EXHIBIT 4.10B
DATE: 3 OCTOBER, 2004
PARTIES:
(1) G.E. CAPITAL EQUITY INVESTMENTS LIMITED a corporation existing under the
laws of Grand Cayman and having its principal office at Century Yard,
Cricket Square, Xxxxxxxx Drive, PO Box 2681 GT, Xxxxxx Town, Grand
Cayman, Cayman Islands, British West Indies (the "SELLER");
(2) XXXXXX ELECTRONIC ENGINEERING (UK) LIMITED a company incorporated under
the laws of England with registered number 04476161 and having its
registered office at 00 Xxxxxxxxxx Xxxxxxx, Xxxxxx XX0 0XX (the
"Purchaser"); and
RECITALS:
(A) The Seller is the legal and beneficial owner of 2,307,700 series A
preference shares and 343,500 series B preference shares (the "SHARES")
in the issued share capital of Dione plc.
(B) The Seller has agreed to sell and the Purchaser has agreed to purchase
the Shares on the terms and subject to the conditions set out in this
agreement.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Defined terms
In this agreement, the following words and expressions shall have the
following meanings:
"BUSINESS DAY" means a day (excluding Friday and Saturday) on which banks
generally are open in the City of London for the transaction of normal
banking business;
"CA85" means the Companies Act 1985;
"CHAPS" means the clearing houses automated payment system or any other
method of electronic transfer for same-day value;
"COMPANY" means Dione plc, a public company limited by shares and
incorporated in England and Wales with registered number 1790959;
"COMPLETION" means completion of the sale and purchase of the Shares in
accordance with clause 5;
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"COMPLETION DATE" means the date upon which Completion is required to
take place in accordance with clause 5.1;
"ENCUMBRANCE" means any mortgage, charge, pledge, lien, restriction,
assignment, hypothecation, security interest, title retention or any
other agreement or arrangement the effect of which is the creation of
security, or any other interest, equity or other right of any person
(including any right to acquire, option, right of first refusal or right
of pre-emption), or any agreement or arrangement to create any of the
same and "UNENCUMBERED" and "ENCUMBER" shall be construed accordingly;
"GROUP" means the group of companies comprising the Company and its
subsidiaries and "MEMBER OF THE GROUP" shall be construed accordingly;
"OTHER SELLERS" means the Sellers, as that term is defined in the Other
Share Purchase Agreement;
"OTHER SHARES" means the issued shares in the capital of Dione Plc other
than the Shares;
"OTHER SHARE PURCHASE AGREEMENT" means the share purchase agreement dated
on or around the date of this agreement made between the Purchaser,
Xxxxxx Electronic Engineering Limited, Xxxx Xxxxx and the Tamares Capital
Foundation, pursuant to which the Purchaser shall acquire the Other
Shares;
"PURCHASER'S GROUP" means the group of companies comprising the
Purchaser, any holding company from time to time of the Purchaser and any
subsidiary of the Purchaser (including, following Completion, any member
of the Group) or of any such holding company and "MEMBER OF THE
PURCHASER'S GROUP" shall be construed accordingly;
"SELLER'S GROUP" means the group of companies comprising the Seller, any
holding company from time to time of the Seller and any subsidiary of the
Seller or of any such holding company and "MEMBER OF THE SELLER'S GROUP"
shall be construed accordingly;
"SELLER'S SOLICITORS" means Weil, Gotshal & Xxxxxx of London Office, Xxx
Xxxxx Xxxxx, Xxxxxx, XX0X 0XX.
"SHAREHOLDER INDEBTEDNESS" means all Indebtedness outstanding between any
member of the Group and the Seller;
1.2 All references to statutes, statutory provisions or enactments shall
include references to any consolidation, re-enactment, modification or
replacement of the same (made and effective prior to Completion), any
statute, statutory provision or enactment of which it is a consolidation,
re-enactment, modification or replacement and any subordinate legislation
in force prior to Completion under any of the same.
1.3 A company or other entity shall be a "HOLDING COMPANY" for the purposes
of this agreement if it falls within either the meaning attributed to
that term in ss736 and 736A CA85 or the
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meaning attributed to the term "PARENT UNDERTAKING" in s258 CA85, and a
company or other entity shall be a "SUBSIDIARY" for the purposes of this
agreement if it falls within either the meaning attributed to that term
in ss736 and 736A CA85 or the meaning attributed to the term "SUBSIDIARY
UNDERTAKING" in s258 CA85, and the terms "SUBSIDIARIES" and "HOLDING
COMPANIES" are to be construed accordingly.
1.4 Any reference to a document in the "AGREED FORM" is to the form of the
relevant document in the terms agreed between the Seller and the
Purchaser prior to the execution of this agreement and signed or
initialled for identification purposes only by or on behalf of the Seller
and the Purchaser (in each case with such amendments as may be agreed by
or on behalf of the Seller and the Purchaser).
1.5 References to this agreement include the recitals and schedules which
form part of this agreement for all purposes. References in this
agreement to the parties, the recitals, schedules and clauses are
references respectively to the parties and their legal personal
representatives, successors and permitted assigns, the recitals and
schedules to and clauses of this agreement.
1.6 Save where specifically required or indicated otherwise:
1.6.1 words importing one gender shall be treated as importing any gender,
words importing individuals shall be treated as importing
corporations and vice versa, words importing the singular shall be
treated as importing the plural and vice versa, and words importing
the whole shall be treated as including a reference to any part
thereof;
1.6.2 references to a person shall include any individual, firm, body
corporate, unincorporated association, government, state or agency
of state, association, joint venture or partnership, in each case
whether or not having a separate legal personality. References to a
company shall be construed so as to include any company, corporation
or other body corporate wherever and however incorporated or
established;
1.6.3 references to the word "INCLUDE" or "INCLUDING" (or any similar
term) are not to be construed as implying any limitation;
1.6.4 any reference to "WRITING" or "WRITTEN" includes any method of
reproducing words or text in a legible and non-transitory form but,
for the avoidance of doubt, shall not include e-mail;
1.6.5 references to "STERLING" or "(POUND)" or "POUNDS" are to the lawful
currency of the United Kingdom as at the date of this agreement.
References to "DOLLARS" or "US$" are to the lawful currency of the
United States as at the date of this agreement; and
1.6.6 references to times of the day are to that time in London and
references to a day are to a period of 24 hours running from
midnight to midnight.
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1.7 Clause and paragraph headings and the table of contents are inserted for
ease of reference only and shall not affect construction.
1.8 Section 839 Taxes Act is to apply to determine whether one person is
connected with another for the purposes of this agreement.
2. SALE AND PURCHASE OF SHARES
2.1 Sale and purchase of Shares
2.1.1 The Seller shall at Completion sell and the Purchaser (relying on
the warranties set out in clauses 2.6 and 2.7) shall purchase the
entire legal and beneficial ownership in the Shares free from all
Encumbrances.
2.1.2 The Seller covenants with the Purchaser that it has at Completion
full power and the right to sell and transfer the legal and
beneficial title in the Shares on the terms set out in this
agreement.
2.2 The Shares shall be sold together with all rights now or hereafter
attaching to them, including all rights to any dividend or other
distribution declared, made or paid after the date of this agreement.
2.3 The Seller hereby irrevocably waives and agrees to procure the waiver of
any restrictions on transfer (including rights of pre-emption) which may
exist in relation to the Shares, whether under the articles of
association of the Company or otherwise.
2.4 The Purchaser shall not be obliged to complete the purchase of any of the
Shares unless the sale of all the Shares is completed simultaneously in
accordance with this agreement.
2.5 The Seller warrants and represents to the Purchaser that all Shareholder
Indebtedness has been repaid in full prior to the date of this agreement.
2.6 The Seller warrants and represents to the Purchaser that it has full
power and authority to enter into and perform this agreement and that
this agreement constitutes binding obligations on the Seller in
accordance with its terms, subject to any principles of equity or
insolvency law.
2.7 The Purchaser warrants and represents to the Seller that it has full
power and authority to enter into and perform this agreement and that
this agreement constitutes binding obligations on the Purchaser, in
accordance with its terms, subject to any principles of equity or
insolvency law.
2.8 The Purchaser warrants and represents the only payments to which the
Other Sellers are entitled in connection with the sale and purchase of
the Other Shares are those to which the Other Sellers are entitled
pursuant to the terms of the Other Share Purchase Agreement.
2.9 The Purchaser acknowledges that is has no intention to purchase some but
not all of the Other Shares. If the Purchaser exercises its discretion to
complete the purchase of some but not all of
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the Other Shares under the Other Share Purchase Agreement, the Purchaser
shall also complete the purchase of the Shares from the Seller pursuant
to the terms of this agreement.
3. CONSIDERATION
3.1 The consideration payable for the Shares shall be US$21,000,000.00 in
cash.
4. CONDITION
Subject to clause 2.9, Completion is conditional upon the completion of
the sale and purchase of any of the Other Shares pursuant to and in
accordance with the terms of the Other Share Purchase Agreement.
5. COMPLETION
5.1 Completion shall take place immediately following satisfaction or waiver
by the Purchaser of the condition set out in clause 4.
5.2 Completion shall take place at the offices of the Purchaser's Solicitors
when all (but not some only) of the events detailed in this clause 5
shall occur.
5.3 At Completion, the Seller shall deliver (or cause to be delivered) to the
Purchaser the items listed in part 1 of schedule 1 (the Purchaser
receiving those items, where appropriate, as agent of the Company); and
5.4 At Completion, and subject to the Seller complying with its obligations
under clause 5.3, the Purchaser shall do or deliver (or cause to be
delivered) to the Seller the matters or items listed in part 2 of
schedule 1.
5.5 The Seller hereby confirms that the Seller's Solicitors are irrevocably
authorised by the Seller to receive consideration payments on the
Seller's behalf and the receipt by the Seller's Solicitors shall be an
absolute discharge for the Purchaser who shall not be concerned to see to
the application thereof or be answerable for the loss or misapplication
of such sum.
6. ANNOUNCEMENTS
6.1 Subject to the provisions of clauses 6.2 and 6.3, no disclosure or
announcement relating to the existence or subject matter of this
agreement shall be made or issued by or on behalf of the Seller or the
Purchaser or any member of the Group without the prior written approval
of the other party (which approval may be subject to reasonable
conditions but shall otherwise not be unreasonably withheld or delayed)
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6.2 The restrictions set out in clauses 6.1 and 6.2 shall not apply to any
disclosure or announcement if required by any law, securities exchange,
supervisory, regulatory or governmental body applicable to any member of
the Purchaser's Group or of the Seller's Group ("required disclosure").
6.3 Nothing in this agreement will prohibit the Purchaser from making or
sending after Completion any announcement to a customer, client or
supplier of any member of the Group informing it that the Purchaser has
purchased the Shares.
6.4 Subject to the provisions of clauses 6.2 and 6.3, the party making the
communication, which shall include any required disclosure, shall use its
reasonable endeavours to consult with the other party in advance as to
the form, content and timing of the communication.
7. COUNTERPARTS
This agreement may be executed in any number of counterparts and by the
parties to it on separate counterparts and each such counterpart shall
constitute an original of this agreement but all of which together
constitute one and the same instrument. This agreement shall not be
effective until each party has executed at least one counterpart.
8. FURTHER ASSURANCE
The Seller agrees (at its own cost) to perform (or procure the
performance of) all further acts and things, and execute and deliver (or
procure the execution and delivery of) such further documents, as may be
required by law or as the Purchaser may reasonably require, whether on or
after Completion, for the purpose of vesting in the Purchaser the legal
and beneficial ownership of the Shares.
9. VARIATION, WAIVER AND CONSENT
9.1 No variation or waiver of any provision or condition of this agreement
shall be effective unless it is in writing and signed by or on behalf of
each of the parties (or, in the case of a waiver, by or on behalf of the
party waiving compliance).
9.2 Unless expressly agreed, no variation or waiver of any provision or
condition of this agreement shall constitute a general variation or
waiver of any provision or condition of this agreement, nor shall it
affect any rights, obligations or liabilities under or pursuant to this
agreement which have already accrued up to the date of variation or
waiver, and the rights and obligations of the parties under or pursuant
to this agreement shall remain in full force and effect, except and only
to the extent that they are so varied or waived.
9.3 Any consent granted under this agreement shall be effective only if given
in writing and signed by the consenting party and then only in the
instance and for the purpose for which it was given.
10. PURCHASER'S RIGHTS AND REMEDIES
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10.1 No failure or delay by the Purchaser in exercising any right or remedy
provided by law under or pursuant to this agreement shall impair such
right or remedy or operate or be construed as a waiver or variation of it
or preclude its exercise at any subsequent time. No single or partial
exercise of any right or remedy by the Purchaser shall preclude any other
or further exercise of such right or remedy or the exercise of any other
right or remedy.
10.2 The rights and remedies of each party under or pursuant to this agreement
are cumulative, may be exercised as often as considered appropriate and
are in addition to its rights and remedies under general law.
10.3 The rights and remedies of the Purchaser under this agreement shall not
be affected, and the Seller's liabilities under this agreement shall not
be released, discharged or impaired, by completion.
11. ENTIRE AGREEMENT
This agreement represents the whole and only agreement between the
parties in relation to the sale and purchase of the Shares and supersedes
any previous agreement (whether written or oral) between the parties in
relation to the subject matter of this agreement. Each party acknowledges
that in agreeing to enter into this agreement it has not relied on any
representation, warranty, collateral contract or other assurance made
before the signature of this agreement. Each party waives all rights and
remedies which, but for this clause, might otherwise be available to it
in respect of any such representation, warranty, collateral contract or
other assurance. Nothing in this clause shall exclude any liability for,
or remedy in respect of, fraud.
12. NOTICES
12.1 Save as otherwise provided in this agreement, any notice, demand or other
communication ("NOTICE") to be given by any party under, or in connection
with, this agreement shall be in writing and signed by or on behalf of
the party giving it. Any Notice shall be served by sending it by fax to
the number set out in clause 12.3, or delivering it by hand to the
address set out in clause 12.3 and in each case marked for the attention
of the relevant party set out in clause 12.3 (or as otherwise notified
from time to time in accordance with the provisions of this clause 12).
Any Notice so served by fax or hand shall be deemed to have been duly
given or made as follows:
12.1.1 if sent by fax, at the time of transmission; or
12.1.2 in the case of delivery by hand, when delivered;
provided that in each case where delivery by fax or by hand occurs after
6pm on a Business Day or on a day which is not a Business Day, service
shall be deemed to occur at 9am on the next following Business Day.
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12.2 References to time in this clause are to local time in the country of the
addressee.
12.3 The addresses and fax numbers of the parties for the purpose of clause
12.1 are as follows:
12.3.1 Seller
Address:
GE Equity, GE Capital Limited
Clarges House
0-00 Xxxxxxx Xxxxxx
Xxxxxx, X0X 0XX
Fax: x00 (0)00 0000 0000
For the attention of: Xxxxxxxx Xxxxx/Xxxxxxxx Xxxxxxx
12.3.2 Purchaser
Address:
Fax:
12.3.3 For the attention of
12.4 A party may notify all other parties to this agreement of a change to its
name, relevant addressee, address or fax number for the purposes of this
clause 12, provided that, such notice shall only be effective on:
12.4.1 the date specified in the notification as the date on which the
change is to take place; or
12.4.2 if no date is specified or the date specified is less than five
Business Days after the date on which notice is given, the date
following five Business Days after notice of any change has been
given.
12.5 In proving service it shall be sufficient to prove that the envelope
containing such notice was properly addressed and delivered to the
address shown thereon or that the facsimile transmission was made and a
facsimile confirmation report was received, as the case may be.
13. COSTS
Each of the parties shall be responsible for its own legal, accountancy
and other costs, charges, expenses and transfer taxes incurred in
connection with the negotiation, preparation and implementation of this
agreement.
14. THIRD PARTY RIGHTS
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The parties do not intend that any term of this agreement shall be
enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999
by any person who is not a party to this agreement.
15. CONTINUING EFFECT
Each provision of this agreement shall continue in full force and effect
after Completion, except to the extent that a provision has been fully
performed on or before Completion.
16. SEVERABILITY
If any provision of this agreement is held by a court of competent
jurisdiction to be illegal, invalid or unenforceable in any respect under
the law of any jurisdiction, then such provision shall (so far as it is
invalid or unenforceable) be given no effect and shall be deemed not to
be included in this agreement but without invalidating any of the
remaining provisions of this agreement. Any provision of this agreement
held invalid or unenforceable only in part or degree will remain in full
force and effect to the extent not held invalid or unenforceable. The
parties shall then use all reasonable endeavours to replace the invalid
or unenforceable provision(s) by a valid and enforceable substitute
provision the effect of which is as close as possible to the intended
effect of the invalid or unenforceable provision.
17. ASSIGNMENT
17.1 Subject to clause 17.2, no party shall be entitled to assign the benefit
or burden of any provision of this agreement without the prior written
consent of each other party.
17.2 All or any of the Purchaser's rights under this agreement may
(notwithstanding any other provisions contained in this agreement) be
assigned by the Purchaser to any other member of the Purchaser's Group
(or by any such member to or in favour of any other member of the
Purchaser's Group) provided that the assignee remains a member of the
Purchaser's Group and reassigns such rights to a member of the
Purchaser's Group prior to ceasing to be a member of the Purchaser's
Group and so that none of the Purchaser's rights may be enforced by any
assignee who ceases to be a member of the Purchaser's Group.
18. GOVERNING LAW AND SUBMISSION TO JURISDICTION
18.1 This agreement shall be governed by and construed in all respects in
accordance with the laws of England and Wales.
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18.2 The parties to this agreement irrevocably agree that the courts of
England and Wales shall have exclusive jurisdiction over any claim or
matter arising under or in connection with this agreement, including
non-contractual claims, and that accordingly any proceedings in respect
of any such claim or matter may be brought in such court. The parties
waive any objection to the jurisdiction of the English courts on grounds
that they are inconvenient or an inappropriate forum to settle any such
claim or matter arising.
The parties have shown their acceptance of the terms of this agreement by
executing it at the end of the schedules.
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SCHEDULE 1
COMPLETION
PART 1: SELLER'S OBLIGATIONS AT COMPLETION
At Completion, the Seller shall deliver to the Purchaser:
1. xxxx executed transfers of the Shares into the name of the Purchaser or
its nominees together with the relevant share certificates (or
indemnities in respect thereof in the agreed form).
2. a certified copy of the power of attorney under which this agreement and
any of the documents referred to in this schedule are executed or
evidence satisfactory to the Purchaser of the authority of the person
signing on behalf of the Seller;
3. A duly executed irrevocable power of attorney in the agreed form in
respect of the Shares enabling the Purchaser (during the period prior to
the registration of the transfer of the Shares) to exercise all voting
and other rights attaching to the Shares;
4. a duly executed release under seal, in the agreed form, releasing each
number of the Group from any liability whatsoever (whether actual or
contingent) which may be owing to the Seller by the Company, the
Subsidiaries or any of their officers or employees at Completion;
5. a deed of termination of the shareholders agreement between the Seller
and the Other Sellers in relation to the Company and release in the
agreed form duly executed by the Seller; and
6. a copy of a resolution of the board of directors of the Seller (certified
by a duly appointed officer as true and correct) authorising the
execution of and the performance by the Seller of its obligations under
the agreement and each of the other documents to be executed by the
Seller
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PART 2: PURCHASER'S OBLIGATIONS AT COMPLETION
At Completion, the Purchaser shall:
1. pay the Consideration by CHAPS to the Seller's account at Deutsche Bank
Trust Company America, New York (Account Number: 00-000-000, ABA
00000000, Swift Code XXXXXX00);
2. deliver to the Seller a copy of a resolution of the board of directors of
the Purchaser (certified by a duly appointed officer as true and correct)
authorising the execution of and the performance by the Purchaser of its
obligations under this agreement; and
3. deliver to the Seller's Solicitors certified copies of any powers of
attorney under which this agreement is executed or other evidence
satisfactory to the Seller's Solicitors of the authority of the person
signing on the Purchaser's behalf.
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IN WITNESS WHEREOF the Parties hereto have executed this document on the date
appearing at the head hereof
SIGNED by [ ] )
As the duly authorised attorney for )
of G.E. CAPITAL EQUITY INVESTMENTS LIMITED )
Witness Signature:
Witness Name:
Witness Address:
Witness Occupation:
SIGNED by [ ] )
duly authorised for and on behalf )
of XXXXXX ELECTRONIC ENGINEERING (UK) LIMITED )
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