EX-10.2
DATED 2006
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THERMODYNETICS, INC
and
TURBOTEC PRODUCTS PLC
and
DAWNAY, DAY CORPORATE FINANCE LIMITED
and
XXXXXX XXXXX XXXXXX AND OTHERS
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RELATIONSHIP AGREEMENT
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Xxxxxxx Xxxxxxxxx
Lacon House
Xxxxxxxx'x Road
London WC1X 8RW
Tel: x00 (0)00 0000 0000
CONTENTS
CLAUSE SUBJECT MATTER PAGE
1. DEFINITIONS...........................................................1
2. INDEPENDENCE OF THE COMPANY...........................................3
3. CONFLICTS OF INTEREST.................................................4
4. RESTRICTIVE COVENANTS.................................................4
5. CONFIDENTIALITY, INTELLECTUAL PROPERTY AND DEALINGS IN
SHARES AND SECURITIES.................................................6
6. PROVISION OF INFORMATION..............................................9
7. BOARD APPOINTMENTS AND REMOVALS.......................................9
8. ADMINISTRATION FEE...................................................10
9. PRE-EMPTION RIGHTS...................................................11
10. INDEMNITIES..........................................................11
11. DURATION AND MODIFICATION OF THIS AGREEMENT..........................11
12. GOVERNING LAW........................................................12
13. AGENT FOR SERVICE OF PROCESS.........................................12
14. NOTICES..............................................................12
15. GENERAL..............................................................13
AGREEMENT
DATE 2006
BETWEEN:
(1) THERMODYNETICS, INC (incorporated in the State of Delaware, United States
of America under the Delaware General Corporation Law) whose principal
place of business is at 000 Xxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx 00000 -
0000, XXX ("PARENT").
(2) TURBOTEC PRODUCTS PLC (incorporated in England and Wales under company
number 5593339) the registered office of which is at c/o Capita
Registrars, The Registry, 00 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxx XX0 0XX
("COMPANY").
(3) DAWNAY, DAY CORPORATE FINANCE LIMITED (incorporated in England and Wales
under company number 1154048) the registered office of which is at 00
Xxxxxxxxx Xxxxxxx, Xxxxxx XX0X ODB ("NOMAD").
(4) XXXXXX XXXXX XXXXXX, XXXX XXXXXXX XXXXXXX, XXXX XXXXXX XXXXXX and XXXX
XXXXXX XXXXXXXXX all of 651 Day Hill, Windsor, Connecticut 06095, United
States of America ("TDYT DIRECTORS").
WHEREAS:
(A) The Company proposes to apply for the admission of its Ordinary Shares,
issued and to be issued, to trading on AIM.
(B) The Parent will hold in excess of 50 per cent. of the equity voting share
capital of the Company immediately following Admission.
(C) The Nomad is acting as nominated adviser to the Company under the terms
of the AIM Rules.
(D) The Parent and TDYT Directors have agreed to give certain undertakings to
the Company and to the Nomad inter alia with respect to the relationship
between the Parent and the Company.
NOW IT IS AGREED AS FOLLOWS:-
1. DEFINITIONS
In this Agreement, unless there is something inconsistent in the subject
or the context, the following expressions shall have the following
meanings:-
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"ACTING IN CONCERT"
has the meaning attributed by the City Code on Takeovers and
Xxxxxxx;
"ADMISSION"
the admission of the Ordinary Shares, issued and to be issued in
connection with the Proposals, to trading on AIM and such
admission becoming effective as provided in rule 6 of the AIM
Rules (and "admitted" shall be construed accordingly);
"AGREEMENT"
this agreement;
"AIM"
the market operated by the London Stock Exchange known as AIM;
"AIM RULES"
the rules for AIM published by the London Stock Exchange governing
admission to and the operation of AIM;
"ASSOCIATE"
has the meaning attributed by the City Code on Takeovers and
Xxxxxxx;
"BOARD"
the board of directors of the Company from time to time;
"BUSINESS DAY"
any day other than a Saturday, Sunday or a day which, by law is a
bank or legal holiday in England; the Business Day being deemed to
begin at 9am and end at 5pm London time;
"COMPANIES ACT"
the Companies Act 1985;
"COMBINED CODE"
the Combined Code on Corporate Governance published in July 2003
by the Financial Reporting Council;
"CONTROLLING INTEREST"
shares carrying votes representing 30 per cent. or more of the
votes capable of being cast at any general meeting of the Company;
"GROUP"
together, the Company and its subsidiaries from time to time;
2
"LONDON STOCK EXCHANGE"
London Stock Exchange plc;
"XXX COMMITTEE"
a committee of the Board comprising of non-executive directors
independent of the Company;
"ORDINARY SHARES"
ordinary shares of 1p each in the capital of the Company;
"PARENT DIRECTORS"
the directors from time to time of the Parent;
"PARENT GROUP"
the Parent and its subsidiaries and associated undertakings, other
than any member of the Group;
"PARTIES"
the persons between whom this Agreement is made and any lawful
assigns of the same (and the word "Party" shall be construed
accordingly);
"SERVICES"
the services to be provided by the Parent to the Company as
provided for in CLAUSE 8;
"SHARE DEALING CODE"
the code for dealing in the Company's securities as adopted by the
Board, and as amended from time to time, for the purposes of Rule
21 of the AIM Rules;
"US"
the United States of America, its territories and possessions,
including the District of Columbia;
"US SECURITIES ACT"
means the United States Securities Act of 1933 (as amended) and
all regulations made thereunder.
2. INDEPENDENCE OF THE COMPANY
2.1 The Parent and the TDYT Directors agree to, and to procure that all
members of the Parent Group and the TDYT Directors shall:
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2.1.1 conduct all transactions and relationships with any member of the
Group on arm's length terms and on a normal commercial basis;
2.1.2 exercise the voting rights attaching to the Ordinary Shares owned
and/or controlled by the Parent or by any member of the Parent
Group in such a manner so as to procure (to the extent that they
are able by the exercise of such voting rights) that each member
of the Group is capable of carrying on, and does so carry on its
business independently of the Parent and any member of the Parent
Group; and
2.1.3 not do anything or intentionally omit to do anything the effect of
which would be to frustrate the Company's compliance with the AIM
Rules or the operation and development of the business of the
Group.
2.2 The Parent undertakes to the Company to (and to procure that all
members of the Parent Group shall) abstain from voting at any general
meeting of the Company in respect of any resolution concerning any
contract, arrangement or transaction of any type between any member
of the Group and any member of the Parent Group or any of their
Associates.
2.3 The Parent further undertakes to act in the best interests of the
Group.
3. CONFLICTS OF INTEREST
3.1 The Company and the Parent agree that no material transaction,
arrangement or agreement (material for those purposes meaning
material to the business of the relevant member of the Group) between
any member of the Group and either the Parent or any member of the
Parent Group shall be entered into, amended, terminated or any action
taken to enforce or release any provision thereof without the prior
approval of the XXX Committee.
3.2 The Company and the Parent agree that all decisions relating to the
enforcement of the Company's rights under this or any other agreement
between it and the Parent as a member of the Parent's Group shall be
taken independently of the Parent Group.
3.3 The XXX Committee shall have power to:
3.3.1 review and approve all matters concerning the Group as may relate
to the Parent Group;
3.3.2 monitor transactions, dealings and arrangements between the Parent
Group and the Group and their respective Associates;
3.3.3 monitor, police and enforce the application of this Agreement.
4. RESTRICTIVE COVENANTS
4.1 The Parent agrees that during the continuance of this Agreement and
for a period of 12 months from the termination of this Agreement,
neither the Parent nor any
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individual or entity acting through or on behalf of Parent shall,
directly or indirectly, conduct, operate or hold any interest in any
business which competes with the Company or any member of the Group
in the US or Canada in the manufacture of high performance, high
quality heat exchangers, fabricated metal components and flexible
connector products for heat transfer, transportation, and plumbing
applications;
4.2 The Parent agrees that during the continuance of this Agreement and
for a period of 12 months from the termination of this Agreement,
neither Parent nor any individual or entity acting through or on
behalf of Parent shall, directly or indirectly, solicit business
from, or provide goods or services to, any customer of the Company or
any member of the Group in the US or Canada for the manufacture of
high performance, high quality heat exchangers, fabricated metal
components and flexible connector products for heat transfer,
transportation, and plumbing applications;
4.3 The Parent agrees that during the continuance of this Agreement and
for a period of 12 months from the termination of this Agreement,
neither the Parent nor any individual or entity acting through or on
behalf of the Parent shall, directly or indirectly, recruit, solicit
or otherwise induce any employee, consultant, contractor or other
personnel of the Company or of any member of the Group to terminate
his or her working relationship with the Company or member of the
Group;
4.4 In consideration of their continued employment by the Parent, each of
the TDYT Directors also personally agrees that, and the Parent shall
ensure that any other member of the Board, also personally agrees
that:
4.4.1 whilst he remains a director of TDYT and for a period of 12 months
from ceasing to be such a director, neither such Director nor any
individual or entity acting through or on behalf of such Director
shall, directly or indirectly, conduct, operate or hold any
interest in any business which competes with the Company or any
member of the Group in the US or Canada in the manufacture of high
performance, high quality heat exchangers, fabricated metal
components and flexible connector products for heat transfer,
transportation, and plumbing applications; however, the
restrictions in this clause 4.4.1 shall not prohibit a TDYT
Director from making stock market purchase transactions in any
competitive business, not exceeding 3 per cent of the issued
securities of any specific quoted company, effected through a
broker;
4.4.2 whilst he remains a director of TDYT and for a period of 12 months
from ceasing to be such a director, neither such Director nor any
individual or entity acting through or on behalf of such Director
shall, directly or indirectly, solicit business from, or provide
goods or services to, any customer of the Company or any member of
the Group in the US or Canada for the manufacture of high
performance, high quality heat exchangers, fabricated metal
components and flexible connector products for heat transfer,
transportation, and plumbing applications; and
4.4.3 whilst he remains a director of TDYT and for a period of 12 months
from ceasing to be such a director, neither such Director nor any
individual or entity acting
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through or on behalf of such Director shall, directly or
indirectly, recruit, solicit or otherwise induce any employee,
consultant, contractor or other personnel of the Company or of any
member of the Group to terminate his or her working relationship
with the Company or member of the Group;
4.5 The Parent and each TDYT Director agrees that during the continuance
of this Agreement and for a period of 12 months from termination of
this Agreement neither TDYT nor any TDYT Director nor any individual
or entity acting through or on behalf of any TDYT Director shall,
directly or indirectly, be interested in any aspect of the business
using a name or trading style in which any part of the name or style
of Turbotec appears or occurs and will not knowingly during such
period lend his support directly or indirectly to any such business
using such name or trading name or style.
4.6 Nothing contained in this CLAUSE 4 shall operate so as to prevent
Xxxx Xxxxxx from continuing to be interested in East Windsor Welding
Inc.
5. CONFIDENTIALITY, INTELLECTUAL PROPERTY AND DEALINGS IN SHARES AND
SECURITIES
5.1 The Parent acknowledges that, in the course of its business
relationship with the Company, it may be provided with Confidential
Information about the Company and/or the members of the Group which
is not publicly available and not generally known or used by the
Company's competitors, and which could be harmful to the Company if
disclosed outside of the Company. Confidential Information of this
nature may take the form of documents, be stored or transmitted
electronically, or exist in spoken words only; what matters is the
information itself, not the way in which it is stored or conveyed.
This Confidential Information may also rise to the level of trade
secrets (as defined by applicable law).
5.2 The Company acknowledges that, in the course of its business
relationship with the Parent, it may be provided with Confidential
Information about the Parent and/or the members of the Parent Group
which is not publicly available and not generally known or used by
the Parent's competitors, and which could be harmful to the Parent if
disclosed outside of the Company. Confidential Information of this
nature may take the form of documents, be stored or transmitted
electronically, or exist in spoken words only; what matters is the
information itself, not the way in which it is stored or conveyed.
This Confidential Information may also rise to the level of trade
secrets (as defined by applicable law).
5.3 In particular, the "Confidential Information" identified in CLAUSES
5.1 and 5.2 above includes, but is not limited to, the following
types of information pertaining to the business of the Parent, the
Parent Group, the Company and the Group:
5.3.1 technical information, such as product performance, testing and
related data; and research and development plans and results;
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5.3.2 product information, such as non-public details of products or
services currently being offered or potentially to be offered,
plans, drawings and specifications; and performance capabilities,
strengths and weaknesses;
5.3.3 financial information, such as material costs; supplier and vendor
information; overhead costs; profit margins; banking and financing
information; and pricing policies;
5.3.4 organisational information, such as personnel and salary data;
information concerning the utilisation of facilities; merger,
acquisition and expansion information; and equipment and resource
allocation and consumption information;
5.3.5 marketing and sales information, such as licensing, marketing and
sales techniques and data; customer lists; customer data, such as
their personnel, financial and account status; product development
and delivery schedules; market research and forecasts; and
marketing and advertising plans, techniques and budgets; and
5.3.6 advertising information, such as pricing strategies; specific
advertising initiatives, programs and strategies utilised and
contemplated; and the success or lack of success of those programs
and strategies.
5.4 Therefore, the Parent agrees that it shall not, directly or
indirectly, disclose or use any such Confidential Information
provided to it by the Company, without any limitation in time, or
until such information shall have become public by means other than
the Parent's unauthorised disclosure or use.
5.4.1 The Parent likewise undertakes that it shall not share with any
member of the Parent Group any such Confidential Information
provided to it by the Company unless such member(s) of the Parent
Group has (have) agreed to treat the Confidential Information with
at least the same level of confidentiality.
5.4.2 The Parent likewise undertakes that it shall not share with any
Parent Director or TDYT Director, officer or employee any such
Confidential Information provided to it by the Company unless such
director(s) has (have) agreed to treat the Confidential
Information with at least the same level of confidentiality.
5.5 Therefore, the Company agrees that it shall not, directly or
indirectly, disclose or use any such Confidential Information
provided to it by the Parent, without any limitation in time, or
until such information shall have become public by means other than
the Company's unauthorised disclosure or use.
5.5.1 The Company likewise undertakes that it shall not share with any
member of the Group any such Confidential Information provided to
it by the Parent unless such member(s) of the Group has (have)
agreed to treat the Confidential Information with at least the
same level of confidentiality.
5.5.2 The Company likewise undertakes that it shall not share with any
Board member, officer or employee any such Confidential
Information provided to it by the
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Parent unless such Board member(s) has (have) agreed to treat the
Confidential Information with at least the same level of
confidentiality.
5.6 The Parent and the Company additionally understand and agree that
certain Confidential Information may require the enactment of further
protective measures regarding the proper functioning of the
securities marketplace. Specifically, the Parent and the Company
agree as follows with regard to the treatment of Confidential
Information which rises to the level of material, non-public and/or
price-sensitive information relating to the Parent or the Company:
5.6.1 The Parent will adopt rules and company policies (and the TDYT
Directors will observe the same) prohibiting the Parent and its
directors and any of its employees, together with any directors
and employees of any member of the Parent Group, who may have
access to price sensitive information relating to the Company or
any member of the Group, from dealing in the Ordinary Shares or
other securities of the Company, except in accordance with the
Share Dealing Code and then only in conformity with restrictions
on resales of securities into the US under the US Securities Act;
5.6.2 The Company will adopt rules and company policies (and members of
the Board and other senior officers will observe the same)
alerting and instructing its directors and any of its employees,
together with any directors and employees of any member of the
Group, who may have possession of material, non-public information
relating to the Parent or any member of the Parent Group, that the
possession of such information may impact their ability to
purchase or sell the common stock or other securities of the
Parent.
5.7 Each of the Parent and the TDYT Directors undertakes that it or he
will not assert any rights in opposition to the intellectual property
rights of the members of the Group
5.8 Each of the TDYT Directors undertakes that he will not and will
procure that no Connected Person, within the meaning of Section 839
Income and Corporation Taxes Act 1988, shall:
5.8.1 dispose of any interest in any shares in the common stock of the
Parent for a period of 12 months from the date of Admission; nor
5.8.2 dispose of any such interest for a period of 12 months thereafter
except with the prior written consent of the Nomad, which consent
shall not be unreasonably withheld or delayed,
and for these purposes, the expression "dispose" shall extend to any
sale, transfer, charge, pledge, encumbrance or grant of any option
over or in respect of or an agreement to do any of these things
(whether oral or in writing).
5.9 Nothing in CLAUSE 5.6 shall operate so as to prevent disposals of
shares of common stock of the Parent by Xxxxxx Xxxxxx and Xxxx
Xxxxxxx up to 100,000 shares each in accordance with permissions
granted by the Securities Exchange Commission in the US PROVIDED
ALWAYS that the relevant TDYT Director shall have consulted
8
with the Nomad suitably in advance of any such dealing with a view to
ensuring the maintenance of an orderly market in the Ordinary Shares.
5.10 The Parent will not, directly or indirectly, offer, sell, pledge,
contract to sell (including any short sale), grant any option to
purchase, enter into any hedging transaction relating to, or
otherwise dispose of, any Ordinary Shares held by it from the
effective date of this Agreement until one year from the date that
the Ordinary Shares are first offered to persons other than
distributors, or the date of the closing of any such offering,
whichever is later, and thereafter only in compliance with the
registration provisions of the US Securities Act or an exemption
therefrom.
5.11 Nothing herein contained shall relieve or restrict any Party from
observing their legal or regulatory disclosure requirements to the
London Stock Exchange, the Securities Exchange Commission in the US
or to any other governmental, quasi-governmental statutory or
regulatory body or institution or court in the UK, the US or in any
other jurisdiction whatsoever.
5.12 The Parent shall not purchase or subscribe for any Ordinary Shares so
as to increase the number of Ordinary Shares held by the Parent as at
the date on or about May 8, 2006 being the anticipated date of
Admission without the prior written consent of the Nomad.
6. PROVISION OF INFORMATION
6.1 The Parent and the Company, both being reporting companies, will
endeavour to ensure that announcements to be made by them, where
there is a degree of mutuality, are made simultaneously.
6.2 Each of the Parent and the Company undertakes to provide (and to
procure the provision by their respective subsidiaries of) all such
information as may reasonably be requested by the other regarding
themselves and their affairs as may be appropriate to fulfil their
respective regulatory obligations.
6.3 Neither the Parent nor the Company shall have liability for the
accuracy of information supplied by the one to the other, save in the
case of fraud, wilful default or gross negligence.
7. BOARD APPOINTMENTS AND REMOVALS
7.1 The Parent and the Company agree that the Company shall be managed by
the Board in accordance with the articles of association of the
Company (from time to time) and all applicable laws for the benefit
of the shareholders of the Company as a whole.
7.2 It is acknowledged that Xxxxxxx Xxxxxxx Xxxxxxxxx is a representative
of the Parent on the Board. In the event that Xx Xxxxxxxxx retires or
resigns from the Board, the Parent shall be entitled to nominate a
substitute director, not being either of Xxxxxx
9
Xxxxxx or Xxxx Xxxxxxx, being a person acceptable to the nominations
committee of the Board (whose consent shall not be unreasonably
withheld or delayed). The Parent shall be entitled to request in
writing the removal of any director appointed/nominated by it to the
Board but may not appoint any replacement director to the Board
without the approval of the nominations committee (not to be
unreasonably withheld or delayed). Notwithstanding the preceding
provisions of this clause, all matters concerning appointments and
re-elections to the Board shall be for the determination of the
nominations committee of the Board save for the directors'
remuneration which shall be for the determination of the remuneration
committee of the Board.
7.3 Otherwise, the Parent agrees to exercise its voting rights attaching
to the Ordinary Shares in its control (and to procure that any
members of the Parent Group exercise the voting rights attaching to
the Ordinary Shares in their control) in such a manner as to procure
(to the extent possible by the exercise of such voting rights) that
there will always be at least a majority of the directors on the
Board and on any committee of the Board who are free of any business
or other relationship with the Parent and any member of the Parent
Group which could interfere with the exercise of their independent
judgement in matters concerning the Parent and any member of the
Parent Group. For the avoidance of doubt, the Parent shall not be
entitled to appoint or remove any director to or from the Board other
than in accordance with clause 7.2 of this Agreement. For the
avoidance of doubt, any director nominated by the Parent under clause
7.2 of this Agreement and appointed to the Board shall be eligible to
serve on any committee of the Board.
7.4 It is to be noted that all members of the Board are subject to
retirement by rotation in accordance with the terms of the articles
of association of the Company.
8. ADMINISTRATION FEE
8.1 During the continuance of this Agreement the Company shall pay to the
Parent an annual administration fee of $460,000 for the provision by
the Parent to the Company of various support services, as may be
agreed from time to time. Part of such consideration will be to
ensure, so far as possible that the Parent has sufficient cash
resources to maintain its status as a publicly quoted US company. The
administration fee will be paid monthly in arrears, payable against
production of an invoice by the Parent. The administration fee shall
be deemed to be inclusive of any taxation or similar levy. To the
extent that the Parent receives any dividend or other distribution
from the Company, the administration fee shall xxxxx on a US dollar
for US dollar basis (such dividend or distribution being calculated
at its gross and not net amount). In the event that the amount of
dividend or other distribution payable in respect of any two
consecutive fiscal years equals or exceeds the sum of the
administration fee (together with any increase to the fee in
accordance with clause 8.3 below) the administration fee shall cease
to be payable thereafter.
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8.2 In consideration of the payment of the administration fee, the Board
may require the Parent to provide, from time to time, services to the
Company at no additional charge unless otherwise agreed in writing.
8.3 The administration fee will be increased annually in line with
increases in the US Department of LIBOR Consumer Price Index for
Urban Wage Earners (CPI-W) for the New York, Northern New Jersey,
Long Island (NY-NJ, CT, PA) region.
8.4 For so long as the administration fee continues to be payable under
clause 8.1 above, the Company shall provide information and
administration services, from time to time, to the Parent to assist
it in the preparation of financial statements, public filings in the
US, bookkeeping, and bank checking account management. The Company
shall provide such services only to the same extent that it, its
officers or employees have historically provided such services to the
Parent prior to the date of this Agreement. Unless otherwise agreed
in writing, such assistance shall be at no cost to the Parent and any
additional services shall be subject to such charges as the Company
and the Parent may agree. If, in the reasonable opinion of the
Company, the services it is required to provide to the Parent under
this clause 8.4 are substantially in excess of the levels provided to
the Parent prior to the date of this Agreement, the Parent shall pay
the Company such a fee for such services as may be agreed in writing
between the Company and the Parent.
9. PRE-EMPTION RIGHTS
The Parent undertakes with the Company and with the Nomad that it will
not exercise (or permit the exercise of) any votes attaching to any
shares in the Company which it directly or indirectly controls in favour
of any resolution to give the Board authority under Section 80 of the
Companies Act 1985 to allot shares in the Company or in accordance with
Section 95 of the Companies Act to disapply any pre-emption rights which
shareholders in the Company may have, in each case otherwise than in
accordance with the guidelines published by the Investment Committees of
the Association of British Insurers and the National Association of
Pension Funds from time to time.
10. INDEMNITIES
The Parent undertakes to indemnify and keep the Company and the Company's
Group fully indemnified against all and any liabilities arising in
respect of the liabilities or obligations of any member of the Parent
Group whether in respect of guarantees, warranties, indemnities or
otherwise.
11. DURATION AND MODIFICATION OF THIS AGREEMENT
This Agreement shall come into effect from the date of Admission and will
continue in effect, unless otherwise agreed in writing by the Parties,
for so long as the Parent directly or indirectly owns and/or controls a
Controlling Interest, provided always that
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on termination, the Parent and the Company will negotiate the ongoing
provision of appropriate Services to the Company and provided further
that any termination of this Agreement shall be without prejudice to any
indemnities given hereunder and any antecedent breach hereof.
12. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
English law and the Parties submit to the exclusive jurisdiction of the
High Court in London in the interpretation and enforcement of this
Agreement, providing that nothing herein shall operate so as to prevent
either or both of the Company and the Nomad from bringing enforcement
proceedings in any other jurisdiction of their choosing.
13. AGENT FOR SERVICE OF PROCESS
Each of the TDYT and TDYT directors hereby irrevocably appoint Jordans
Limited at 00-00 Xxxxxxx Xxx Xxxxxx XX0X 0XX, to receive, for it or him
on its or his behalf, service of process in any proceedings in England.
Such service shall be deemed completed on delivery to such process agent
(whether or not it is forwarded to and received by TDYT or relevant TDYT
Directors as the case may be). If for any reason such process agent
ceases to be able to act as such or no longer has an address in England,
each of TDYT and the TDYT Directors hereby irrevocably agrees to appoint
a substitute process agent acceptable to the other parties to this
Agreement and shall immediately notify the other Parties of such
appointment and deliver to the other Parties a copy of the new agent's
acceptance of that appointment within 30 days. Nothing shall effect the
right to serve process in any other manner permitted by the law. Any such
service of proceedings in accordance with this clause 13 shall be copied
to Xxxxxxx X. Xxxxxx, P.C. at 000 Xxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx,
XXX.
14. NOTICES
14.1 Any notice or other communication given or made under this Agreement
shall be in writing and shall be delivered by hand or fax to the
address and for the attention of the relevant party set out in CLAUSE
14.3 (or as otherwise notified by that party in accordance with that
clause).
14.2 Any such notice shall be deemed to have been received:
14.2.1 if delivered by hand, at the time of delivery; or
14.2.2 if delivered by fax, at the time of transmission
provided that if deemed receipt occurs before 9.00 a.m. on a business
day the notice shall be deemed to have been received at 9.00 a.m. on
that day, and if deemed receipt occurs after 5.00 p.m. on a business
day, or on any day which is not a business day, the notice shall be
deemed to have been received at 9.00 a.m. on the next business day.
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14.3 The addresses and fax numbers of the parties for the purposes of
CLAUSE 14.1 are:
The Parent and the TDYT Directors:
Address: 000 Xxx Xxxx Xxxx
Xxxxxxx
Xxxxxxxxxxx 00000
XXX
For the attention of: Xxxxxx Xxxxxx
Fax number: x0 000 000 0000
(and copied thereafter by hand to Xxxxxxx
Xxxxxx at Xxxxxxx X Xxxxxx, P.C., 000 Xxx
Xxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxx, XXX.
Nomad and the Company:
Address: 00 Xxxxxxxxx Xxxxxxx
Xxxxxx XX0X 0XX
For the attention of: Xxx Xxxxxxxx
Fax number: x00 (0) 000 000 0000
or such other address or fax number as may be notified in writing
from time to time by the relevant party to the other parties. Any
such change to the place or fax number of service shall take effect
five business days after notice of the change is received or (if
later) on the date (if any) specified in the notice as the date on
which the change is to take place.
14.4 In proving service it shall be sufficient to prove that the envelope
containing the notice was properly addressed and delivered or, in the
case of fax, that the fax was properly addressed and disclosed the
number of pages transmitted on its front sheet and that the
transmission report indicates that each of the pages of the fax were
received at the relevant fax number.
15. GENERAL
15.1 The failure, omission or delay by any Party on any occasion to insist
upon the performance of any term, provision or condition of this
Agreement or to exercise any right, power, privilege or remedy
conferred by this Agreement shall not thereby be treated as a waiver
of any related breach or an acceptance of any consequential variation
nor shall it impair any such right, power, privilege or remedy nor
shall any single or partial exercise or waiver of any right, power,
privilege or remedy preclude its further exercise or the exercise of
any other right or remedy. The rights, powers, privileges and
remedies of the Parties provided in this Agreement are cumulative and
not exclusive of any rights or remedies provided by law.
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15.2 The Parties shall do all such things and sign all such documents as
may be reasonably necessary to give effect to the terms of this
Agreement.
15.3 Save in respect of any successor to the Nomad in the capacity of
nominated adviser under the AIM Rules, no term of this Agreement is
enforceable pursuant to the Contracts (Rights of Third Parties) Act
1999 by any person not a party to it.
15.4 This Agreement may be entered into in any number of counterparts and
by the Parties on separate counterparts, each of which when executed
and delivered shall be an original, but all the counterparts shall
together constitute one and the same instrument. This Agreement may
be exchanged by fax.
15.5 If any provision of this Agreement proves to be void, illegal or
unenforceable, such provision shall be deemed to be deleted from this
Agreement and the remaining provisions of this Agreement shall
continue in full force and effect. Notwithstanding the foregoing, the
parties to this Agreement shall thereupon negotiate in good faith in
order to agree the terms of a mutually satisfactory provision to be
substituted for the provision so found to be void, illegal or
unenforceable.
15.6 Nothing in this Agreement shall constitute or be deemed to constitute
a partnership between any of the Parties.
15.7 This Agreement may be amended by agreement in writing signed by the
Parties.
15.8 The rights and obligations of the Parties or any of them shall enure
for the benefit of, be enforceable against and shall be binding on
their respective personal representatives, successors, estates and
assigns.
15.9 The various Clauses, sub-clauses, paragraphs and sub-paragraphs of
this Agreement are severable and if any of the same or an
identifiable part thereof is held to be invalid or unenforceable in
any court of competent jurisdiction then such invalidity or
unenforceability shall not affect the validity or enforceability of
the remaining provisions or identifiable parts thereof in this
Agreement.
AS WITNESS the signatures of the parties hereto the day and year first before
written.
EXECUTED as a DEED ) THERMODYNETICS, INC.
by THERMODYNETICS, INC )
acting by )
/s/ .............................
Xxxxxx X Xxxxxx, President :
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EXECUTED as a DEED )
by TURBOTEC PRODUCTS PLC )
acting by : )
/s/
Director
/s/
Director/Secretary
EXECUTED as a DEED )
By XXXXXX, DAY CORPORATE FINANCE )
LIMITED acting by: )
/s/
Director
/s/
Director/Secretary
SIGNED by XXXXXX XXXXX XXXXXX ) /s/
As witness by: )
Witness
Signature:
Name:
Address:
Occupation:
SIGNED by XXXX XXXXXXX XXXXXXX ) /s/
As witness by: )
Witness
Signature:
Name:
Address:
Occupation:
15
SIGNED by XXXX XXXXXX XXXXXX ) /s/
As witness by: )
Witness
Signature:
Name:
Address:
Occupation:
SIGNED by XXXX XXXXXX XXXXXXXXX ) /s/
As witness by: )
Witness
Signature:
Name:
Address:
Occupation:
16
