EXHIBIT 2.1
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THIS AGREEMENT is dated 3rd day of February 1997 and is made
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BETWEEN:-
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1. XXXX STREET INVESTMENTS B.V. (Company Number:- 33248274) whose registered
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office is situate at Xxxxx 00, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx ("DVI")
(as a partner of the firm known as The Coba Group Partnership) ("the
Partnership").
2. COBA CONSULTING LIMITED whose registered office is at 40 Holborn Viaduct
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London ECIN 2PB ("the Purchaser").
(together "the Parties")
WHEREAS:-
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[A] The Partners have formed a partnership and have carried on, inter alia, the
business of management consultancy.
[B] The Purchaser is a company limited by shares of which DVI holds 25.87%.
[C] The Parties are aware that irrespective of the care they take (and have
taken) to ensure that this Agreement ("the Transaction") is dealt with on
arms length terms without conferring a benefit on any person to the
detriment of another others may take a different view and they therefore
wish to implement a mechanism to maintain adherence to arms length dealings
and the absence of any benefit being conferred on any person in the event
of such different view being taken and substantiated.
NOW IT IS HEREBY AGREED as follows:-
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1. PURPOSE AND DEFINITIONS
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1.1 This is an agreement for the sale and purchase of the Business
(as defined in sub-clause 1.2).
1.2 In this Agreement the following expressions have the following
meanings:-
"Business"
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means that proportion of DVI's interest in the management consultancy
business now carried on by the Partnership;
"Consideration"
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means the sum specified in Clause 2.1.3;
"Intellectual Property Rights"
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means all copyright technical or commercial information and computer
programs together with the benefit of all rights for the protection
thereof and of all applications for such rights as listed in Schedule
1.
"Partners"
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means Xxxxxxx Xxxxxxxx Xxxx, Xxxxxx Xxxxx Xxxxx, Xxxxxxxx Xxxx Xxxxxx,
Xxxxxx Xxxxxxx House, Xxxx Xxxxx and DVI;
"Premises"
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means the premises occupied by the Partnership at 00 Xxxxxxx Xxxxxxx
Xxxxxx XXXX 0XX;
"Transfer Assets"
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means those items referred to in Clause 2.1.1;
"Transfer Date"
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means the close of business on the date hereof;
"Work in Progress"
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means the benefit and burden of all the contracts engagements orders
and work in progress relating to the Business subsisting but
uncompleted at the Transfer Date.
1.3 References to Clauses sub-clauses and Schedules are to Clauses
and sub-clauses of and Schedules to this Agreement.
1.4 References in this Agreement to statutory provisions shall be
construed as references to those provisions as respectively replaced
amended or re-enacted (whether before or after the date hereof) from
time to time and shall include any provisions of which they are re-
enactments (whether with or without modification) and any subordinate
legislation made under such provisions and (so far as liability
thereunder may exist or can arise) shall include also any past
statutory provisions or regulations (as from time to time modified or
re-enacted) which such provisions or regulations have directly or
indirectly replaced.
1.5 Words importing the singular include the plural and vice versa
words importing a gender and references to persons include bodies
corporate or unincorporate.
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1.6 The headings to the Clauses are for convenience only and have no
legal effect.
1.7 References to "$" or "Dollars" shall mean the lawful currency of
the United States of America. For any conversion between Dollars and
Pounds Sterling the exchange rate shall be $1.67 to (pounds)1.00.
2. SALE OF THE BUSINESS AND ASSETS
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2.1 DVI with full title guarantee in accordance with the provisions
of the Law of Property (Miscellaneous Provisions) Xxx 0000 shall sell
free from all liens charges and encumbrances and the Purchaser as at
the Transfer Date shall purchase the Business as a going concern which
shall:-
2.1.1 include:-
2.1.1.1 the assets listed in Schedule 1;
2.1.1.2 all other assets of the Partnership which relate
to or are used in connection with the Business
and which are required by the Purchaser;
2.1.2 exclude:-
2.1.2.1 all debts and liabilities; and
2.1.2.2 the assets listed in Schedule 2.
2.1.3 The aggregate consideration payable for all the assets
hereby agreed to be sold shall be the sum of US$1,903,385.50.
2.2 All the assets hereby agreed to be sold shall as from the
Transfer Date (pending delivery of the same) and, in the case of those
assets which do not pass by delivery, pending the execution of such
assignments or novations as may be required shall be held by DVI on
trust for the Purchaser absolutely.
2.3 DVI shall be responsible for and shall indemnify the Purchaser
against any claims by creditors of the Business arising prior to the
Transfer Date (including the Inland Revenue and H M Customs and Excise
in respect of corporation tax or value added tax payable by DVI in
respect of any period or event occurring prior to the Transfer Date).
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2.4 The Purchaser hereby undertakes with DVI to keep DVI fully
indemnified against all losses claims liabilities costs and expenses
whatsoever in respect of any act omission neglect or default by the
Purchaser in connection with the Business or the assets relating to
the Business sold hereunder or any of them arising on or after the
Transfer Date.
2.5 Insofar as any contracts engagements orders or licenses cannot
effectively be transferred to or assumed by the Purchaser except by an
agreement of novation with third parties:-
2.5.1 if the Purchaser so requires the parties shall use their
respective reasonable endeavours to procure the same to be
novated; and
2.5.2 unless and until any such novation is effected DVI shall do all
such acts and things in relation thereto as the Purchaser may
reasonably require.
3. COMPLETION
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3.1 Completion shall take place at the offices of the Purchaser when
DVI shall:-
3.1.1 give possession to the Purchaser of the assets hereby
agreed to be sold;
3.1.2 (if requested by the Purchaser so to do) deliver to the
Purchaser duly executed assignment of such of the assets hereby
agreed to be sold as are not transferable by delivery;
3.1.3 deliver (or cause to be delivered) to the Purchaser all
books of account income records stock and other records and
information relating to the Business including all records
regarding value added taxation referred to in Section 33 Value
Added Tax Xxx 0000.
3.2 DVI hereby assigns absolutely to the Purchaser with full title
guarantee all interest and title it may have to the goodwill of the
Business being 25.87% of the said goodwill.
3.3 The Consideration shall be left outstanding as a loan from DVI to
the Purchaser without bearing interest and shall be repayable by the
Purchaser on demand from DVI.
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4. ADJUSTMENT
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4.1 If despite the common intention and understanding of the Parties
it is at any time hereafter either agreed with the Inland Revenue or
finally determined (expressly or by implication) by any Court or
Tribunal that the value attributable to the Transfer Assets is greater
than the Consideration then the parties agree that:-
4.1.1 if such greater amount is ascertained or otherwise agreed the
Purchaser shall forthwith pay to DVI the amount by which such
greater amount exceeds the Consideration; or
4.1.2 if a lesser amount is ascertained or otherwise agreed DVI shall
forthwith reimburse the Purchaser the amount by which such
lesser amount is less than the Consideration; or
4.1.3 if no amount, value or figure is agreed with the Inland Revenue
or finally determined by any Court or Tribunal (expressly or by
implication) then the calculation of the additional payment to
be made hereunder shall be determined by an arbitrator to be
appointed by agreement between the parties and in default of
agreement by an arbitrator appointed by the President of the
Chartered Institute of Arbitrators and the amount, value or
figure determined finally by the arbitration (after any appeal
or appeals) shall be treated as the market value of the
Transfer Assets and the Purchaser shall be forthwith pay to DVI
the amount by which such greater amount exceeds the
Consideration.
5. VALUE ADDED TAX
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5.1 DVI and the Purchaser intend that Section 33 of the Value Added
Tax Xxx 0000 and Article 5 of the Value Added Tax (Special Provisions)
Order 1992 shall apply to the sale and purchase of the Business and
accordingly shall use all reasonable endeavours to secure that
pursuant to such provisions the sale of the Business hereunder falls
to be treated as a transfer of a business as a going concern for the
purposes of value added taxation.
6. POST-COMPLETION MATTERS
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6.1 Notwithstanding completion of the sale and purchase hereunder DVI
shall from time to time execute and do or procure to be executed and
done all documents acts and things as may be necessary or requisite
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effectually to vest in the Purchaser the assets hereby agreed to be
sold and to give to the Purchaser the full benefit of this Agreement.
7. WARRANTIES AND REPRESENTATIONS
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7.1 Save as set out in the remainder of this clause 7, the Purchaser
hereby acknowledges that it has entered into this Agreement without
reliance on any warranty or representation made by DVI other than the
warranty by DVI (and DVI hereby warrants) that all assets transferred
hereunder are free from all liens charges and encumbrances and are
transferred with full title guarantee.
8. CONTINUING EFFECTS OF THIS AGREEMENT
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8.1 All provisions of this Agreement shall so far as they are capable
of being performed or observed continue in full force and effect
notwithstanding the Transfer Date except in respect of those matters
then already performed.
8.2 This Agreement shall be binding on and shall ensure for the
benefit of each party's successors and assign (as the case may be).
9. ENTIRE AGREEMENT
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9.1 This Agreement sets forth the entire agreement and understanding
between the parties in connection with the Business and the sale and
purchase described herein.
9.2 Any controversy or claim of whatever nature arising out of or
relating to this Agreement or breach thereof shall be governed by and
construed in accordance with the laws of England and submitted to the
exclusive jurisdiction of the English Courts.
AS WITNESS the signatures of the duly authorised representations of the parties
the day and year first above written.
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SCHEDULE 1
Assets being sold (exclusive of assets comprised in Schedule 2)
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No. Assets
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1 The goodwill and undertaking of the Business.
2 All Work in Progress.
3 All drawings sketches designs models photographs
paintings cinematographic films artwork tapes
scripts videos records including customer and
supplier records catalogues sales literature
publicity material accounting and other
specifications and printed matter or material
relating to or used in connection with the
Business whether completed or uncompleted.
4 All Intellectual Property Rights relating to the
Business.
5 All tangible personal property relating to the
Business.
6 All customer records.
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SCHEDULE 2
Assets excluded from the sale
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1 Cash in hand and at bank.
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EXECUTED as a DEED )
by XXXX STREET )
INVESTMENTS B.V. )
executed by its attorney:- ) /s/ Xxxxxx Xxxxxxx
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EXECUTED as a DEED )
by COBA CONSULTING )
LIMITED in the )
presence of:- ) /s/ Xxxxxxx Xxxx
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Director
/s/ G.A.G. Studd
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Director/Secretary
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