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Exhibit 2.3
December 14, 2006
Asset Sale and Purchase Agreement
relating to
certain assets of McMurdo Limited’s marine
business
McMurdo Limited (1)
Signature Industries Limited (2)
Digital Angel Corporation (3) and
Chemring Group Plc (4)
1
CONTENTS
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Clause
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Page
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1 Definitions and
interpretation
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1
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2 Agreement to Sell and
Purchase
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9
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3 Price
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10
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4 Completion Statement,
Anniversary Statement and Adjustment to the Initial
Price
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10
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5 Conditions
Precedent
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11
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6 Deposit
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14
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7 Exchange
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15
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8 Completion
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15
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9 Conduct of Business
prior to Completion
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17
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10 Warranties
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18
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11 Buyer’s remedies
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18
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12 Property
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19
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13 Employees
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20
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14 Business Contracts
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21
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15 Mutual covenants and
apportionments
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22
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16 Book Debts and Creditors
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24
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17 Obligations of the Seller and Buyer
after Completion
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24
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18 Restrictive Covenants
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25
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19 Confidentiality
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26
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20 Value Added Tax
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26
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21 DA Guarantee
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27
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22 CG Guarantee
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29
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23 Announcements and
publicity
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30
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24 Notices
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30
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25 Successors, assigns and third
parties
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31
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26 Variation
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31
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27 Waiver
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31
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28 Costs
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31
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29 Severance
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31
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30 Further assurance
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32
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31 Entire Agreement
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32
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32 Counterparts
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32
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33 Miscellaneous
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32
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34 Applicable law and jurisdiction and
remedy
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32
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35 Post-completion effect
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33
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Schedule 1
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33
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Apportionment of the Initial Price
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33
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Schedule 2
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34
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Warranties
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34
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Schedule 3
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46
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Limitations to the Warranties
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46
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Schedule 4
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50
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The Employees
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50
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Schedule 5
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51
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The Customer Contracts
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51
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Schedule 6
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53
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The Supplier Contracts
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53
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Schedule 7
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55
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Products
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55
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Schedule 8
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56
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Registered Intellectual Property
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56
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Schedule 9
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57
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The Deferred Price
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57
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Schedule 10
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61
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The Plant
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61
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Schedule 11
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62
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Schedule 12
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63
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Schedule 13
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71
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Schedule 14
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72
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2
This Agreement is dated
December 14, 2006
Parties
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(1)
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McMurdo Limited, a company incorporated in
England (registered number 746603) whose registered office is at
1650 Parkway, Whiteley, Fareham, Hampshire PO15 7AH (the
Seller ).
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(2)
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Signature Industries Limited, a company
incorporated in England (registered number 02800561) whose
registered office is at Tom Cribb Road, Thamesmead, London SE28 0BH
(the Buyer ).
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(3)
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Digital Angel Corporation, a company incorporated
under the laws of the state of Delaware USA whose registered office
is at 490 Villaume Avenue, South St. Paul, Minnesota 55075-2443,
USA ( DA ).
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(4)
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Chemring Group Plc, a company incorporated in
England (registered number 86662) whose registered office is 1650
Parkway, Whiteley, Fareham, Hampshire, PO15 7AH ( CG
).
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Agreed terms:
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1
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Definitions and interpretation
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1.1
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In this Agreement, unless the context otherwise
requires, the following words will have the following
meanings:
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Accounting Date
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31 October 2005;
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Accounts
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the audited financial statements of the Seller
for the accounting reference period ended on the Accounting Date
comprising a balance sheet, profit and loss account, notes, the
directors’ and auditors’ reports a copy of which is
attached to the Disclosure Letter;
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Actual Plant Value
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the aggregate value of the Plant as shown in the
Completion Statement as agreed or determined in accordance with
Schedule 12;
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Actual S&P Value
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the aggregate of the Actual Plant Value and the
Actual Stock Value;
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Actual Stock Value
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the aggregate value of the Stock as shown in the
Completion Statement as agreed or determined in accordance with
Schedule 12;
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AIS Business
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the business of the design, manufacture and sale
of the AIS Products carried on by the Seller at the Transfer
Date;
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AIS Contracts
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those contracts, engagements or orders entered
into on or prior to the Transfer Date by or on behalf of the Seller
with customers for the sale, loan or hire of goods or equipment or
provision of services by the Seller in connection with the AIS
Business;
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AIS Products
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MT-1 transponder, MT-1 VDU Display, MT-2
transponder and M-2 Minimum Keyboard Display;
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Anniversary Adjustment
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the Unused Stock Value less the Zero Valued Used
Stock Value;
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1
3
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Anniversary Date
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the first anniversary of the Completion Date;
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Anniversary Statement
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the anniversary statement prepared in accordance
with clause 4.5 and Schedule 12;
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Assets
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the assets of the Business agreed to be sold and
purchased pursuant to this Agreement as described in clause
2.1;
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Book Debts
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all trade and other debts owing to the Seller on
the Transfer Date;
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Business
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the business of the design, manufacture and sale
of the Products carried on by the Seller at the Transfer Date;
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Business Contracts
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the Customer Contracts, Supplier Contracts, IP
Licences and the Leasing/Hire Agreements;
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Business Day
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any day which is not a Saturday, a Sunday or a
bank or public holiday in England and Wales;
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Business Information
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all information, documentation, papers, books,
records, know-how and techniques (whether or not confidential and
in whatever form held) (if any) which exclusively relate to:
(a) all or any part of the Business and Assets (including all
books, accounts, credit reports, price lists, cost records,
warranty records, work tickets, catalogues, certificates of title
(including all correspondence with the patent and trade mark agents
relating to any registered Business Intellectual Property and all
registration certificates therefor);
(b) any products or services rendered by the Business (including
formulae, designs, processes, specifications, drawings, data,
manuals or instructions, plans, product descriptions, user or test
reports, type approval papers or certificates, instructional and
promotional material and other technical material together with any
plates, blocks, negatives and similar material relating
thereto);
(c) any products or processes which are or were the subject of any
research or development undertaken exclusively by the Business
(whether or not completed or abandoned);
(d) the operations, management, administration, or financial
affairs of the Business (including all employee records and
interview records; and
(e) the sale or marketing of any of the products manufactured
and/or sold or services rendered by the Business including, without
limitation, all customer and supplier names and lists, sales
advertising and marketing information (including without
limitation, targets, sales and market share statistics, market
surveys and reports on research and terms and conditions of sale or
supply), type approvals, licences and national or local
authorisations in respect of the Products;
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2
4
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Business Intellectual
Property
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all Intellectual Property owned or lawfully used
by the Seller exclusively in connection with the Business as
carried on by the Seller as at the Transfer Date including:-
(a) those items of registered Intellectual Property (and
applications therefor) described in Schedule 8;
(b) the Business Information; and
(c) the Business Name
but excluding without limitation any Business Intellectual Property
relating to the Computer System.
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Business Name
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‘McMurdo’ (subject always to the
terms of the Connectors Licence), ‘McMurdo Marine’ and
‘Nova Marine Systems’;
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Buyer’s Group
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the Buyer, its holding company and all companies
and undertakings which now or in the future become subsidiaries or
subsidiary undertakings of the Buyer or of any such holding
company;
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Buyer’s Solicitors
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Kimbells LLP, Power House, Harrison Close,
Knowlhill, Milton Keynes MK5 8PA;
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CAA
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the Capital Allowances Act 2001;
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Completion
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completion of the sale and purchase of the
Business and the Assets in accordance with clause 8;
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Completion Date
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(subject to clause 5.5) the date which is the
earlier of:
(a) 5 Business Days after notice has been given in accordance with
clause 5.2 by the relevant Party that the last unsatisfied
Condition has been satisfied; and
(b) 5 Business Days after the Buyer has waived the last unsatisfied
Condition or Conditions in accordance with clause 5.4
or such other date as the Buyer and the Seller may agree;
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Completion Statement
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the completion statement prepared in accordance
with the clause 4.1 and Schedule 12;
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Computer System
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all computer hardware and associated peripheral
equipment, software, networks and technical and other documentation
related thereto owned or used by the Business including all
arrangements relating to the provision of maintenance and support,
security, disaster recovery, facilities management, bureau and
on-line services to the Business;
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Conditions
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the conditions precedent set out in clause
5.1;
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Connectors Licence
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the trade mark licence dated 18 June 1998
between the Seller (1) and ITW Limited (2), a copy of which is
at Folder 2a Section 14a of the Disclosure Bundle;
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3
5
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Connectors Novation
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the deed of novation in the agreed form to be
entered into between the Seller (1), ITW Limited (2) and the
Buyer (3);
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Creditors
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all trade and other debts, accrued charges and
all other amounts owing by the Seller in connection with the
Business on the Transfer Date;
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Customers
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the persons, firms or companies who or which were
either at the Transfer Date or during the period of 12 months
prior to the Transfer Date a customer of the Business;
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Customer Contracts
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those contracts, engagements or orders entered
into on or prior to the Transfer Date by or on behalf of the Seller
with customers for the sale, loan or hire of goods or equipment or
provision of services by the Seller in connection with and in the
ordinary course of the Business which at the Transfer Date remain
to be performed in whole or in part by the Seller being those
contracts listed in Schedule 5 and any further such contracts
entered into after or on today’s date. For the avoidance of
doubt this excludes the AIS Contracts and the RNLI Contract;
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Deferred Price
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the further price, if any, payable by the Buyer
for the Goodwill calculated in accordance with Schedule 9;
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Deposit
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has the meaning given in clause 3.2.1;
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Disclosure Bundle
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has the meaning given in the Disclosure
Letter;
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Disclosure Letter
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a letter dated the same date as this Agreement
from the Seller to the Buyer;
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Employees
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the persons whose names are set out in
Schedule 4;
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Escrow Agents
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the Buyer’s Solicitors and the
Seller’s Solicitors;
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Escrow Bank
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National Westminster Bank plc, Milton Keynes;
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Escrow Letter
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the letter, in the agreed form, to be signed by
the parties instructing and authorising the Escrow Agents to
establish and operate the Retention Account;
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Excluded Assets
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the following assets which are excluded from the
sale to the Buyer under this Agreement: (i) the Retained
Business; (ii) the Book Debts; (iii) the statutory books
of the Seller; (iv) cash in hand or at the bank and all
cheques and other securities representing the same; (v) any
right to use or continue to use after Completion any trade or
service name or mark of the Seller or any member of the
Seller’s Group other than the Business Names; (vi) the
Property; (vii) the Computer System; (viii) items of
plant and equipment used by the Seller in both the Business and the
AIS Business; and (ix) all assets, property rights and other
interests of the Seller other than the Assets;
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Expert
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has the meaning given in clause 11.4;
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4
6
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Goodwill
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the goodwill custom and connection of the Seller
exclusively in relation to the Business together with the exclusive
right for the Buyer and its successors and assigns to carry on the
Business and use the Business Names respectively to represent
themselves as carrying on the Business in succession to the
Seller;
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Guaranteed Agreements
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has the meaning given in clause 21.1
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HBoS Release
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the release from HBoS in the agreed form;
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Initial Price
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the sum of £3,117,020;
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Initial Plant Value
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the amount specified in Schedule 1 as being
that part of the Initial Price apportioned to the Plant;
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Initial S&P Value
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the aggregate of the Initial Plant Value and the
Initial Stock Value;
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Initial Stock Value
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the amount specified in Schedule 1 as being
that part of the Initial Price apportioned to the Stock;
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Intellectual Property
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patents, know-how, goodwill, registered and
unregistered trademarks and service marks, domain names, registered
designs, design rights, utility models, copyright (including all
such rights in computer software, information and any databases),
database rights, moral rights and topography rights, trade secret
and other similar confidential information, rights in the nature of
unfair competition rights and right to sue for passing off and any
other similar intellectual or commercial right (in each case
whether or not registered or registrable for the full period
thereof and all extensions and renewals thereof), applications for
any of the foregoing and the right to apply for any of the
foregoing in any part of the world and any similar rights situated
in any country;
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Interest Rate
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means 2% above the base rate of the Bank of
England from time to time;
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IP Licences
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means, save for any which are incorporated into
Customer Contracts or Supplier Contracts, any licences,
authorisations and permissions in any form whatsoever whether
express or implied, written or unwritten (a) pertaining to the use,
enjoyment and exploitation by the Seller of any Business
Intellectual Property in connection with the Business as carried on
at the Transfer Date, or (b) granted by the Seller to any
third party including a member of the Seller’s Group in the
course of the Business pertaining to the use, enjoyment and
exploitation by such third party of any Business Intellectual
Property together with any other such licences entered into on or
after today’s date;
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Leasing/Hire Agreements
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those leasing and hire agreements entered into on
or prior to the Transfer Date by or on behalf of the Seller for the
lease or hire of equipment exclusively in connection with and in
the ordinary course of the Business which at the Transfer Date
remain to be performed in whole or in part being those contracts
listed in Schedule 11 and any other leasing or hire agreements
entered into on or after today’s date by the Seller
exclusively in connection with the Business;
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5
7
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Legal Opinion
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the legal opinion in agreed form given in
relation to DA entering into this Agreement;
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Licence
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has the meaning given in clause 12.1;
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Management Accounts
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the accounts comprising a balance sheet as at 24
November 2006 and a profit and loss account for the period
which commenced on 1 August 2006 and ended on 24
November 2006, a copy of which is annexed to the Disclosure
Letter;
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Mandate Letters
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letters from the Buyer’s Solicitors and the
Seller’s Solicitors to the Escrow Bank in the agreed
form;
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NAV 7 Licence
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the ip licence relating to the NAV7 casings and
related tooling to be entered into between the Seller (1) and
the Buyer (2) in the agreed form;
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Novation Agreement
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the novation agreement to be entered into by the
Parties in the agreed form;
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Parties
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the parties to this Agreement (and Party means
any of them depending on the context);
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Patent Assignment
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the patent assignment in the agreed form to be
entered into between the Seller (1) and the Buyer (2);
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Plant
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the plant, equipment (including items of office
equipment used by Employees on a day to day basis other than any
such items which relate to the Computer System) and machinery
wherever situate, including tools and jigs in the possession of
suppliers, belonging to the Seller and used exclusively in
connection with the Business being those items listed in
Schedule 10 together with any other such items acquired by the
Seller after today’s date but before Completion and less any
items on such list which are disposed of by the Seller after
today’s date but before Completion;
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Post Exchange Breach
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has the meaning given in clause 10.6;
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Price
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the total purchase price payable by the Buyer to
the Seller as referred to in clause 3.1;
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Products
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the products listed at Schedule 7;
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Property
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the property known as Silver Point, Airport
Service Road, Portsmouth PO3 5PB and any part or parts
thereof;
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Retained Business
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any businesses (other than the Business) carried
on or previously carried on by the Seller (including the AIS
Business and the carrying out of its obligations pursuant to the
RNLI Contract);
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Retention
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has the meaning given in clause 3.2.3;
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Retention Account
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the joint interest bearing account to be
established in accordance with the Escrow Letter;
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Retention Account
Opening Form
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the form opening the Retention Account in the
agreed form;
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6
8
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RNLI Contract
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the development and licensing agreement dated 19
September 2005 between the Seller (1) and RNLI (2) , a
copy of which is at Folder 2a, Section 8 of the Disclosure
Bundle;
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Seller’s Solicitors
Account
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the Seller’s Solicitors client account held
at Lloyds TSB Bank plc, sort code 30-96-68, account number 01364135
(or such other account as the Seller may notify the Buyer in
writing);
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Security Interest
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any encumbrance, mortgage, charge, assignment for
the purpose of security, pledge, lien, right of set-off, retention
of title or hypothecation for the purpose, or which has the effect,
of granting security interest of any kind whatsoever and any
agreement, whether conditional or otherwise, to create any of the
foregoing;
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Seller’s Group
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the Seller, its holding company and all companies
and undertakings which now or in the future become subsidiaries or
subsidiary undertakings of the Seller or of any such holding
company;
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Seller’s Scheme
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the pension scheme known as the Chemring Group
Staff Pension Scheme;
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Seller’s Solicitors
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Bond Pearce LLP of Oceana House, 39-49 Commercial
Road, Southampton SO15 1GA;
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Special Provisions Order
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the VAT (Special Provisions) Order 1995 SI
1995/1268;
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Stock
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the stock-in-trade exclusively relating to the
Business at the Transfer Date including (without limitation) raw
materials, goods and other assets purchased for resale, stores,
component parts, work in progress, together with finished products
all exclusively relating to the Business, including those items
listed in Schedule 14 (to the extent they have not been used
or otherwise disposed of by the Buyer after today’s
date);
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Supplier Contracts
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those contracts, engagements or orders entered
into on or prior to the Transfer Date by or on behalf of the Seller
for the supply or sale of goods or services to the Seller
exclusively in connection with and in the ordinary course of the
Business which at the Transfer Date remain to be performed in whole
or in part including those contracts listed in Schedule 6. For the
avoidance of doubt this excludes any contracts between the Seller
and a third party supplier which relate to services provided by the
Seller to the Buyer under the Transitional Services Agreement;
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Tax or Taxation
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all taxes, levies, duties, imposts, charges,
contributions and withholdings of any nature whatsoever or
wheresoever imposed and all penalties, fines, charges, surcharges
and interest relating thereto;
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Trade Mark Assignment
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the trade mark assignment in the agreed form to
be entered into between the Seller (1) and the Buyer (2)
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Transfer Date
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the close of business on the Completion Date;
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Transitional Services
Agreement
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an agreement in respect of certain transitional
services between the Seller and the Buyer in the agreed form;
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7
9
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TULRA
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the Trade Union and Labour Relations
(Consolidation) Act 1992;
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TUPE
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the Transfer of Undertakings (Protection of
Employment) Regulations 2006 (as amended);
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Unused Stock
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items of Stock which have not been used or
otherwise disposed of by the Buyer by the Anniversary Date;
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Unused Stock Value
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the aggregate value of the Unused Stock as shown
in the Anniversary Statement as agreed or determined in accordance
with Schedule 12 and clause 4.10;
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US Coastguard Contract
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US Coast Guard contract ref HSCG 23-06-R-DNQ159
dated 27 September 2006 between United States Coast Guard
(1) and the Seller (2) a copy of which is at Folder 2a,
Section 6 of the Disclosure Bundle;
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VAT
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Value Added Tax or any equivalent tax outside of
the United Kingdom;
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VATA
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Valued Added Tax Act 1994;
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Warranties
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the warranties set out in clause 10 and
Schedule 2.
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Zero Valued Used Stock
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items of Stock which were given a value of zero
when calculating the Actual Stock Value and which have been used by
the Buyer after Completion;
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Zero Valued Used Stock
Value
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the aggregate value of the Zero Valued Used Stock
as shown in the Anniversary Statement as agreed or determined in
accordance with Schedule 12 and clause 4.10;
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1.2
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In this Agreement, unless the context requires
otherwise:
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1.2.1
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a document in the agreed form is a
document which has been agreed by the parties before today’s
date and which has been initialled by them or on their behalf for
identification;
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1.2.2
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references to a Clause or Schedule are to a
clause of or a schedule to this Agreement; references to this
Agreement include its schedules; and references in a Schedule to a
paragraph are to a paragraph of that Schedule;
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1.2.3
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all words and terms defined in a Schedule have
the same meaning when used elsewhere in this Agreement;
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1.2.4
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references to this Agreement or any other
document are to this Agreement or that document as amended from
time to time;
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1.2.5
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the singular includes the plural and vice versa;
references to any gender include every gender, and references to
persons include corporations, partnerships and other unincorporated
associations or bodies of persons;
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1.2.6
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all headings are for convenience, have no legal
effect and should be ignored in the interpretation of this
Agreement;
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1.2.7
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the words other , including and
in particular do not limit the generality of any preceding
words;
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8
10
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1.2.8
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any obligation not to do anything is deemed to
include an obligation not to suffer, permit or cause that thing to
be done if it is within the power of the relevant person to prevent
that thing being done;
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1.2.9
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agreements includes any agreement,
arrangement, contract, commitment, scheme or understanding whether
legally binding or not and references to being party to an
agreement will be construed accordingly;
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1.2.10
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enactment means any statute or
statutory provision (of the United Kingdom or elsewhere) and any
subordinate legislation made under any statute or statutory
provision;
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1.2.11
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a reference to any enactment includes a reference
to:
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(a)
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any enactment which that enactment has directly
or indirectly replaced (with or without modification);
and
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(b)
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that enactment as re-enacted, replaced or
modified at any time except to the extent that the liability of any
party would be increased or extended as a result.
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1.2.12
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subsidiary and holding company have
the meanings given to them by section 736 Companies Act 1985 and
subsidiary undertaking and parent undertaking will
have the meanings given to them by section 258 Companies Act 1985;
and
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1.2.13
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associate has the meaning given to it
by section 435 Insolvency Act 1986 and a person is regarded as
associated with any person which is an associate of his and with
any company of which any director is an associate of his.
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2
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Agreement to Sell and Purchase
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2.1
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With effect from the Transfer Date the Seller
will sell and the Buyer (relying on the Warranties) will purchase
the Business as a going concern together with the following
assets:
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2.1.4
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the benefit (subject to the burden) of the
Business Contracts;
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2.1.5
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the Business Intellectual Property;
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2.1.6
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the Business Information; and
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2.1.7
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all the Seller’s rights against third
parties including all rights under any of the warranties,
conditions, guarantees or indemnities or under the Sale of Goods
Act 1979 exclusively relating to any of the Assets and the benefit
of all sums to which the Seller is entitled from third parties or
insurers in respect of damage to those Assets listed in clauses
2.1.1 to 2.1.6 (inclusive);
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2.2
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The Seller will sell the Business and the Assets
with full title guarantee free from all Security
Interests.
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2.3
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Title to and beneficial ownership of each of the
Assets will pass to the Buyer on Completion.
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9
11
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2.4
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For the avoidance of doubt this Agreement shall
not operate to assign to the Buyer any liabilities or obligations
except as specifically stated in this Agreement or any documents
which are in the agreed form.
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3.1
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The price is the total of the Initial Price (as
adjusted in accordance with clause 4 and Schedule 12) and the
Deferred Price.
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3.2
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The Initial Price will be paid as
follows:
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3.2.1
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£250,000 of the Initial Price (
Deposit ) will be paid on the date of this Agreement in
accordance with clause 6.1;
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3.2.2
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£2,792,020 of the Initial Price will be
paid on Completion in accordance with clause 8.1.2(b);
and
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3.2.3
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£75,000 of the Initial Price (
Retention ) will be paid on Completion into the Retention
Account in accordance with clause 8.1.2(c).
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3.3
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The provisions of Schedule 13 apply to the
Retention once it has been deposited in the Retention Account. The
Buyer and the Seller shall instruct their respective solicitors to
open the Retention Account using the Retention Account Opening Form
and Mandate Letters.
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3.4
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The provisions of Schedule 9 apply to the
calculation and payment of the Deferred Price.
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3.5
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Subject to adjustment in accordance with clause
4, the Initial Price will be apportioned as set out in Schedule
1.
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4
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Completion Statement, Anniversary Statement
and Adjustment to the Initial Price
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4.1
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The Buyer and the Seller will ensure that the
Completion Statement is prepared in accordance with
Schedule 12.
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4.2
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If the Actual S&P Value:
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4.2.1
|
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is equal to the Initial S&P Value there shall
be no adjustment of the Initial Price;
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4.2.2
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is less than the Initial S&P Value the Seller
will repay to the Buyer so much of the Initial Price as is equal to
the deficiency, provided always that the Seller shall not be
required pursuant to this clause to repay an amount which is more
than Initial S&P Value; or
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4.2.3
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is more than the Initial S&P Value the Buyer
will pay to the Seller an additional amount of consideration, such
amount being equal to the excess.
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4.3
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Any payment required to be made under clause
4.2.2 or 4.2.3 will be made in cleared funds by electronic funds
transfer within five Business Days of the Completion Statement
being agreed, deemed agreed or determined by the Independent
Accountants in accordance with Schedule 12 and will be paid,
in the case of clause 4.2.2, to the Buyer’s Solicitors and in
the case of clause 4.2.3, to the Seller’s Solicitors. The
relevant Solicitors are hereby authorised to receive the same and
their receipt will be an absolute discharge of the Seller or the
Buyer (as the case may be).
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4.4
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If any Party fails to make full payment under
clause 4.2, the outstanding balance of that payment from time to
time will bear interest (as well after as before judgment) from the
due date for payment in accordance with clause 4.3 to the actual
date of payment (both dates inclusive) at the rate of 4 % per annum
above the base rate of National Westminster Bank plc from time to
time.
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10
12
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4.5
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The Buyer and the Seller will ensure that the
Anniversary Statement is prepared in accordance with
Schedule 12 and clause 4.10.
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4.6
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If the Anniversary Adjustment:
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4.6.1
|
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is zero there shall be no further adjustment of
the Initial Price;
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4.6.2
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is more than zero the Seller will repay to the
Buyer so much of the Initial Price as is equal to the excess,
provided always that the Seller shall not be required pursuant to
this clause to repay an amount which is more than Actual Stock
Value; or
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4.6.3
|
|
is less than zero the Buyer will pay to the
Seller an additional amount of consideration, such amount being
equal to the excess.
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4.7
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Subject to clause 4.8, any payment required to be
made under clause 4.6.2 or 4.6.3 will be made in cleared funds by
electronic funds transfer within five Business Days of the
Completion Statement being agreed, deemed agreed or determined by
the Independent Accountants in accordance with Schedule 12 and
will be paid, in the case of clause 4.6.2, to the Buyer’s
Solicitors and in the case of clause 4.6.3, to the Seller’s
Solicitors. The relevant Solicitors are hereby authorised to
receive the same and their receipt will be an absolute discharge of
the Seller or the Buyer (as the case may be).
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4.8
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Payment obligations under clause 4.6 will first
be satisfied from the Retention Account in accordance with
Schedule 13.
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4.9
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If any Party fails to make full payment under
clause 4.6, the outstanding balance of that payment from time to
time will bear interest (as well after as before judgment) from the
due date for payment in accordance with clause 4.7 to the actual
date of payment (both dates inclusive) at the rate of 4 % per annum
above the base rate of National Westminster Bank plc from time to
time.
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4.10
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In the period between Completion and the
Anniversary Date the Buyer shall always use the items of Stock
before using similar items acquired by it after Completion. For the
purpose of the Anniversary Statement if the Buyer has failed to
comply with its obligation under this clause the Unused Stock, the
Zero Valued Used Stock, the Unused Stock Value, Zero Valued Used
Stock and the Anniversary Adjustment shall be calculated on the
basis that they are what they would have been had the Buyer
complied with its obligation under this clause.
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4.11
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The Buyer and the Seller agree that when it is
agreed they will both initial the list of Stock prepared for the
purpose of the Completion Statement. A copy of such Stock list will
be kept by both of them so that it is available for the purpose of
the Anniversary Statement. The Buyer and the Seller acknowledge
that, subject only to paragraph 6.2 of part 3 of Schedule 12,
for the purposes of the Anniversary Statement such Stock list will
be conclusive evidence of the Stock.
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5.1
|
|
Completion of this Agreement is conditional upon
the Buyer or Seller :
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5.1.1
|
|
receiving the consent of Davis Instruments Corp
to the assignment (conditional on Completion taking place) of the
agreement dated 1 December 2002 between the Seller
(1) and Davis Instruments Corp (2) (a copy of which is at
Folder 2c, Section D.1 of the Disclosure Bundle) from the
Seller to the Buyer in accordance with the terms of such agreement
or in such other manner or form as the Seller and Buyer may
agree;
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11
13
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5.1.2
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|
receiving the consent of Simrad Limited to the
assignment (conditional on Completion taking place) of the
agreement dated 7 February 2003 between the Seller
(1) and Simrad Limited (2) (a copy of which is at Folder 2a,
Section 7 of the Disclosure Bundle) from the Seller to the
Buyer in accordance with the terms of such agreement or in such
other manner or form as the Seller and Buyer may agree;
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5.1.3
|
|
receiving the consent of Furuno Electric Co.
Limited to the assignment (conditional on Completion taking place)
of the agreement dated 30 June 2005 between the Seller
(1) and Furuno Electric Co. Limited (2) (a copy of which is at
Folder 2a, Section 5 of the Disclosure Bundle) from the Seller
to the Buyer in accordance with the terms of such agreement or in
such other manner or form as the Seller and Buyer may
agree;
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5.1.4
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|
receiving confirmation from Kelvin Hughes Limited
that other than as a result of matters which only become apparent
after Completion the identity of the Buyer will not lead it to
exercise its rights (under the second paragraph of clause 11.1.3 of
such agreement) to terminate the agreement dated 30 June 2005
between the Seller (1) and Kelvin Hughes Limited (2) (a copy
of which is at Folder 2a, Section 4 of the Disclosure
Bundle);
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5.1.5
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receiving confirmation from Mitsubishi (or its
relevant group company or agent) that: (i) the patent licence
(a copy of which is at Folder 2b, Section 6 of the Disclosure
Bundle) has been assigned or will be assigned to the Buyer subject
only to the Buyer or Seller confirming that the Business and Assets
have transferred to the Buyer; or (ii) a replacement of such
patent licence has been granted to or will be granted to the Buyer
subject only to the Buyer or Seller confirming that the Business
and Assets have transferred to the Buyer;
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5.1.6
|
|
receiving confirmation from the Seller that the
two software bugs referred to at Disclosure 41 of the Disclosure
Bundle have been resolved and that the testing carried out by the
Seller to check that they have been resolved the Seller has carried
out following the appropriate testing procedures included in the
Seller’s quality approved system;
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5.1.7
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|
receiving confirmation from the relevant
authority or authorities that the UK product approvals which the
Seller has in place at today’s date in relation to each of
the Products (such approvals being listed in the document at Folder
2a, Section 13c of the Disclosure Bundle) ( UK
Approvals ) either have been issued or will be issued to the
Buyer subject only to the relevant authority or authorities
receiving confirmation that the Business and Assets have
transferred to the Buyer;
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5.1.8
|
|
receiving confirmation from the relevant
authority or authorities that the Danish product approvals which
the Seller has in place at today’s date in relation to each
of the Products (such approvals being listed in the document at
Folder 2a, Section 13c of the Disclosure Bundle) either have
been issued or will be issued to the Buyer subject only to the
relevant authority receiving confirmation that the Business and
Assets have transferred to the Buyer and/or confirmation that any
of the UK Approvals specified by such authority or authorities have
been issued;
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5.1.9
|
|
receiving confirmation from the relevant
authority or authorities that the French product approvals which
the Seller has in place at today’s date in relation to each
of the Products (such approvals being listed in the document at
Folder 2a, Section 13c of the Disclosure Bundle) either have
been issued or will be issued to the Buyer subject only to the
relevant authority receiving confirmation that the Business and
Assets have transferred to the Buyer and/or confirmation that any
of the UK Approvals specified by such authority or authorities have
been issued;
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12
14
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5.1.10
|
|
receiving confirmation from the relevant
authority or authorities that the German product approvals which
the Seller has in place at today’s date in relation to each
of the Products (such approvals being listed in the document at
Folder 2a, Section 13c of the Disclosure Bundle) either have
been issued or will be issued to the Buyer subject only to the
relevant authority receiving confirmation that the Business and
Assets have transferred to the Buyer and/or confirmation that any
of the UK Approvals specified by such authority or authorities have
been issued;
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5.1.11
|
|
receiving confirmation from the relevant
authority or authorities that the Greek product approvals which the
Seller has in place at today’s date in relation to each of
the Products (such approvals being listed in the document at Folder
2a, Section 13c of the Disclosure Bundle) either have been
issued or will be issued to the Buyer subject only to the relevant
authority receiving confirmation that the Business and Assets have
transferred to the Buyer and/or confirmation that any of the UK
Approvals specified by such authority or authorities have been
issued;
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5.1.12
|
|
receiving confirmation from the relevant
authority or authorities that the Italian product approvals which
the Seller has in place at today’s date in relation to each
of the Products (such approvals being listed in the document at
Folder 2a, Section 13c of the Disclosure Bundle) either have
been issued or will be issued to the Buyer subject only to the
relevant authority receiving confirmation that the Business and
Assets have transferred to the Buyer and/or confirmation that any
of the UK Approvals specified by such authority or authorities have
been issued;
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5.1.13
|
|
receiving confirmation from the relevant
authority or authorities that the Singaporean product approvals
which the Seller has in place at today’s date in relation to
each of the Products (such approvals being listed in the document
at Folder 2a, Section 13c of the Disclosure Bundle) either
have been issued or will be issued to the Buyer subject only to the
relevant authority receiving confirmation that the Business and
Assets have transferred to the Buyer and/or confirmation that any
of the UK Approvals specified by such authority or authorities have
been issued;
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5.1.14
|
|
receiving confirmation from the relevant
authority or authorities that the United States (FFC) product
approvals which the Seller has in place at today’s date in
relation to each of the Products (such approvals being listed in
the document at Folder 2a, Section 13c of the Disclosure
Bundle) either have been issued or will be issued to the Buyer
subject only to the relevant authority receiving confirmation that
the Business and Assets have transferred to the Buyer and/or
confirmation that any of the UK Approvals specified by such
authority or authorities have been issued;
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5.1.15
|
|
receiving confirmation from the relevant
authority or authorities that the Spanish product approvals which
the Seller has in place at today’s date in relation to each
of the Products (such approvals being listed in the document at
Folder 2a, Section 13c of the Disclosure Bundle) either have
been issued or will be issued to the Buyer subject only to the
relevant authority receiving confirmation that the Business and
Assets have transferred to the Buyer and/or confirmation that any
of the UK Approvals specified by such authority or authorities have
been issued; and
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5.1.16
|
|
receiving confirmation from the relevant
authority or authorities that the Netherlands product approvals
which the Seller has in place at today’s date in relation to
each of the Products (such approvals being listed in the document
at Folder 2a, Section 13c of the Disclosure Bundle) will be
issued to the Buyer subject only to the relevant authority
receiving confirmation that the Business and Assets have
transferred to the Buyer and/or confirmation that any of the UK
Approvals specified by such authority or authorities have been
issued.
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5.2
|
|
The Seller and Buyer shall respectively use all
reasonable endeavours to ensure the satisfaction of all the
Conditions as soon as possible so far as lies within their
respective power so to do. As soon as a Condition is satisfied the
Party who received notice from the relevant third party that it has
been will promptly give written notice of this fact to the Buyer or
Seller (as the case may be).
|
13
15
|
5.3
|
|
All costs and expenses relating to obtaining the
consents or approvals or other matters referred to in clauses 5.1.1
to 5.1.16 will be borne by the Seller and the Seller shall
indemnify the Buyer and keep it indemnified against any such costs
and expenses provided always that the obligations of the Seller
under this clause 5.3 shall immediately cease in relation to any
consent or approval or other matter if the Buyer waives the
Condition relating to such consent or approval or other
matter.
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5.4
|
|
The Buyer may waive in writing all or any of the
Conditions.
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|
5.5
|
|
If all the Conditions are not satisfied or waived
in accordance with clause 5.4 on or before 16 April 2007 (or
such other date as the Seller and the Buyer in their absolute
discretion may agree in writing) this Agreement (save for clauses
5.6, 6 (in relation to to whom the Deposit belongs)and 23 which
shall remain in force) shall become null and void and no party
shall be entitled to make a claim against any other party in
connection with this Agreement save for any claim which arises in
respect of clauses 5.6, 6 (in relation to to whom the Deposit
belongs) and 23.
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5.6
|
|
If any of the approvals referred to in this
clause 5 are granted to the Buyer and for whatever reason
Completion does not take place, the Buyer will (at the
Buyer’s expense) do, execute and perform and will procure to
be done, executed and performed all such acts, deeds, documents and
things as the Seller may require to ensure that any such approvals
are reissued in the name of the Seller (or in such name as it may
direct) and that they cease to be issued in the name of the Buyer.
As security for the performance of its obligations under this
clause 5.6, the Buyer hereby irrevocably and unconditionally
appoints any director (for the time being) of the Seller severally
as its attorney with full power and authority in the Buyer’s
name and on its behalf to do, sign and execute all acts, documents
or deeds that the attorney, in its absolute discretion, considers
necessary or desirable for the performance of these
obligations.
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6.1
|
|
Upon signing this Agreement the Buyer will pay
the Deposit by electronic transfer to the Seller’s Solicitors
Account and the Seller’s Solicitors are hereby authorised to
receive the same and whose receipt will be an absolute discharge of
the Buyer.
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6.2
|
|
If all the Conditions are satisfied and the Buyer
fails to complete the purchase of the Business and the Assets under
clause 8 on the Completion Date (other than where it properly
rescinds this Agreement pursuant to clause 8.5 or it properly
terminates this Agreement pursuant to clause 11.1.2) then the
Seller shall be entitled to retain the Deposit and this Agreement
(save for clause 5.6, this clause 6 (in relation to to whom the
Deposit belongs) and clause 23 which shall remain in force) shall
become null and void and no Party shall be entitled to make a claim
against any other party in connection with this Agreement save for
any claim which arises in respect of clause 5.6, this clause 6 (in
relation to to whom the Deposit belongs)and clause 23.
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6.3.1
|
|
all the Conditions are not satisfied or waived in
accordance with clause 5.4 on or before 16 April 2007 (or such
other date as the Seller and the Buyer in their absolute discretion
may agree in writing); or
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6.3.2
|
|
the Buyer rescinds the Agreement pursuant to
clause 8.5; or
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6.3.3
|
|
the Buyer terminates the Agreement pursuant to
clause 11.1.2;
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