Exhibit 10.1
DATED MARCH 22ND, 2002
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(1) ASPEON INC.
- AND -
(2) BROOMCO (2647) LIMITED
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AGREEMENT
relating to
the sale and purchase of the whole of the
issued share capital of Javelin Holdings
International Limited
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CONTENTS
1. DEFINITIONS AND INTERPRETATION............................................1
2. SALE AND PURCHASE OF SHARES...............................................5
3. CONSIDERATION.............................................................5
4. COMPLETION................................................................5
5. VENDOR'S WARRANTIES.......................................................5
6. PURCHASER'S WARRANTY......................................................6
7. VENDOR'S COVENANTS........................................................7
8. INTER-COMPANY DEBT........................................................9
9. ESCROW AGREEMENT.........................................................10
10. TOOLING..................................................................10
11. TRANSFER OF ASSETS.......................................................10
12. FURTHER ASSURANCE AND ATTORNEY...........................................10
13. INFORMATION..............................................................10
14. ANNOUNCEMENTS............................................................11
15. COSTS....................................................................11
16. SUCCESSORS AND ASSIGNMENT................................................11
17. ENTIRE AGREEMENT.........................................................11
18. TIME FOR PERFORMANCE.....................................................12
19. VARIATIONS...............................................................12
20. WAIVER...................................................................12
21. AGREEMENT CONTINUES IN FORCE.............................................12
22. SEVERABILITY.............................................................12
23. NOTICES..................................................................12
24. COUNTERPARTS.............................................................13
25. THIRD PARTY RIGHTS.......................................................13
26. GOVERNING LAW AND DISPUTE RESOLUTION.....................................13
SCHEDULE 1....................................................................14
PART 1 14
THE COMPANY..............................................................14
PART 2 15
THE SUBSIDIARIES.........................................................15
SCHEDULE 2....................................................................16
THE WARRANTIES...........................................................16
SCHEDULE 3....................................................................18
COMPLETION...............................................................18
ANNEXURE A....................................................................20
THIS AGREEMENT is made on March 22nd, 2002
BETWEEN
(1) ASPEON INC.
(2) BROOMCO (2647) LIMITED
THIS AGREEMENT is made on March 22nd, 2002
BETWEEN
(1) ASPEON INC. (a Delaware Corporation) whose principal place of business
is at 00000 Xxx Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx, XX 000 XXX ("VENDOR");
and
(2) BROOMCO (2647) LIMITED a company registered in England and Wales with
number 4261386 whose registered office is at Xxxxxxxx Xxxxxxxx, Xxxx
Xxxxx, Xxxxxxxxx X0 0XX ("PURCHASER").
BACKGROUND
A Javelin Holdings International Limited ("COMPANY") is a private company
limited by shares. Further information relating to the Company and its
Subsidiaries is set out in schedule 1.
B The Vendor is the beneficial owner or is otherwise able to procure the
transfer of the Shares.
C The Vendor has agreed to sell and the Purchaser has agreed to purchase
the Shares for the consideration and upon the terms and conditions set
out in this agreement.
IT IS HEREBY AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1 In this agreement the following words and expressions shall
(except where the context otherwise requires) have the
following meanings:
"1985 ACT" means the Companies Xxx 0000;
"1989 ACT" means the Companies Xxx 0000;
"ACCOUNTS" means the unaudited accounts of the Company and the
Subsidiaries comprising (inter alia) the unaudited balance
sheet as at the Accounts Date and the unaudited profit and
loss account for the period ended on the Accounts Date as
attached as appendix A;
"ACCOUNTS DATE" means 30 June 2001;
"BUSINESS DAY" means a day other than a Saturday or Sunday on
which banks are open for commercial business in the City of
London;
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"BUSINESS INTELLECTUAL PROPERTY" means all Intellectual
Property used, or required to be used, by the Company or any
of the Subsidiaries in, or in connection with, its business;
"COMPANIES ACTS" means the 1985 Act, the 1989 Act and the
Companies Consolidation (Consequential Provisions) Xxx 0000;
"COMPLETION" means the performance of all the obligations of
the parties to this agreement set out in clause 4;
"COMPLETION BOARD MINUTES" means minutes of meetings of the
boards of directors of the Company and the Subsidiaries in the
agreed form;
"COMPLETION DATE" means the date of this agreement;
"CONFIDENTIAL INFORMATION" means information (however stored)
created on or at any time prior to Completion relating to or
connected with the business, customers or financial or other
affairs of the Company or any of the Subsidiaries details of
which are not in the public domain including, without
limitation, information concerning or relating to:
(a) the Business Intellectual Property and any other
property of the Company or any member of the Group in
the nature of intellectual property;
(b) any technical processes, future projects, business
development or planning, commercial relationships and
negotiations; and
(c) the marketing of goods or services including, without
limitation, customer, client and supplier lists,
price lists, sales targets, sales statistics, market
share statistics, market research reports and surveys
and advertising or other promotional materials and
details of contractual arrangements and any other
matters concerning the clients or customers of or
other persons having dealings with the Company or any
member of the Group,
provided that this shall not apply to any Confidential
Information which relates to any product or products sold
under the "Javelin" trade name and which are the exclusive
property of the Vendor.
"CONSIDERATION" means the consideration for the Shares set out
in clause 3.
"ENCUMBRANCE" means a mortgage, charge, pledge, lien, option,
restriction, equity, right to acquire, right of pre-emption,
third party right or interest, other encumbrance or security
interest of any kind or any other type of preferential
arrangement (including, without limitation, a title transfer
and retention arrangement) having similar effect;
"ESCROW AGREEMENT" means an agreement to be entered into
between the Vendor and the Purchaser in a form to be agreed
between them, pursuant to which, inter alia, the Vendor shall
deposit with an escrow agent, an electronic copy of the
designs of the Viper and subsequent products of the Vendor
known as "Agile", such data to be updated by the Vendor on a
monthly basis;
"GROUP" means the Company and its subsidiary undertakings from
time to time and references to a "member of the Group" or a
"Group member" shall be construed accordingly;
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"INTELLECTUAL PROPERTY" includes patents, inventions,
know-how, trade secrets and other confidential information,
registered designs, copyrights, data, database rights, design
rights, rights affording equivalent protection to copyright,
database rights and design rights, semiconductor topography
rights, trade marks, service marks, logos, domain names,
business names, trade names, moral rights, and all
registrations or applications to register any of the aforesaid
items, rights in the nature of any of the aforesaid items in
any country or jurisdiction, rights in the nature of unfair
competition rights and rights to xxx for passing-off;
"JADE" means Jade Communications Limited
"JSE" means Javelin Systems Europe Limited;
"LICENCE AGREEMENT" means an agreement to be entered into
between Javelin Systems International Pte Limited and the
Purchaser in a form to be agreed between the Vendor and the
Purchaser, pursuant to which, inter alia, Javelin Systems
International Pte Limited shall grant to the Purchaser a
licence to use all tooling required in the manufacture of the
Viper and subsequent products, for an annual fee of $5,000;
"MANAGERS" means Moray Xxxx, Xxxxxxx Xxxxxxx, Xxxx Xxxxxxxx
and Xxxx Xxxxxx;
"PROPERTIES" means the leasehold land and premises at Xxxxx 00
xxx 00 Xxxxxxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx and
at Xxxxxxx Road, Birchwood, Warrington and any part or parts
thereof;
"PURCHASER'S ACCOUNTANTS" means BDO Xxxx Xxxxxxx of Commercial
Buildings, 00-00 Xxxxx Xxxxxx, Xxxxxxxxxx X0 0XX;
"PURCHASER'S SOLICITORS" means DLA of 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxxx X0 0XX (Ref: E Montorio/S Xxxxxxx);
"SHARES" means the 263,500 issued and allotted ordinary shares
of (pound)1 each in the capital of the Company comprising the
whole of the issued share capital of the Company;
"SUBSIDIARIES" means all the subsidiary undertakings of the
Company at the date hereof further details of which are set
out in part 1 of schedule 2 and "Subsidiary" shall mean any of
them;
"VENDOR'S GROUP" means the Vendor, any holding company of the
Vendor, any subsidiary of the Vendor and any subsidiary of any
such holding company from time to time;
"VENDOR'S SOLICITORS" means Paul, Hastings, Xxxxxxxx & Xxxxxx
LLP of Tower 42, 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (Ref: X.
Xxx);
"WARRANTIES" means the warranties contained or referred to in
clause 5 and schedule 2;
1.2 In this agreement where the context admits:
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1.2.1 words and phrases which are defined or referred to in
or for the purposes of the Companies Acts have the
same meanings in this agreement (unless otherwise
expressly defined in this agreement);
1.2.2 sections 5, 6, 8 and 9 of and schedule 1 to the
Interpretation Xxx 0000 apply in the same way as they
do to statutes;
1.2.3 reference to a statutory provision includes reference
to:
1.2.3.1 any order, regulation, statutory instrument
or other subsidiary legislation at any time
made under it for the time being in force
(whenever made);
1.2.3.2 any modification, amendment, consolidation,
re-enactment or replacement of it or
provision of which it is a modification,
amendment, consolidation, re-enactment or
replacement except to the extent that any
modification, amendment, consolidation,
re-enactment or replacement made after the
date of this agreement would increase the
liability of any of the parties hereto;
1.2.4 reference to statutory obligations shall include
obligations arising under Articles of the Treaty
establishing the European Community and regulations
and directives of the European Union as well as
United Kingdom acts of Parliament and subordinate
legislation;
1.2.5 reference to a clause, schedule or paragraph is to a
clause, schedule or a paragraph of a schedule of or
to this agreement respectively;
1.2.6 reference to the parties to this agreement includes
their respective successors, permitted assigns and
personal representatives;
1.2.7 reference to any party to this agreement comprising
more than one person includes each person
constituting that party;
1.2.8 reference to any gender includes the other gender;
1.2.9 reference to any professional firm or company
includes any firm or company effectively succeeding
to the whole, or substantially the whole, of its
practice or business;
1.2.10 reference to any English legal term for any action,
remedy, method of judicial proceeding, legal
document, legal status, court, official or any legal
concept or thing shall in respect of any jurisdiction
other than England be deemed to include what most
nearly approximates in that jurisdiction to the
English legal term;
1.2.11 the index, headings and any descriptive notes are for
ease of reference only and shall not affect the
construction or interpretation of this agreement;
1.2.12 this agreement incorporates the schedules to it;
1.2.13 a person shall be deemed to be connected with another
if that person is so connected within the meaning of
section 839 of the Taxes Act;
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1.2.14 in clause 5 and schedule 2 references to "the
Company" shall, in addition to the Company, include
every Subsidiary to the intent and effect that the
provisions of clause 5 and the Warranties and
schedule 2 shall apply to and be given in respect of
each Subsidiary as well as the Company;
1.2.15 the "agreed form" in relation to any document means
the form agreed between the parties to this agreement
and, for the purposes of identification only,
initialled by or on behalf of the parties.
2. SALE AND PURCHASE OF SHARES
The Vendor shall sell with full title guarantee the Shares and the
Purchaser shall purchase the Shares free from all Encumbrances and
together with all rights of any nature which are now or which may at
any time become attached to them or accrue in respect of them including
all dividends and distributions declared paid or made in respect of
them on or after the date of this agreement.
3. CONSIDERATION
The Consideration payable by the Purchaser to the Vendor for the
purchase of the Shares shall be $125,995 which shall be paid in cash at
Completion.
4. COMPLETION
4.1 Completion shall take place at the offices of the Purchaser's
Solicitors on the Completion Date when each of the parties
shall comply with the provisions of schedule 3.
4.2 The Purchaser shall not be obliged to complete the purchase of
the Shares under this agreement unless the Vendor complies
fully with its obligations under schedule 3 and unless the
purchase of all the Shares is completed simultaneously (but so
that completion of the purchase of some of the Shares will not
affect the rights of the Purchaser with respect to the
others).
4.3 If Completion does not take place on the Completion Date
because the Vendor fails to comply with any of its obligations
under schedule 3, the Purchaser may, by notice to the Vendor:
4.3.1 proceed to Completion to the extent reasonably
practicable;
4.3.2 postpone Completion to a date not more than 10
Business Days after the Completion Date; or
4.3.3 terminate this agreement.
4.4 If the Purchaser postpones Completion to another date in
accordance with clause 4.3.2, the provisions of this agreement
apply as if that other date is the Completion Date.
4.5 If the Purchaser terminates this agreement pursuant to clause
4.3.3, each party's further rights and obligations shall cease
immediately on termination, but termination shall not affect a
party's accrued rights and obligations as at the date of
termination.
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5. VENDOR'S WARRANTIES
5.1 The Vendor warrants and undertakes to the Purchaser that, at
the date of this agreement, each of the statements set out in
schedule 2 is true, accurate and complete in all respects and
not misleading.
5.2 The Vendor acknowledges that the Purchaser is entering into
this agreement in reliance on each Warranty which has also
been given as a representation and with the intention of
inducing the Purchaser to enter into this agreement and that
the Purchaser has been induced to enter into this agreement on
the basis of and in full reliance upon them.
5.3 Each of the Warranties shall be construed as a separate and
independent warranty and (except where this agreement provides
otherwise) shall not be limited or restricted by reference to
or inference from any other term of this agreement or any
other Warranty.
5.4 The rights and remedies of the Purchaser in respect of any
breach of any of the Warranties shall survive Completion.
5.5 The Vendor waives and may not enforce any right which it may
have in respect of any misrepresentation, inaccuracy or
omission in or from any information or advice supplied or
given by the Company or its officers or employees in enabling
the Vendor to give the Warranties and any representations.
5.6 Warranties shall not be deemed in any way modified or
discharged by reason of any investigation made or to be made
by or on behalf of the Purchaser or by reason of any
information relating to the Company of which the Purchaser has
knowledge (actual, implied or constructive).
5.7 The Purchaser accepts the benefit of clause 5 (including,
without limitation, the Warranties) for itself and as trustee
for each undertaking which is at any time a subsidiary
undertaking of the Purchaser.
6. PURCHASER'S WARRANTY
6.1 Subject to clauses 6.1.5 and 6.3, the Purchaser warrants to
the Vendor that none of the Managers has:-
6.1.1 created any liability, borrowings or indebtedness in
the nature of borrowings;
6.1.2 created any guarantee, indemnity or undertaking
(whether or not legally binding); or
6.1.3 created any Encumbrance or any obligations (including
a conditional obligation) to create an Encumbrance to
which the Vendor is subject or bound; or
6.1.4 so far as the Purchaser is aware, entered into an
agreement or arrangement to allot or issue shares in
the capital of the Company or the Subsidiaries to any
person or to grant the right (whether conditional or
not) to require the allotment or issue of any share
in the capital of the Company or the
6
Subsidiaries (including without limitation an option
or right of pre-emption or conversion) to any person.
6.1.5 so far as the Purchaser is aware, there is no
Encumbrance on, over or affecting the shares in the
Subsidiaries and so far as the Purchaser is aware,
there is no agreement or commitment in relation to
the shares in the Subsidiaries to give or create any
Encumbrance or negotiations which may lead to such an
agreement or commitment and so far as the Purchaser
is aware, no claim has been made by any person to be
entitled to an Encumbrance in relation thereto.
6.2 There shall be excluded from the warranties set out at clause
6.1:-
6.2.1 any matters which have been created or caused to be
created as a consequence of any act or omission of
Xxxx Xxxxxx at any time when he was an employee of
the Vendor;
6.2.2 any matter or thing by which the Vendor is bound or
in respect of which the Vendor is subject solely by
virtue of the Company and/or the Subsidiaries being a
member of the Vendor's Group but not otherwise; or
6.2.3 any matter or claim relating to or connected in any
way with Xx Xxxxx, Xx Xxxxxxxx or Contech Consultants
Limited or in respect of any claim made by any of Xx
Xxxxx, Xx Xxxxxxxx or Contech Consultants Limited or
any persons connected with them.
6.3 Reference to the awareness of the Purchaser shall mean actual
knowledge of each Manager (not having made enquiry of each
other) at the date of this agreement.
6.4 The Purchaser hereby undertakes to use its best endeavours
(but this shall not include, the giving of any personal
guarantees or providing bank guarantees or any other security
in respect of the same) to procure that the Vendor is released
from the guarantee given by Vendor as set out in clause 18 of
a lease of land and buildings at Xxxxxxx Road, Birchwood
Warrington dated 31 July 1998 as made between Manweb plc (1)
Javelin Systems (Europe) Limited (2) and the Vendor (3), ("THE
GUARANTEE") on or before 1 September 2003 and in any event
shall procure that the Vendor is released from the Guarantee
on or before 1 September 2003 and until such release the
Purchaser shall keep the Vendor fully and effectually
indemnified against all costs, charges, expenses, demands and
other payments suffered by the Vendor as a result of claims
being made by Manweb plc(or its successors in title or
assignees) against the Vendor under the Guarantee.
7. VENDOR'S COVENANTS
7.1 The Vendor undertakes to and covenants with the Purchaser that
(except with the consent in writing of the Purchaser) it will
not and shall procure that each member of the Vendor's Group
will not at any time after Completion:
7.1.1 use or procure or cause or (so far as he is able)
grant the right to any person to use any name or
names identical or similar to or including the word
"Jade" anywhere in this world or any colourable
imitation thereof in connection with any activity
whatsoever;
7.1.2 do or say anything which is likely or intended to
damage the goodwill or reputation of the Company or
any other member of the Group or of any
7
business carried on by any member of the Group or
which may lead any person to cease to do business
with the Company or any other member of the Group on
substantially equivalent terms to those previously
offered or not to engage in business with the Company
or any other member of the Group.
7.2 The Vendor undertakes to and covenants with the Purchaser that
(except with the consent in writing of the Purchaser) it will
not and shall procure that each member of the Vendor's Group
will not for a period of 3 years after Completion (except as
required by law or by any regulatory authority) disclose or
divulge to any person (other than to officers or employees of
the Vendor whose province it is to know the same) or use
(other than for the benefit of the Purchaser) any Confidential
Information which may be within or have come to its knowledge
and it shall use all reasonable endeavours to prevent such
publication, disclosure or misuse of any Confidential
Information.
7.3 The Vendor undertakes to and covenants with the Purchaser that
it will not and will procure that each member of the Vendor's
Group will not, for a period of two years after the date of
this agreement, either on its own behalf or jointly with, or
as agent for any other person, directly or indirectly:
7.3.1 approach, canvass, solicit or otherwise act with a
view to enticing away from or seeking in competition
with any business of the Company or any of the
Subsidiaries the custom of any person who at any time
during the period of 12 months preceding the
Completion Date is or has been a customer of the
Company or any of the Subsidiaries and during such
period shall not use its knowledge of or influence
over any such customer to the detriment of the
Company or any of the Subsidiaries;
7.3.2 seek to contract with or engage (in such a way as
adversely to affect the business of the Company or
any of the Subsidiaries as carried on at the date of
this agreement) any person who has been contracted
with or engaged to supply products, goods, materials
or services to the Company or any of the Subsidiaries
at any time during the period of 12 months preceding
the date of this agreement,
7.3.3 approach, canvass, solicit or otherwise endeavour to
entice away any person who at any time during the
period of six months preceding the Completion Date
shall be or shall have been an employee, officer, or
manager, of the Company or any of the Subsidiaries
with a view to the specific knowledge or skills of
such person being used by or for the benefit of any
person carrying on business in competition with the
business carried on by the Company or any of the
Subsidiaries;
7.3.4 approach, canvas, solicit any person who at any time
during the period of six months preceding the
Completion Date shall have been a consultant,
sub-contractor or agent of the Company or of any of
the Subsidiaries with a view to using the knowledge
or skills of such person to the detriment of the
Company or the Subsidiaries.
7.4 Each of the covenants contained in clauses 7.1, 7.2 and 7.3
shall constitute an entirely separate and independent
restriction on the Vendor.
7.5 References in this clause 6.1 to the "business of the Company
or any of the Subsidiaries" shall include the business of the
Company and/or any of the
8
Subsidiaries that may from time to time be transferred to any
company within the Group.
7.6 The Vendor agrees and acknowledges that the restrictions
contained in this clause 6.1 are fair and reasonable and
necessary to assure to the Purchaser the full value and
benefit of the Shares but, in the event that any such
restriction shall be found to be void or unenforceable but
would be valid and effective if some part or parts thereof
were deleted, such restriction shall apply with such deletion
as may be necessary to make it valid and effective.
8. INTER-COMPANY DEBT
8.1 The Purchaser shall on Completion procure the repayment by the
Company of:
8.1.1 the sum of $624,005 being part of the outstanding
indebtedness of the Company to the Vendor; and
8.1.2 the outstanding indebtedness of JSE to the Vendor of
$200,000
(together "INTER-COMPANY DEBT").
8.2 The sum of $175,000 ("BALANCE"), being the balance of the
outstanding indebtedness of the Company to the Vendor shall,
subject to clauses 8.3 and 8.4 be payable in six equal
calendar monthly instalments (each an "INSTALMENT"). The first
Instalment shall be payable on the expiration of one calendar
month from the date of this agreement together with interest
on the amount of the Balance outstanding at the end of each
month at the rate of 10 per cent. per annum on the basis of
the number of days elapsed and a 365 day year. In the event
that an Instalment is payable on a day not being a Business
Day, such Instalment shall be payable on the next Business
Day. Any such repayment of the Balance or interest due shall
be made without (and free and clear of any deduction for) set
off or counterclaim.
8.3 In the event that the Vendor enters into any arrangement with
its creditors or analogous arrangements or is deemed to be
insolvent or unable to pay its debt or a resolution or
petition is presented for its winding up or is subject to
Chapter 7 or Chapter 11 proceedings or any analogous
proceedings (an "INSOLVENCY EVENT"), any Instalments not yet
paid to the Vendor shall immediately cease to be payable. If
any such Insolvency Event ceases to apply to the Vendor within
six months of the date of such Insolvency Event and no other
Insolvency Event has occurred (which has not ceased within six
months) any Instalments not yet paid shall become repayable in
accordance with clause 8.2.
8.4 If both the Escrow Agreement and the Licence Agreement are
entered into prior to the payment of the total amount of the
Balance, any amount of unpaid Balance together with any
interest accrued on such Balance pursuant to clause 8.2 shall
be immediately payable by the Purchaser to the Vendor whether
such sum has fallen due for payment pursuant to clause 8.2 or
not.
8.5 The Vendor shall on Completion procure the repayment of the
outstanding indebtedness of:
8.5.1 $64,886 by Javelin Systems International Pte Limited
to JSE; and
8.5.2 $35,598 by Javelin Australia to JSE.
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8.6 The Vendor shall on Completion repay the outstanding
indebtedness of $89,748 by the Vendor to Jade.
8.7 The receipt of the Vendor's Solicitor in respect of the
amounts payable pursuant to clauses 8.1.1 and 8.1.2 shall be a
full discharge in respect of the indebtedness referred to in
clauses 8.1.1 and 8.1.2 and the receipt of the Purchaser's
Solicitor in respect of amounts payable pursuant to clauses
8.5.1, 8.5.2 and 8.6 shall be a full discharge in respect of
the indebtedness referred to in clauses 8.5.1, 8.5.2 and 8.6.
9. ESCROW AGREEMENT
The Parties hereby undertake to each other to use their best endeavours
to procure that the Escrow Agreement is entered into as soon as
possible immediately following the signing of this agreement and the
parties shall negotiate the Escrow Agreement and conduct such
negotiations in good faith and with all due haste.
10. TOOLING
The Vendor hereby undertakes to the Purchaser to use its best
endeavours to procure that Javelin Systems International Pte Limited
shall enter into the Licence Agreement as soon as possible immediately
following the signing of this agreement and the parties shall negotiate
the Escrow Agreement and conduct such negotiations in good faith and
with all due haste.
11. TRANSFER OF ASSETS
The Vendor hereby undertakes to the Purchaser to procure that, in the
event that the Vendor or any other member of the Vendor's Group owns
any assets which are recorded, noted or referred to in the accounts,
books, registers or other financial records of the Company or any of
the Subsidiaries, which are used by the Company or any other member of
the Group, then the Vendor or such member of the Vendor's Group (as the
case may be) shall:
11.1 if such assets are used exclusively by the Company or any
member of the Group transfer gratuitously such assets
absolutely to the Purchaser or the Company or any member of
the Group as the Purchaser shall so direct; or
11.2 if such assets are not used exclusively by the Company or any
member of the Group grant to the Purchaser or the Company or
any member of the Group as the Purchaser shall so direct a
gratuitous perpetual worldwide licence to use such assets.
12. FURTHER ASSURANCE AND ATTORNEY
12.1 On and after Completion, the Vendor shall, at the request of
the Purchaser, do and execute or procure to be done and
executed all such acts, deeds, documents and things as may be
necessary to give effect to this agreement.
12.2 On and after Completion, at the request of the Purchaser, the
Vendor shall execute or procure the execution under seal or as
a deed of a power of attorney in the agreed form in favour of
the Purchaser or such person as may be nominated by the
Purchaser generally in respect of the Shares and in particular
to enable the Purchaser (or its nominee) to attend and vote at
general meetings of the Company during the period prior to the
name of the Purchaser (or its nominee) being entered on the
register of members of the Company in respect of the Shares.
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13. INFORMATION
13.1 The Vendor shall provide or procure to be provided to the
Purchaser all such information in their possession or under
its control as the Purchaser shall from time to time
reasonably require relating to the business and affairs of the
Company and/or any of the Subsidiaries and in any case where
such information is not the exclusive property of the Company
and/or any of the Subsidiaries will give or procure to be
given to the Purchaser, its directors and agents reasonable
access to such information and will permit the Purchaser to
take copies of the same.
13.2 Subject to clause 13.3 the Purchaser hereby agrees that for
the period of seven years from the Completion Date it will
allow the Vendor and its representatives reasonable access to
those financial records of the Company and the Subsidiaries
which relate to the period prior to Completion.
13.3 The Vendor undertakes to pay all reasonable costs incurred by
the Purchaser or any member of the Group in complying with
clause 13.2.
14. ANNOUNCEMENTS
No announcement, communication or circular concerning this agreement
shall be made by or on behalf of the parties hereto without the prior
approval of the other or others (such approval not to be unreasonably
withheld or delayed) save for:
14.1 announcements to employees, customers, suppliers and agents of
the Company and/or any of the Subsidiaries and/or the
Purchaser and/or any company which is a member of the same
group as the Purchaser in such form as may be reasonably
required by the Purchaser; and
14.2 such announcements as may be required by statute and/or any
regulatory authority and/or the Securities and Exchange
Commission.
15. COSTS
Other than expressly provided in this agreement, each of the parties
shall bear and pay its own legal, accountancy and other fees and
expenses incurred in and incidental to the preparation and
implementation of this agreement and of all other documents in the
agreed form.
16. SUCCESSORS AND ASSIGNMENT
16.1 This agreement shall be binding on and enure for the benefit
of each party's successors and personal representatives but
shall not be assignable except that:
16.1.1 the Purchaser may assign the whole or any part of the
benefit of this agreement to any transferee of any
shares in the capital of the Company; and
16.1.2 the Purchaser may assign its rights under this
agreement to any company of which it is a subsidiary
or of which it is a holding company.
16.2 Except as otherwise expressly provided, all rights and
benefits under this agreement are personal to the parties and
may not be assigned at law or in equity without the prior
written consent of each other party.
11
17. ENTIRE AGREEMENT
17.1 This agreement (including the schedules to it) and any
documents in the agreed form ("ACQUISITION DOCUMENTS")
constitute the entire agreement between the parties with
respect to the subject matter of this agreement.
17.2 Except for any misrepresentation or breach of warranty which
constitutes fraud:
17.2.1 the Acquisition Documents supersede and extinguish
all previous agreements between the parties relating
to the subject matter thereof and any representations
and warranties previously given or made other than
those contained in the Acquisition Documents;
17.2.2 each party acknowledges to the other (and shall
execute the Acquisition Documents in reliance on such
acknowledgement) that it has not been induced to
enter into any such documents by nor relied on any
representation or warranty other than the
representations and/or warranties contained in such
documents;
17.2.3 each party hereby irrevocably and unconditionally
waives any right it may have to claim damages or to
rescind this agreement or any of the other
Acquisition Documents by reason of any
misrepresentation and/or warranty not set forth in
any such document.
17.3 Each of the parties acknowledges and agrees for the purposes
of the Misrepresentation Xxx 0000 and the Unfair Xxxxxxxx
Xxxxx Xxx 0000 that the provisions of this clause 17 are
reasonable.
18. TIME FOR PERFORMANCE
Time shall not be of the essence of this agreement but following
failure by any party to comply with any provision of this agreement
time may be made of the essence by any other party giving to the party
in default two Business Days' notice to that effect.
19. VARIATIONS
No variation of this agreement or any of the documents in the agreed
form shall be valid unless it is in writing and signed by or on behalf
of each of the parties to this agreement.
20. WAIVER
No waiver by either party of any breach or non-fulfilment by the other
party of any provisions of this agreement shall be deemed to be a
waiver of any subsequent or other breach of that or any other provision
and no failure to exercise or delay in exercising any right or remedy
under this agreement shall constitute a waiver thereof. No single or
partial exercise of any right or remedy under this agreement shall
preclude or restrict the further exercise of any such right or remedy.
The rights and remedies of each party provided in this agreement are
cumulative and not exclusive of any rights and remedies provided by
law.
21. AGREEMENT CONTINUES IN FORCE
This agreement shall remain in full force and effect so far as concerns
any matter remaining to be performed at Completion even though
Completion shall have taken place.
12
22. SEVERABILITY
The invalidity, illegality or unenforceability of any provisions of
this agreement shall not affect the continuation in force of the
remainder of this agreement.
23. NOTICES
Any notice to be given pursuant to the terms of this agreement shall be
given in writing to the party due to receive such notice at (in the
case of a company) its registered office from time to time or (in the
case of an individual) at his address set out in this agreement or such
other address as may have been notified to the other parties in
accordance with this clause 23. Notice shall be delivered personally or
sent by first class prepaid recorded delivery or registered post
(airmail if overseas) or by facsimile transmission and shall be deemed
to be given in the case of delivery personally on delivery and in the
case of posting (in the absence of evidence of earlier receipt) 48
hours after posting (21 days if sent by airmail) and in the case of
facsimile transmission on completion of the transmission provided that
the sender shall have received printed confirmation of transmission.
24. COUNTERPARTS
This agreement may be executed in any number of counterparts each of
which when executed by one or more of the parties hereto shall
constitute an original but all of which shall constitute one and the
same instrument.
25. THIRD PARTY RIGHTS
A person who is not party to this agreement shall have no right under
the Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of
this agreement. This clause does not affect any right or remedy of any
person which exists or is available otherwise than pursuant to that
Act.
26. GOVERNING LAW AND DISPUTE RESOLUTION
26.1 This agreement shall be governed by and construed in
accordance with the laws of England.
26.2 Any dispute arising out of or in connection with this
agreement, including any question regarding its existence,
validity or termination, shall be referred to and finally
resolved by arbitration administered by, and conducted under
the rules of, the London Court of International Arbitration.
The arbitration tribunal shall consist of a sole arbitrator
selected in accordance with such rules. The place of
arbitration shall be London.
26.3 To the extent that clause 26.2 does not apply for whatever
reason or the parties agree that clause 26.2 does not apply,
the parties irrevocably agree that the courts of England shall
have exclusive jurisdiction to settle any dispute which may
arise out of or in connection with this agreement and that
accordingly, any suit, action or proceedings arising out of or
in connection with this agreement shall be brought in such
courts.
IN WITNESS of which the parties or their duly authorised representatives have
executed this agreement as a deed.
13
SCHEDULE 1
PART 1
THE COMPANY
1. Registered number: 2511516
2. Date of incorporation: 13 June 1990
3. Place of incorporation: United Kingdom
4. Registered office: Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxx, Xxxxxxxx XX0 0XX
5. Principal business: Software consultancy supply
6. Authorised share capital: (pound)263,500
Description: Ordinary shares of(pound)1 each
Number of shares: 263,500
Issued share capital: (pound)263,500
Description: Ordinary shares of(pound)1 each
Number of shares: 263,500
Amount paid up: Fully paid
7. Directors - full names and usual Xxxxxxx X Xxxxxxx - 3 Blueberry Road,
residential addresses: Bowdon, Xxxxxxxxxx, Xxxxxxxx XX00 0XX
Moray Xxxx - 0 Xxxxxxxx Xxxxx Xxxxxxxxx,
Xxxxxx, Xxxxxxxxxx XX0 0XX
8. Secretary - full name and usual Xxxxxxx X Xxxxxxx as above
residential address:
9. Accounting reference date: 30 June
10. Auditors: BDO Xxxx Xxxxxxx
11. Tax residence: UK
12. Loan facilities:
13. Charges: 27 January 1993 - Legal Mortgage -
National Westminster Bank plc
14
27 November 1998 - Mortgage Debenture -
National Westminster Bank plc
15
PART 2
THE SUBSIDIARIES
NAME AND REGISTERED NO. DATE AND PLACE OF DIRECTORS AND SECRETARY AUTHORISED SHARE ISSUED SHARE PERCENTAGE
INCORPORATION CAPITAL ((POUND) CAPITAL ((POUND) OWNED BY
AND NO.) AND NO.) THE COMPANY
Jade Communications Limited 4 August 1993 Directors: (pound)1,000,000 - (pound)832,223- 100%
(2842141) United Kingdom Xxxxxxx X Xxxxxxx, 1,000,000 ordinary 832,223 ordinary
Moray Xxxx, Xxxx shares of (pound)1 shares of(pound) 1
Brackley
Secretary: Xxxxxxx
Xxxxxxx
Javelin Systems (Europe) Limited 13 March 1998 Directors: (pound)1,000 - 1,000 (pound)1,000 - 1000 100%
(3527168) United Kingdom Xxxxxxx X Xxxxxxx, ordinary shares of ordinary shares of
Moray Xxxx (pound)1 (pound)1
Secretary: Xxxxxxx X
Xxxxxxx
16
SCHEDULE 2
THE WARRANTIES
1. CAPACITY AND OWNERSHIP OF SHARES
1.1 The Vendor has full power and authority and have taken all
action necessary to execute and deliver and to exercise its
rights and perform its obligations under this agreement and
each of the documents in the agreed form to be executed on or
before Completion which constitute valid and binding
obligations on the Vendor in accordance with their terms.
1.2 Neither the Vendor nor any person connected with the Vendor
has any 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 of the
Company.
1.3 The Shares constitute the whole of the allotted and issued
share capital of the Company and have been properly allotted
and issued.
1.4 There is no Encumbrance on, over or affecting the shares or
any of them or the shares in the Subsidiaries or any unissued
shares in the capital of the Company and there is no agreement
or commitment to give or create any Encumbrance or
negotiations which may lead to such an agreement or commitment
and no claim has been made by any person to be entitled to an
Encumbrance in relation thereto.
1.5 The Vendor is entitled to sell and transfer the full legal and
beneficial ownership in the Shares to the Purchaser and such
sale will not result in any breach of or default under any
agreement or other obligation binding upon the Vendor or any
of its property.
1.6 Other than this agreement, there is no agreement, arrangement
or obligation requiring the creation, allotment, issue,
transfer, redemption or repayment of, or the grant to any
person of the right (whether conditional or not) to require
the allotment, issue, transfer, redemption or repayment of,
any shares in the capital of the Company (including, without
limitation, an option or right of pre-emption or conversion).
1.7 There is no litigation, arbitration, prosecution,
administrative or other legal proceedings or dispute in
existence or threatened against the Vendor in respect of the
Shares or the shares in the Subsidiaries or the Vendor's
entitlement to dispose of the Shares or the shares in the
Subsidiaries and there are no facts known to the Vendor which
might give rise to any such proceedings or any such dispute.
1.8 Neither the Shares nor (so far as the Vendor is aware) any of
the Company's assets have been the subject of a transaction at
an undervalue within the meaning of part IX or part VI of the
Insolvency Xxx 0000.
1.9 The Company has not exercised nor purported to exercise or
claim any lien over the Shares and no call on the Shares is
outstanding and all the Shares are fully paid up.
1.10 The Company has not at any time given any financial assistance
in connection with the purchase of shares as would fall within
the provisions of sections 151 to 157 of the 1985 Act.
17
2. ASSETS
So far as the Vendor is aware:
2.1 all the property and assets which are described and included
in the Accounts and/or in the books of account or records of
the Company or which are used in connection with the business
of the Company or which are in the reputed ownership of the
Company or are situated on the Properties are:
2.1.1 legally and beneficially owned by the Company with
good and marketable title free from all questions or
doubts; and/or
2.1.2 in the possession or under the control of the Company
and/or;
2.1.3 free from all Encumbrances and there is not any
agreement or commitment to give or create, and no
claim has been made by any person entitled to any
Encumbrance; and/or
2.1.4 situated in the United Kingdom; and/or
2.2 none of the assets referred to in paragraph 2.1 are the
subject of any assignment, royalty, overriding royalty,
factoring arrangement, leasing or hiring agreement, hire
purchase agreement for payment on deferred terms or any
similar agreement or arrangement.
3. LIABILITIES
Except to the extent disclosed in the Accounts, neither the Vendor nor
any member of the Vendor's Group has created or otherwise caused to be
created any:
3.1 liability, borrowings or indebtedness in the nature of
borrowings;
3.2 guarantee, indemnity or undertaking (whether or not legally
binding); or
3.3 Encumbrance or any obligation (including a conditional
obligation) to create an Encumbrance;
to which the Company is subject or is bound.
18
SCHEDULE 3
COMPLETION
1. The Vendor shall deliver or procure to be delivered to the Purchaser:
1.1 duly executed transfers of the Shares in favour of the
Purchaser or its nominee(s) together with duly executed powers
of attorney or other authorities pursuant to which any
transfers have been executed and evidence to the Purchaser's
satisfaction of the authority of any person signing on its
behalf;
1.2 the relevant share certificates (or an express indemnity in a
form satisfactory to the Purchaser in the event of any found
to be missing) in respect of the Shares;
1.3 the written resignation in the agreed form of Xxxxxxx Xxxxx as
a director of the Company and the Subsidiaries;
1.4 the irrevocable and unconditional deed of release in the
agreed form duly executed on behalf of the Vendor in relation
to the Inter-Company Debt and releasing the Company and/or any
of the Subsidiaries from any liability whatsoever (actual or
contingent) which may be owing to the Vendor or any person
connected with any of it by the Company or any such
Subsidiary;
1.5 the common seal and statutory books (including minute books)
and books of account of the Company and the Subsidiaries made
up to the Completion Date;
1.6 share certificates in respect of all the issued shares of each
of the Subsidiaries held by the Company or any of the
Subsidiaries together with duly executed transfers in blank
and declarations of trust in respect of all such shares as are
beneficially owned by but not registered in the name of the
Company or a Subsidiary;
2. The Vendor shall procure that meetings of the boards of directors of
the Company and each of the Subsidiaries are convened and held at which
resolutions in the form set out in the Completion Board Minutes are
duly passed.
3. The Purchaser shall pay to the Vendor's Solicitors by transfer of funds
through a UK clearing bank the sum of $759,768 representing the net
amount of the aggregate sums payable by, or procured to be paid by the
Purchaser under clauses 3 and 8.1 (total $950,000) less the aggregate
of the sums payable by or procured to be payable by the Vendor under
clauses 8.5 and 8.6 (total $190,232) The receipt of such sum by the
Vendor's Solicitors shall be a sufficient discharge to the Purchaser in
respect of the sums payable under clauses 3 and 8.1 and shall be a
sufficient discharge to the Vendor in respect of the sums payable
pursuant to clauses 8.5 and 8.6 and neither the Purchaser nor the
Vendor shall not be concerned to see to the application of such sums.
19
EXECUTED (but not delivered until the date hereof) as a )
deed by
ASPEON INC. acting by its duly authorised )
representatives: )
Director "Xxxxxxx Xxxxx"
Secretary "Xxxxxx Xxxxxxxxxx"
EXECUTED (but not delivered until the date hereof) as a ) deed by BROOMCO (2647)
LIMITED) acting by two directors ) or one director and the secretary: )
)
Director "Xxxx Xxxxxxxx"
Director/Secretary "Xxxxxxx Xxxxxxx"
20
ANNEXURE A
(AS REFERRED TO IN THE AGREEMENT BETWEEN
ASPEON INC. (1) AND BROOMCO (2647)
LIMITED (2) DATED 2002)
ACCOUNTS
21
