or Disclosure.
1.6 The expression "Subsidiary" shall mean any subsidiary (as defined by
Section 736 of the Companies Xxx 0000 (as amended by the Companies Act
1989)) for the time being of the Company.
1.7 References to Clauses, Sub-clauses and Schedules are references to
Clauses and Sub-clauses of this Agreement and Schedules to this
Agreement.
1.8 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.
1.9 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.
1.10 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.
1.11 The headings in this Agreement are inserted for convenience only and
shall not affect the construction hereof.
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1.12 Reference to income or profits or gains earned accrued or received
shall include income or profits or gains deemed to have been or treated
as or regarded as earned accrued or received for the purposes of any
Taxation Statute.
2. THE SHARES
2.1 The Vendors shall sell and the Purchaser shall purchase with effect
from the Effective Date the Shares free from any Encumbrance and
together with all accrued benefits and rights for the consideration
described in sub-clause 3.2 below ("the Consideration").
2.2 The Consideration shall be satisfied by the allotment and issue to the
Vendors credited as fully paid of 4,000 Common Stock of US$0.01 each of
the Purchaser ranking pari passu with the existing issued Common Stock
of US$0.01 each in the capital of the Purchaser save that such shares
shall not be entitled to participate in any dividend declared or paid
in respect of the year ending 30th June 1997;
3. REPAYMENT BY VENDORS AND THE COMPANY
3.1 The Vendors will prior to or simultaneously with Completion repay to
the Company any sums due by the Vendors, any Associate of the Vendors
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 Vendors
will confirm in writing to the Purchaser that they have so procured
3.2 At Completion the Purchaser shall procure that the Company shall repay
the Vendors the amount owing to them as specified in the Disclosure
Letter.
3.3 The Purchaser shall use its reasonable endeavours to secure the release
of the Vendors from any guarantees and other contingent liabilities
listed in the Disclosure letter and the Purchaser shall until it has
obtained a release indemnify and keep indemnified the Vendors against
any liability (including costs, damages and expenses) thereunder or
which may be incurred in relation thereto.
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4. COMPLETION
4.1 Completion shall take place on 28 February 1997 at the offices of the
Purchaser's Solicitors or such other offices as the parties may
subsequently agree when:-
4.1.1 the Vendors 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) the certificate of incorporation, all certificates on
change of name, the seal and statutory books of the
Company made up to the date of Completion;
(c) the Leases to the Property;
(d) if the Purchaser so requires an effective waiver by
each of the members of the Company of any rights
which he may have under the Articles of Association
of the Company to have the Shares or any of them
offered to him for purchase and any other documents
necessary to substantiate the right of the
transferors of the Shares pursuant to this Agreement
to transfer the same;
(e) written confirmation pursuant to Clause 3.1;
(f) written resignation letters executed under seal by
such of the directors and secretaries of the Company
as the Purchaser may nominate, each such letter
incorporating an acknowledgement that the party
resigning has no claims (whether for compensation for
loss of office or termination of employment, unpaid
remuneration or otherwise howsoever) against the
Company; and
4.1.2 the Vendors shall procure that the Directors shall hold a
meeting of the Board of the Company at which
(a) the Directors shall appoint such persons as the
Purchaser may nominate as directors of the Company
and procure the resignation without compensation of
any nature whatsoever of such of the
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Directors and Secretary of the Company as the
Purchaser may nominate;
(b) the Directors shall vote in favour of the
registration of the Purchaser or its nominees as
members of the Company subject to the production of
duly stamped and completed Transfers;
(c) Messrs Price Waterhouse shall be appointed Auditors;
4.1.3 the Vendors shall procure the convening of an extraordinary
general meeting of the Company and the passing of a special
resolution to adopt new articles of association in the
approved terms;
4.1.4 Subject to the performance by the Vendors of their obligations
in accordance with the foregoing provisions of this Clause 4,
the Purchaser shall allot to each of the Vendors the number of
the Consideration Shares of the Purchaser to which he is
entitled hereunder and deliver the relative documents of
title;
4.2 If in any respect the provisions of sub-clauses 4.1.1, 4.1.2, 4.1.3 and
4.1.4 are not complied with on the date for Completion set by clause
4.1 the Purchaser and the Vendors as appropriate may:-
4.2.1 defer Completion to a date not more than 10 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.
5. WARRANTIES
5.1 The Purchaser has entered into this Agreement and proposes to acquire
the Shares on the faith of the Warranties.
5.2 In particular and without prejudice to the generality of sub-clause 5.1
the Vendors hereby warrant and represent to the Purchaser that the
recitals to this Agreement and
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the Warranties are at the date hereof and will at Completion be true
and accurate in all respects.
5.3 The Purchaser shall not be entitled to claim that any fact renders any
of the Warranties untrue or misleading or caused them to be breached if
it has been fully fairly and accurately disclosed to the Purchaser in
the Disclosure Letter.
5.4 The Vendors hereby covenant and undertake to the Purchaser that, if
after the date hereof it shall be found that any matter the subject of
a Warranty was not as warranted then, notwithstanding any further right
of the Purchaser hereunder in respect of such breach of Warranty, if
the effect thereof is that:-
5.4.1 the value of any asset belonging to the Company is less than
its value would have been had there been no breach of
Warranty; or
5.4.2 any asset represented as belonging to the Company does not so
belong; or
5.4.3 the Company has incurred or is under any liability or
contingent liability which it would not have incurred or been
under had there been no breach of Warranty;
then the Vendors shall on demand pay to the Purchaser (or, if so
requested by the Purchaser, to the Company) an amount equal to the
amount by which the value of the net assets of the Company is less than
it would have been had there been no such breach of Warranty and any
such payment made by the Vendors shall be taken into account in
assessing the damages of the Purchaser in connection with, arising out
of or resulting from any such breach of Warranty.
5.5 No claim by the Purchaser under the provisions of this Clause 5 shall
be prejudiced nor shall the amount of any such claim be reduced in
consequence of any information relating to the Company which may at any
time have come to the knowledge of the Purchaser or any of its advisers
(other than information contained in the Disclosure Letter and any
annexure thereto) and it shall not be a defence to any claim against
the Vendors that the Purchaser knew or ought to have known or had
constructive knowledge of any information (other than information
contained or supplied as aforesaid) relating to the circumstances
giving rise to such claim.
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5.6 The Warranties are separate and independent and save as expressly
provided in this Agreement or in the Disclosure Letter shall not be
limited by reference to any other paragraphs or anything in this
Agreement and such Warranties shall remain in full force and effect
notwithstanding Completion.
5.7 The Vendors shall procure that prior to Completion the Purchaser, its
agents, accountants and solicitors are given promptly on request all
such facilities and information regarding the business, assets,
liabilities, contracts and affairs of the Company and of the documents
of title and other evidence of ownership of its assets as the Purchaser
may reasonably require.
5.8 The Vendors undertake (in the event of any claim being made against any
of them in connection with the sale of the Shares to the Purchaser) not
to make any claim against the Company, or a director or an employee of
the Company, on whom any of them may have relied before agreeing to any
term of this Agreement or authorising any statement in the Disclosure
Letter but so that this shall not preclude any Vendor from claiming
against :-
5.8.1 any other Vendor under any right of contribution or indemnity
to which he may be entitled; and
5.8.2 any employee of the Company on whom they may have relied if
they have been fraudulent; and each Vendor hereby agrees to
consent to the grant of injunctive relief to restrain a breach
of the undertaking contained in this sub-paragraph if
requested by the Purchaser so to do.
6. TAX INDEMNITIES
The Vendors hereby indemnify the Purchaser in the terms of the Seventh
Schedule hereto.
7. COMPLIANCE WITH US LAW
The Vendor:
7.1 warrants and represents to the Purchaser that the Vendor:-
7.1.1 is not a US person, as that term is defined under Regulation S
of the Securities Xxx 0000 as amended ("the Act") and as at 15
May 1996 the
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Vendor was outside the United States (as that term is defined
under Regulation S) and is outside of the United States as of
the date of the execution and delivery of this Agreement.
7.1.2 is acquiring the Consideration Shares for his own account and
not on behalf of any US person or any other person, and the
transaction has not been pre-arranged with a purchaser in the
United States 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.
7.1.3 is not an officer or director of any affiliate of the
Purchaser.
7.2 acknowledges and agrees that the Consideration Shares have not been
registered under the Act, and may not be offered or sold in the United
States or to US persons unless the Consideration Shares are registered
under the Act or an exemption from the registration requirements of the
Act is available.
7.3 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.
7.4 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.
7.5 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 although in technical compliance
with Regulation S, 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.
7.6 has received and carefully reviewed the Purchaser's Prospectus dated
March 1, 1996 and Quarterly Report on Form 10-Q for the Quarter Ended
March 31, 1996
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(collectively, the "SEC Reports") and has had a reasonable opportunity
to ask questions of and receive answers from the Purchaser concerning
the Purchaser, and all such questions, if any, have been answered to
the full satisfaction of the Vendor.
7.7 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, the SEC Reports and the results of independent
investigations by the Vendor.
7.8 has not sold, exchanged, transferred, pledged, disposed or otherwise
reduced her risk relative to the Consideration Shares during the 30 day
period preceding the date hereof.
7.9 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 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-closing 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.
7.10 acknowledges and agrees that all offers and sales of the Consideration
Shares prior to the expiration of the period commencing on the date
hereof and ending 40 days thereafter (the "Restricted Period") shall
only be made in compliance with (i) the Pooling Lock-up Period and (ii)
the safe harbour provisions contained in Regulation S, with which the
Vendor is familiar, or pursuant to an exemption from registration under
the Act, and the Vendor shall not take a short position directly or
indirectly with respect to the Purchaser's during the Restricted
Period, and that all offers and sales after the expiration of the
Restricted Period in the United States or to the US persons shall be
made only pursuant to such a registration or to such exemption from
registration.
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8. RESTRICTIVE COVENANTS
8.1 For the purpose of assuring to the Purchaser the full benefit of the
businesses and goodwill of the Company each of the Vendors hereby
undertakes by way of further consideration for the obligations of the
Purchaser under this agreement as separate and independent agreements
that:-
8.1.1 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 business, accounts or finances of
the Company or its subsidiaries or any of its clients or
customers transactions or affairs, which may, or may have,
come to his knowledge;
8.1.2 for a period of two 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 any member State of 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;
8.1.3 for a period of two 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 one year prior to the
date of Completion shall have been a customer of the
Company.
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Provided that nothing in this sub-clause shall preclude or inhibit any
Vendor from carrying out his duties pursuant to a service agreement or
contract of employment between himself and the Company.
8.2 The restrictions contained in sub-clause 8.1 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.
9. GENERAL PROVISIONS
9.1 The Vendors 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.
9.2 This Agreement shall not be assignable by any party hereto without the
prior written consent of the others save by the Purchaser to any
Subsidiary of the Purchaser to which the Shares shall be transferred.
9.3 The obligations of the Vendors are joint and several and such
obligations and undertakings shall be enforceable accordingly.
9.4 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.
9.5 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.
9.6 The Purchaser may release or compromise the liability of any of the
Vendors hereunder or grant to any Vendor time or other indulgence
without affecting the liability of any other Vendor hereunder.
9.7 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
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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.
10. 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 NASDAQ and Securities
and Exchange Commission.
11. COSTS
Each party to this Agreement shall pay its own costs of and incidental
to this Agreement.
12. 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 and if served by
post shall be served by prepaid registered letter sent through the post
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 and in proving such service
it shall be sufficient to prove that the notice was properly addressed
and posted.
13. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by the law of England and Wales and
the parties hereby submit to the non-exclusive jurisdiction of the
Courts of England and Wales.
AS WITNESS whereof this Agreement has been entered into the day and year first
above written.
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THE FIRST SCHEDULE
------------------
PARTICULARS OF THE VENDORS THEIR SHAREHOLDINGS
AND THE CONSIDERATION
(1) (2) (3)
No of Common Stock shares
of the Purchaser allotted
Names and Addresses No. of Ordinary Shares to the Vendors
Arfon Xxxxx Xxxxx of: 25 2,000
00 Xxxxxxxxx Xxxx
Xxxxxxx
Xxxxxxx XX0 0XX
Xxxxx Xxxxx of: 25 2,000
00 Xxxxxxxxx Xxxx
Xxxxxxx
Xxxxxxx XX0 0XX
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THE SECOND SCHEDULE
-------------------
BASIC INFORMATION CONCERNING THE COMPANY
A. The Company
1. Registered Number : 311023
2. Date of incorporation : 5th October 1995
3. Address of registered office : Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxx, Xxxxxxx
XX0 0XX
4. Authorised share capital : P100 in Ordinary Shares of P1 each
5. Issued share capital : P100 in Ordinary Shares of P1 each
6. Directors:
Full Names Addresses
DR ARFON XXXXX XXXXX 00 Xxxxxxxxx Xxxx
Xxxxxxx
Xxxxxxx XX0 0XX
DR XXXXX XXXXX 00 Xxxxxxxxx Xxxx
Xxxxxxx
Xxxxxxx XX0 0XX
DR XXXXXXX XXX St Xxxxx View
off Xxxx Xxxx
Xxxxx Xxxxxxxxx
Xxxxxxxx
Xxxxxxxxxx XX0 0XX
XXXXXXX XXXX XXXXXX 0 Xxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxxx
Xxxxxxxx
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7. Company Secretary
NIGEL XXXXX XXXXXXXX 00 Xxxxxx Xxxx
Xxxxx
Xxxxxxxx
XX0 0XX
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THE THIRD SCHEDULE
------------------
WARRANTIES AND REPRESENTATIONS: CLAUSE 5
----------------------------------------
The warranties and representations referred to in Clause 5 of the foregoing
Agreement are that:-
1. CONSTITUTION OF THE COMPANY
1.1 Share Capital
-------------
The Company has an authorised and issued share capital as set out in
the Second Schedule and the issued shares are beneficially owned by the
Vendors in the numbers set opposite their respective names in the
second column of the First Schedule to the foregoing agreement free
from all liens charges and encumbrances or interests in favour of any
other person.
1.2 Memorandum and Articles
-----------------------
The copy of the Memorandum and Articles of Association of the Company
annexed to the Disclosure Letter is true and complete and has embodied
therein or annexed thereto a copy of every such resolution or agreement
as is referred to in Section 380 of the Companies Xxx 0000.
1.3 Company Resolutions
-------------------
Neither the Company nor any class of its members has passed any
resolution (other than resolutions relating to business at Annual
General Meetings which was not special business).
1.4 Options etc.
-----------
No person has the right (whether exerciseable now or in the future and
whether contingent or not) to call for the issue of any share or loan
capital of the Company under any option or other agreement (including
conversion rights and rights of pre-emption) and no claim has been made
by any person to be entitled to any such right.
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1.5 Returns and Compliance with Company Law etc.
-------------------------------------------
The Company has to the Vendors knowledge information and belief
complied with the provisions of the Companies Acts The Financial
Services Xxx 0000 and the Xxxxxxxx Xxxxxxxxxxx Xxx 0000 and all returns
particulars resolutions and other documents required under any
legislation to be delivered on behalf of the Company to the Registrar
of Companies or to any other authority whatsoever have been properly
made and delivered.
1.6 Statutory Books
---------------
The register of members and other statutory books of the Company have
been properly kept and contain a true and complete record of the
matters which should be dealt with therein; no notice or allegation
that any of the same is incorrect or should be rectified has been
received.
1.7 Insolvency
----------
No order has been made or petition presented or resolution passed for
the winding up of the Company, nor has any distress execution or other
process been levied in respect of the Company, nor is there any
unfulfilled or unsatisfied judgment or court order outstanding against
the Company.
1.8 The Shares
----------
1.8.1 Commission
----------
No one is entitled to receive from the Company any finders fee,
brokerage, or other commission in connection with the purchase
of shares in the Company or any Associate company of the
Company.
1.8.2 New Issues
----------
Save as provided in this Agreement no share or loan capital has
been issued or agreed to be issued by the company other than
the 100 ordinary shares of P1 each issued to the Vendors and
Sheffield Statistical Services Limited.
1.8.3 There are no agreements or arrangements in force which provide
for the present or future issue, allotment or transfer of or
grant to any person the
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right (whether conditional or otherwise) to call for the
issue, allotment or transfer of any share or loan capital of
the Company (including any option of pre-emption or
conversion).
1.9.4 The Company has not adopted, agreed or resolved to adopt any
employee share option scheme, profit sharing involving the
Company's share capital or share incentive scheme of any nature
whatsoever.
1.9 Capacity of Vendors
-------------------
Each Vendor has full power to enter and perform this Agreement, which
when executed constitute binding obligations on each Vendor in
accordance with their terms.
1.10 Vendors' other Interests
------------------------
No Vendor nor any Associate of any Vendor has any estate, right or
interest, directly or indirectly, in any business other than that now
carried on by the Company which is or is likely to be or become
competitive with the business or the proposed business of the Company
save as the registered holder or beneficial owner of any class of
securities of any company if such class of securities is listed on any
recognised Stock Exchange and in respect of which such person holds, or
is beneficially interested in, (together with his Associates) less than
five per cent. of any single class of the securities in that company.
2. ACCOUNTS
2.1 Management Accounts Warranty
----------------------------
The Management Accounts:-
2.1.1 give a true and fair view of the assets and liabilities of
the Company at the Management Accounts Date;
2.1.2 properly reflect the financial position of the Company as at
the Management Accounts Date.
2.2 Provisions for Liabilities
--------------------------
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Proper provision or reserve has been made in the Management Accounts
for all liabilities and capital commitments of the Company outstanding
at the Management Accounts Date whether known contingent unquantified
disputed or not.
2.3 Tax Provisions
--------------
Proper provision or reserve has been made in the Management Accounts
for all Taxation assessed or liable to be assessed on the Company or
for which it is accountable in respect of income profits or gains
earned accrued or received on or before the Balance Sheet Date or any
event on or before the Management Accounts Date.
2.4 Debts
-----
All debts owed to the Company as at Completion will realise their full
face value and be good and collectable in the ordinary course of
business and in any event will have been paid to the Company within
three months of Completion.
3. FINANCE
Financial Position and Prospects
--------------------------------
There has been no material deterioration in the financial position or
prospects or turnover of the Company since the Management Accounts
Date.
4. OWNERSHIP OF ASSETS
4.1 Assets
------
4.1.1 Except for current assets disposed of by the Company in the
ordinary course of its business the Company is the owner of and
has good marketable title to all assets included in the
Management Accounts or which have been acquired by the Company
since the Management Accounts Date.
4.2 Insurances
----------
4.2.1 The policies of insurance which are maintained by the Company
afford the Company adequate cover against such risks as are
commonly covered by insurance by companies carrying on the same
type of business as the Company and in particular insure the
assets and undertakings of the
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Company (of an insurable nature) against fire in their full
replacement or reinstatement value.
4.2.2 The Company is now, and has at all material times been,
adequately covered against accident, damage, injury, third
party loss (including product liability), loss of profits and
other risks normally covered by insurance.
4.2.3 All insurance is currently in full force and effect and nothing
has been done or omitted to be done which could make any policy
of insurance void or voidable or which is likely to result in
an increase in premium.
4.2.4 There is no claim outstanding under any such policy nor are the
Vendors aware of any circumstances likely to give rise to a
claim.
4.2.5 The Company has paid all sums falling due prior to Completion
in respect of premiums on all policies of insurance maintained
by the Company and the Company will at its expense from time to
time:-
(a) renew all policies due for renewal between the date
hereof and the Completion Date for a reasonable and
normal period of renewal; and
(b) insure and maintain insurance for the full value thereof
upon all assets coming into its possession between the
said date in accordance with its normal practice and for
a reasonable and normal period,
such periods in every case to extend beyond the Completion
Date.
5. BUSINESS OF THE COMPANY
5.1 Changes since incorporation
---------------------------
Since the date of incorporation the Company:-
5.1.1 has carried on its business in the ordinary and usual course;
5.1.2 has not entered into any transaction nor assumed any liability
nor made any payment not provided for in the Management
Accounts which is not in the ordinary course of its business;
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28
5.1.3 has carried on the business without any interruption or
alteration in the nature scope or manner of its business;
5.1.4 has not borrowed or raised any money or taken any financial
facility (except such short term borrowings from its bankers
as are disclosed in the Disclosure Letter);
5.1.5 has paid its creditors within the times agreed with such
creditors and there are not debts outstanding by the Company
which have been due for more than four weeks;
5.2 Licences etc.
------------
5.2.1 All necessary licences consents permits and authorities
(public and private) have been obtained by the Company to
enable the Company to carry on its business effectively in the
places and in the manner in which such business is now carried
on and all such licences consents permits and authorities are
valid and subsisting.
5.2.2 The Company is not in breach of any of the terms and
conditions of any such licences or consents and there are no
factors known to the Vendors that might in any way prejudice
the continuation or renewal of any of such licences or
consents.
5.3 Breach of statutory provisions, etc.
-----------------------------------
5.3.1 Neither the Company, nor any of its officers, agents or
employees to the Vendors knowledge information and belief
(during the course of their duties in relation to the Company)
have committed, or omitted to do, any act or thing the
commission or omission of which is, or could be, in
contravention of any Act, Order, Regulation, or the like in
the United Kingdom which is punishable by fine or other
penalty; and
5.3.2 the Company has not received any Notice of any offence or
breach of statutory duty or any other Notice whatsoever
(whether or not giving rise to a criminal liability) under the
provisions of the Xxxxxxxxx Xxx, 0000, The Office Shops and
Railway Premises Act, 1963, The Fire Precautions Act,
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29
1971 or The Health and Safety at Work Act, 1974 (or any Order
or Regulation made thereunder) the Wages Xxx 0000;
5.3.3 the Company has duly complied with all relevant requirements
of the Financial Services Xxx 0000 and the Data Protection Xxx
0000.
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5.4 Litigation
----------
5.4.1 The Company is not engaged in any litigation or arbitration
proceedings.
5.4.2 To the Vendors knowledge information and belief there are no
litigation or arbitration proceedings pending or threatened by
or against the Company and there are no circumstances likely
to give rise to any litigation or arbitration.
5.4.3 The Company is not subject to any order or judgment given by
any Court or governmental agency and has not been a party to
any undertaking or assurance given to any Court or
governmental agency which is still in force.
5.5 Guarantees, Options, etc
------------------------
The Company is not a party to any option or pre-emption right, or a
party to any guarantee or suretyship or any other obligation (howsoever
called) to pay, purchase or provide funds (whether by the advance of
money, the purchase of or subscription for shares or other securities,
the purchase of assets or services, or otherwise) for the payment of,
indemnity against the consequence of default in the payment of, or
otherwise to be responsible for, any indebtedness of any other person.
5.6 Other Party's Defaults
----------------------
No party to any agreement with or obligation to the Company is in
default thereunder being a default which would be material in the
context of the financial or trading position of the Company nor (so far
as the Vendors are aware) are there any circumstances likely to give
rise to such a default.
5.7 Other Material Contracts
------------------------
The Company is not a party to nor subject to any agreement,
transaction, obligation, commitment, understanding, arrangement or
liability which:-
5.7.1 is incapable of complete performance in accordance with its
terms; or
5.7.2 is known by any Vendor or by the Company to be likely to
result in a loss to the Company on completion of performance;
or
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31
5.7.3 cannot readily be fulfilled or performed by the Company on
time and without undue or unusual expenditure of money, effort
or personnel; or
5.7.4 involves or is likely to involve obligations, restrictions,
expenditure or receipts of an unusual, onerous or exceptional
nature and not in the ordinary course of the Company's
business; or
5.7.5 is a contract with any trade union or body or organisation
representing its employees; or
5.7.6 requires an aggregate consideration payable by the Company in
excess of P10,000; or
5.7.7 involves or is likely to involve the supply of goods by or to
the Company the aggregate sales value of which will represent
in excess of ten per cent. of the turnover of the Company for
the last financial year; or
5.7.8 requires the Company to pay any commission, finders fee,
royalty or the like; or
5.7.9 is in any way otherwise than in the ordinary and proper course
of the Company's business.
5.8 Consequence of share acquisition by the Purchaser
-------------------------------------------------
The acquisition of the Shares of the Company by the Purchaser or the
compliance with the terms of this Agreement will not:-
5.8.1 cause the Company to lose the benefit of any right or
privilege it presently enjoys or cause any person who normally
does business with the Company not to continue to do so on the
same basis as previously;
5.8.2 relieve any person of any obligation to the Company (whether
contractual or otherwise) or enable any person to determine
any such obligation or any right or benefit enjoyed by the
Company or to exercise any right whether under an agreement
with or otherwise in respect of the Company;
5.8.3 result in any present or future indebtedness of the Company
becoming due or capable of being declared due and payable
prior to its stated maturity;
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32
and to the best of the knowledge and belief of the Vendors the attitude
and custom of clients, customers and suppliers with regard to the
Company will not be prejudicial affected thereby.
6. EMPLOYMENT
6.1 Directors
---------
The particulars shown in the Second Schedule are true and complete and
no person not named therein as such is a director or shadow director
(as defined in Section 741 of the Companies Act 1985) of the Company.
No present officer or employee of the Company has given or received
notice terminating his employment except as expressly contemplated
under this Agreement.
6.2 Service Contracts
-----------------
There is not outstanding any contract of service between the Company
and any of its directors officers or employees which is not terminable
by the Company without compensation (other than any compensation
payable by statute) on three month's notice given at any time.
7. PENSIONS
The Company has no pension scheme and there is no arrangement to which
the Company contributes under which benefits of any kind are payable to
any employee.
8. INDUSTRIAL PROPERTY RIGHTS
The business of the Company as now carried on does not and is not
likely to infringe any Industrial Property Right of any other person
(or would not do so if the same were valid) or give rise to a liability
to pay compensation pursuant to the Patents Xxx 0000 ss 40 and 41 and
all licences to the Company in respect of any such protection are in
full force and effect.
8.1 The Company has not (otherwise than in the ordinary and normal course
of business) disclosed or permitted to be disclosed or undertaken or
arranged to disclose to any person other than the Purchaser any of its
know-how, trade secrets, confidential information, price lists or lists
of customers or suppliers.
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33
8.2 The Company is not a party to any secrecy agreement or agreement
which may restrict the use or disclosure of information.
8.3 Nothing has been done or omitted by any Group Company which would
enable any licensee under a licence granted by a Group Company to be
terminated or which in any way constitutes a breach of terms of any
licence.
8.4 All Industrial Property Rights used or required by the Company in
connection with its business are in full force and effect and are
vested in and beneficially owned by it.
8.5 The Company is the sole beneficial owner of the Industrial Property
Rights listed in the Disclosure Letter and (where registration is
possible) the Company has been and is registered as proprietor, and
each of those Rights is valid and enforceable, and none of them is
being used, claimed, opposed or attacked by any other person.
8.6 No right or licence has been granted to any person by the Company to
use in any manner or to do anything which would or might otherwise
infringe any of the Industrial Property Rights referred to above; and
no act has been done or omission permitted by the Company whereby they
or any of them have ceased or might cease to be valid and enforceable.
9. GENERAL
9.1 Material Disclosure
-------------------
9.1.1 The contents of the Disclosure Letter and of all accompanying
documents are true and accurate in all material respects and
fully, clearly and accurately disclose every matter to which
they relate.
9.1.2 The Vendors (after having made reasonable enquiry) are not
aware of any other fact or matter which renders any of the
information referred to in Warranty 8.1.1 above misleading.
9.2 Loans to Vendors
----------------
There are not outstanding:-
9.2.1 any loans made by the Company to the Vendors and/or any
director of the Company and/or any Associate of the Vendors or
of any such director;
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9.2.2 any debts owing to the Company by the Vendors and/or any
director of the Company and/or Associate of the Vendors or of
any such director;
9.2.3 any debts owing by the Company other than debts which have
arisen in the ordinary course of business; and
9.2.4 any securities for any such loans or debts as aforesaid.
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9.3 Investment, associations and branches
-------------------------------------
The Company:-
9.3.1 is not the holder or beneficial owner of and has not agreed to
acquire any class of the share or other capital of any other
company or corporation (whether incorporated in the United
Kingdom or elsewhere);
9.3.2 is not and has not agreed to become a member of any
partnership, joint venture, consortium or other unincorporated
association;
9.3.3 has no branch outside England and no permanent establishment
(as that expression is defined in the respective Double
Taxation Relief Orders current at the date hereof) outside the
United Kingdom.
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THE FOURTH SCHEDULE
-------------------
TAX INDEMNITIES: CLAUSE 7
-------------------------
1. INDEMNITY
1.1 SUBJECT as hereinafter provided the Vendor hereby agrees to pay to
the Purchaser an amount equal to:-
1.1.1 any Liability to Taxation; and
1.1.2 any depletion or reduction in value of the assets or increase
in the liabilities of either the Company or the Purchaser as a
result of or in consequence of any Liability to Taxation
resulting from or by reference to any income profits or gains earned
accrued or received on or before Completion or any Event occurring or
pursuant to any Taxation Statute deemed to occur on or before
Completion whether alone or in conjunction with other Events or
circumstances (provided that if other Events or circumstances occur
after Completion they be within the ordinary course of business of the
Company) and whether or not such Taxation is chargeable against or
attributable to any other person.
1.2 The liability of the Vendors shall be joint and several and shall bind
their respective successors and personal representatives.
2. VAT INDEMNITY
Without prejudice to paragraph 1 above the Vendor hereby agrees to pay
to the Purchaser an amount equal to any Liability to Taxation of the
Company as a result of its being treated as a member of the same group
as any other body corporate for the purposes of VATA s43 during any
prescribed accounting period as defined in VATA s25(1) which ended on
or prior to or was current at Completion and the next following
prescribed accounting period together with all costs and expenses
incurred and payable by the Company in connection with any such
Liability to Taxation.
3. EXCLUSIONS
3.1 The Indemnities contained in this Schedule do not cover any Liability
to Taxation:-
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3.1.1 to the extent that provision or reserve (not being a deferred
taxation reserve) specifically in respect thereof has been made
in the Management Accounts;
4. MITIGATION
4.1 The Vendor shall be liable under the indemnities contained in
paragraphs 1 and 2 hereof notwithstanding any Reliefs which may be
available to any person entitled to the benefit of the indemnities to
set against or otherwise mitigate any Liability to Taxation so that the
indemnities contained in this Schedule shall take effect as though no
such Reliefs were available.
4.2 If any provision for Taxation (not being a provision for deferred
taxation) contained in the Management Accounts shall at the request and
expense of the Vendor and to the satisfaction of the Purchaser's
Auditors prove to be an over-provision the amount so over-provided
shall be set off against the liability (if any) of the Vendor under the
provisions of this Schedule.
5. DISPUTES AND CONDUCT OF CLAIMS
5.1 If the Purchaser or the Company shall become aware of a Claim relevant
for the purposes of this Schedule the Purchaser shall or shall procure
that the Company will as soon as reasonably practicable give written
notice thereof to the Vendor at the address given.
5.2 If the Vendor shall indemnify and secure the Purchaser and the Company
to their reasonable satisfaction against any liabilities costs or
expenses which may be incurred thereby including any additional
Liability to Taxation the Purchaser shall or shall procure that the
Company will take such action as the Vendor may reasonably request in
writing to avoid resist appeal dispute or compromise the Claim (a Claim
where action is so requested being hereinafter referred to as a
"Dispute").
PROVIDED ALWAYS THAT the Purchaser shall not be obliged to nor be
required to procure that the Company shall take any such action if
having given the Vendor written notice of the receipt of such
assessment the Purchaser has not within 15 days thereafter received
written instructions from the Vendor in accordance with the preceding
provisions of this sub-paragraph to do so.
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5.3 Notwithstanding that the conduct of a Dispute may be dealt with in
accordance with the Vendor's request under sub-paragraph 5.2 above:
5.3.1 the Company and the Purchaser shall be kept fully informed of
all matters pertaining thereto and shall be entitled to receive
copies of all correspondence pertaining thereto;
5.3.2 all communications pertaining to the Dispute which are to be
transmitted to the Inland Revenue H.M. Customs & Excise or any
other appropriate statutory or governmental authority or body
shall first be transmitted to the Purchaser and the Company for
approval and shall only be finally transmitted if such approval
is given;
5.3.3 the Vendor shall make no settlement or compromise of the
Dispute without the prior approval of the Purchaser.
5.4 Notwithstanding the foregoing provisions of this paragraph at all times
during the conduct of a Dispute the Purchaser shall have the option
exercisable by notice in writing to the Vendor to refuse to take or
procure the taking of such action as the Vendor may request in
accordance with 5.2 above after 14 days from the date of the notice if
previously the Vendor has not taken steps properly and effectively to
conduct the said Dispute.
6. PAYMENTS
6.1 The Vendor will make payments to the Purchaser under the provisions of
this Schedule in full in cleared funds and without any deduction
whatsoever save as may be required by law as follows:
6.1.1 where the Company is due to make an actual payment of Taxation
to which this Schedule relates five days before that payment is
due;
6.1.2 in the case of the nullification cancellation or set-off of a
right to repayment of Taxation the date on which that repayment
would have been due;
6.1.3 in the case of the loss counteraction nullification
disallowance or claw-back of any Relief (other than a right to
repayment of Taxation) the date on which the Company is
required to make an actual payment of Taxation
40
39
which it would not have been required to make but for the loss
counteraction nullification disallowance or claw-back of that
Relief;
6.1.4 in the case of costs and expenses incurred by the Purchaser or
the Company in connection with any Liability to Taxation or any
other matter not dealt with elsewhere in this paragraph 6 three
days after the service by the Purchaser of a notice containing
a written demand therefor.
6.2 Where there is or has been a Dispute and the Dispute relates to a Claim
where the Taxation the subject matter thereof has to be paid before the
action requested by the Vendor in respect of the Claim can effectively
be taken payment in respect thereof shall be made by the Vendor in full
in cleared funds three days before such Taxation must be paid to enable
the Purchaser to comply with the Vendor's request.
7. TAXATION OF CLAIMS
In the event of any payment pursuant to this Schedule being liable to
Taxation in the hands of the Purchaser the amount of any such Liability
to Taxation shall be deemed to be increased so as to ensure that the
amount received by the Purchaser shall after Taxation be equal to that
which would have been received had the payment not been subject to
Taxation.
8. INTEREST
In the event that any payment pursuant to this Schedule has not been
received by the Company or the Purchaser by the date for payment in
accordance with paragraph 7 of this Schedule interest shall be payable
to the Purchaser as appropriate in respect of the sum unpaid at a rate
of 2% above Barclays Bank PLC base rate for the time being in force
calculated on a daily basis.
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THE FIFTH SCHEDULE
------------------
The parties to this Agreement agree one with the other so as to qualify the
terms of this Agreement as follows:
1. Any breach of the Warranties or Tax Indemnities or misstatement of fact by
the Vendor shall not give rise to a right on the part of the Purchaser to
rescind or terminate this Agreement after Completion.
2. No proceedings for any claim under the Warranties or the Tax Indemnities
shall be instituted unless such proceedings shall be in respect of a claim
or claims totalling (together with the amount of any such claims
previously made) in excess of US$10,000.
3. The liability of the Vendors under the Warranties and Tax Indemnities
shall not in any event exceed in aggregate US$100,000.
4. The Vendor shall not be liable in respect of any Claim or Warranty Claim
unless the amount of such liability exceeds the sum of US$1,000 and any
liability the amount of which does not exceed such sum shall be
disregarded in calculating the aggregate amount of liabilities in respect
of Claims or Warranty Claims for the purposes of clause 2 of this
Schedule.
5.1 The Vendors shall not be liable in respect of any Claim or Warranty
Claim unless written notice thereof (containing at least a general
description of the matters alleged to give rise thereto) has been
served on it on or before the earlier of (i) the first anniversary
of Completion or (ii) the issue of the statutory report in relation
to the Company's accounts for the fiscal year ending 31st March
1997.
5.2 Where written notice of a Claim or Warranty Claim has been served on
the Vendor within the period appropriate to such Claim or Warranty
Claim in accordance with the provisions of clause 5.1 but liability in
respect of such Claim or Warranty Claim has not been accepted or
finally determined within one year from the date of service of such
written notice the Vendor shall not be liable in respect of such Claim
or Warranty Claim unless bona fide legal proceedings in respect thereof
have been issued and served upon the Vendor within such one year
period.
6. The Vendor shall not be liable in respect of any Warranty Claim if and
to the extent of which:
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6.1 specific provision reserve or allowance has been made in the
Management Accounts for any liability which is the subject
matter of such Warranty Claim; or
6.2 the discharge of any liability of the Company which is the
subject matter of such Warranty Claim has specifically been taken
into account and identified in the Management Accounts; or
6.3 the subject matter of such Warranty Claim has been or is made
good including (without limitation) the receipt by the Company or
the Purchaser of compensation relating to the subject matter of
such Claim under the terms of any policy of insurance; or
7. The Vendor shall not be liable in respect of any Claim if and to the
extent of which:
7.1 such Claim would not have arisen but for a voluntary act
transaction or omission of the Company or the Purchaser after
Completion otherwise than in the ordinary course of business; or
7.2 such Claim would not have arisen but for any change or changes in
legislation (including without limitation any increase in rates
of Taxation) or in the practice of the Inland Revenue or HM
Customs and Excise or any other Taxation authority (in the United
Kingdom or elsewhere) occurring after Completion whether or not
such change or changes purport to be retrospectively effective in
whole or in part; or
7.3 such Claim would not have arisen but for the making of this
Agreement or but for any act, transaction or omission required
under the terms of this Agreement or under the provisions of any
legislation; or
7.4 such Claim arises by virtue of any change in the bases upon which
the Accounts of the Company after Completion are prepared and/or
in the policies or practice adopted in the preparation of such
accounts.
8. If the Vendors make payment in respect of any Claim and the Purchaser the
Company subsequently recovers from a third party (including without
limitation the Inland Revenue HM Customs and Excise or any other Taxation
authority) a sum which is
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referable to the subject matter of such Claim the Purchaser shall
forthwith repay to the Vendors the amount paid by it in respect of such
Claim.
9. The Purchaser may not bring a Claim or Warranty Claim more than once in
respect of the same or substantially the same set of facts.
10. Without prejudice to the liability of the Vendors in respect of any Claim:
10.1 the Purchaser shall notify the Vendors of any claim against the
Purchaser and shall procure the Company to notify the Vendors of
any claim against the Company in respect of which (if valid) a
Warranty Claim would lie against the Vendors forthwith within a
reasonable period of the Purchaser or (as the case may be) the
Company becoming aware of the same.
10.2 the Vendors shall be kept fully informed of all steps proposed to
be taken by the Purchaser and the Purchaser shall not and shall
procure that the Company and the Subsidiary shall not admit
settle or discharge any such assessment or claim without the
Vendors having first been notified of the proposals and having
been given an opportunity to comment on same.
11. Nothing in the Agreement or in the Warranties shall be deemed to relieve
the Purchaser from a duty to the Vendors to mitigate their loss.
12. Any payment made by the Vendors hereunder shall be by way of reduction of
the Consideration paid for the Shares.
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SIGNED by ARFON XXXXX XXXXX )
in the presence of:- ) /s/ Arfon Xxxxx Xxxxx
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SIGNED by XXXXX XXXXX )
in the presence of:- ) /s/ Xxxxx Xxxxx
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SIGNED by )
for and on behalf of )
PAREXEL INTERNATIONAL )
CORPORATION )
in the presence of:- ) /s/ Xxxxx X. Xxxxxxxx
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