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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED):
DECEMBER 15, 1999 (DECEMBER 1, 1999)
UNICOMP, INC.
(Exact name of registrant as specified in its charter)
COMMISSION FILE NUMBER: 0-15671
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<S> <C>
COLORADO 84-1023666
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
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1850 PARKWAY PLACE, SUITE 925
MARIETTA, GEORGIA 30067
(Address of principal executive offices including zip code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (770) 424-3684
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On December 1, 1999, UniComp, Inc. (the "Company") completed the sale of certain
assets (the "Assets") of the Company's Northern Ireland subsidiary, ICS UniComp
Limited, to ZEC Limited (the "Sale"). ICS UniComp Limited is an information
technology service provider. The Assets disposed of include, but are not limited
to, the following: plant machinery and motor vehicles, computer and office
equipment, furniture, premises, tradename, and intellectual property rights.
Accounts receivable,, accounts payable, and all other liabilities as of
December 1, 1999 were retained by ICS UniComp Limited. The Sale was consummated
in accordance with the terms of that certain Agreement for the Sale and Purchase
of the Goodwill Business and Assets of ICS UniComp Limited between ICS UniComp
Limited, UniComp Holdings (UK) Limited, ICS Computing Group Limited, UniComp,
Inc., and ZEC Limited, dated December 1, 1999 (the "Sale Agreement").
The consideration paid to the Company in connection with the Sale was as
follows: (i) approximately 4.9 million pounds sterling, of which 0.2 million
pounds sterling is being withheld pending final calculation of certain
completion accounts set forth in detail in the Sale Agreement.
The total consideration paid in the Sale was determined through arm's length
negotiations between the parties. Neither the Company nor ICS UniComp Limited,
nor any of their affiliates had, or to the knowledge of the Company or ICS
UniComp Limited, did any director or officer or any associate of any such
director or officer of the Company nor ICS UniComp Limited, have any material
relationship with ZEC Limited prior to the Sale.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Not Applicable.
(b) Pro Forma Financial Information
The Pro forma financial statements will be provided within 60 days of
the date of filing this Form 8-K.
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<CAPTION>
(c) Exhibit No. Description
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<S> <C>
Exhibit 2.1 Agreement for the Sale and
Purchase of the Goodwill Business
and Assets of ICS UniComp Limited,
dated December 1, 1999.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
UNICOMP, INC.
/s/ Hugh Moore December 15, 1999
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Hugh Moore Date
Vice President of Finance
Principal Accounting Officer
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Exhibit 2.1
DATED THE 1ST DAY OF DECEMBER, 1999
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<S> <C>
ICS UNICOMP LIMITED (1)
ICS COMPUTING GROUP LIMITED,
UNICOMP HOLDINGS (UK) LIMITED,
ICS UNICOMP LIMITED AND
UNICOMP INC (2)
ZEC LIMITED (3)
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AGREEMENT
FOR THE SALE AND PURCHASE OF THE GOODWILL BUSINESS
AND ASSETS OF ICS UNICOMP LIMITED
L'ESTRANGE & BRETT
ARNOTT HOUSE
12/16 BRIDGE STREET
BELFAST
BT1 1LS
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CONTENTS
Clause Heading Page
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<S> <C>
1 Purpose and definitions 6
2 Vendor's Unicomp's Inc's ICS Computing's
Purchaser's representations 13
3 Supplemental Agreements 13
4 Sale of the Business and Assets 14
5 Provisional Consideration 15
6 Apportionments 16
7 Name Change Resolutions 16
8 Completion 16
9 Value Added Tax 18
10 Post-Completion matters (including 19
announcements and circulars)
11 Outstanding contracts, debtors and creditors 20
12 Indemnities 22
13 Employees 23
14 Restrictive covenants 25
15 Restrictive Trade Practices Act 1976 29
16 Representations and Warranties 30
17 Claims for misrepresentation and breach of warranty or undertaking 31
18 Time of the Essence 33
19 Continuing effects of this Agreement 33
20 Releases, etc., by the Purchaser 33
21 Other provisions 33
22 Notices 34
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<S> <C> <C>
23 Choice of law, submission to 35
jurisdiction and address for service
24 Costs 35
25 Stamp Duty 35
SCHEDULE
1 The Properties 36
Part A The Leasehold Properties
Part B The Newbury Property
Part C Sale of the Airport Road West Property
2 Apportionment of the consideration for 39
the Properties
3 Assets being sold (exclusive of 40
assets comprised in schedules 1
4 and 5)
4 Intellectual Property Rights 41
Business names
Other IP Rights
5 Agreements and licences 42
Part A The Leasing Agreements
Part B Other agreements
6 Assets excluded from the sale 44
7 Employment 45
The Transferring Employees
8 Pension Arrangements 46
9 Warranties 56
10 Warrantors' Protection Provisions 78
11 Completion Accounts 82
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APPENDICES
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<S> <C>
[1] Management Accounts
[2] Service Agreements
[3] Supplier/Customer Letters
[4] Employee Letters
[5] Leasing Agreements
[6] Name Change Resolutions
[7] Contracts
[8] ICS Product List
[9] Motor Vehicles owned/leased by the Vendor
[10] Transferring Employees
[11] Purchase Price Apportionment
[12] Assignment of Goodwill
[13] Assignment of Intellectual Property Rights
[14] Novation Agreement
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<CAPTION>
AGREED FORM DOCUMENTS
Document Clause
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<S> <C>
Disclosure letter 1.2
Name Change Resolutions 1.2
Service Agreements 8.1(a)(vi)
Letters to suppliers and customers 10.2
Employees letters 13.6
Management Accounts Schedule 9
para 4.2
Assignment of Goodwill 1.2
Assignment of Intellectual Property Rights 1.2
Novation Agreement 1.2
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THIS AGREEMENT is dated the 1st day of December, 1999 and is made BETWEEN:
(1) ICS UNICOMP LIMITED (No. 2793297) whose registered office is
at Acre House, 11-15 William Road, London, NW1 3ER ("the
Vendor" which expression shall include its successors and
Permitted Assigns);
(2) THE VENDOR, ICS COMPUTING GROUP LIMITED (No: 2744678 whose
registered office is at Acre House, 11-15 William Road,
London, NW1 3ER, UNICOMP HOLDINGS (UK) LIMITED (No. NI
2777955) whose registered office is also at Acre House,
aforesaid, and UNICOMP INC. whose address for the purposes of
this Agreement is 1850, Parkway Place, Suite 925 Marietta,
Georgia 30067, USA ("Inc") ("the Warrantors" and each a
"Warrantor" which expressions shall include each of their
respective successors and Permitted Assigns)
(3) ZEC LIMITED (No: NI 36763) whose registered office is at
Arnott House, 12/16 Bridge Street, Belfast, BT1 1LS ("the
Purchaser" which expression shall include its successors and
Permitted Assigns).
NOW IT IS HEREBY AGREED as follows:
1 PURPOSE AND DEFINITIONS
1.1 This is an Agreement for the sale and purchase of the Business (as
defined in clause 1.2) and certain assets used in connection with the
Business.
1.2 In this Agreement unless the context otherwise requires:
(a) the following expressions have the following meanings:
"THE ACCOUNTS" means the Vendor's audited accounts prepared in
compliance with section 226 CA 1985 for the Vendor's financial
year ended on the Accounts Date (including the notes to and
Auditor's Report on those accounts and the Directors' Report
for that year);
"THE ACCOUNTS DATE" means 28th February 1999;
"THE AIRPORT ROAD WEST PROPERTY" means the premises occupied
by the Vendor under the Lease referred to in Schedule 1 Part A
and to be assigned to the Purchaser on Completion;
"THE ASSETS" means the property assets and rights of the
Vendor used in or for the purposes of the Business and to be
purchased by the Purchaser as described in clause 4.1;
"BUSINESS DAY" means a day on which banks are open for
business in Belfast;
"THE BALLYCLARE PROPERTY" means the premises occupied by the
Vendor, referred to in Schedule 1 Part A and which are to be
the subject of a new Lease to be entered into by the Purchaser
following Completion;
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"THE BUSINESS" means the businesses of providers of accounting
software, payroll software, Max software and associated human
resources and personnel software to the distribution,
manufacturing and general accountancy and payroll markets,
bespoke software development and the provision of computer
management services, training, installation or consultancy in
relation to the foregoing throughout the United Kingdom, the
Isle of Man, the Channel Islands and the Republic of Ireland
as carried on by the Vendor at Completion or at any time
during the two year period prior to Completion, whether as
principal, agent, sub-contractor or in any other capacity
whatsoever;
"CA 1985" means the Companies Act 1985;
"COMPLETION" means the completion of the sale and purchase of
the Business and the Assets on the Completion Date in
accordance with clause 4 and clause 8 of this Agreement;
"THE COMPLETION DATE" means the opening of business on the
date of this Agreement;
"THE CONFIDENTIAL INFORMATION" means trade secrets and
information equivalent to them (including but not limited to
formulae, processes, methods, knowledge and Know-how) in
connection with the products manufactured, produced,
distributed and sold and the services supplied by the Vendor
in connection with the Business and the customers and
suppliers of the Company and which are for the time being
confidential to the Business;
"THE CONTRACTS" means the current contracts and engagements of
the Vendor which relate to the Business as listed in Appendix
[7], but excluding contracts with the Employees;
"THE DISCLOSURE LETTER" means the letter of even date in the
agreed form from the Warrantors to the Purchaser disclosing
certain matters relating to the Warranties which has been
delivered to the Purchaser immediately prior to the execution
of this Agreement;
"ENVIRONMENTAL CLAIM" means any claim, notice of violation,
prosecution, demand, action, official warning, abatement or
other order or notice (conditional or otherwise), relating to
Environmental Matters and any notification or order requiring
compliance with the terms of any Environmental Licence or
Environmental Law;
"ENVIRONMENTAL LAWS" includes all or any applicable law,
statute, rule, regulation, treaty, directive, direction,
by-law, code of practice, circular, guidance note, order,
notice, demand, decision of the courts or anything similar to
any of the foregoing of any governmental authority or agency
or any regulatory body or any other body whatsoever in any
jurisdiction or the European Community in all cases having the
force of law relating to Environmental Matters applicable to
the Vendor in relation to the Business;
"ENVIRONMENTAL LICENCES" means any permit, licence,
authorisation, consent or
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other approval obtained or which ought to have been obtained
at any time by the Vendor in relation to the Business;
"ENVIRONMENTAL MATTERS" includes any of the following:--
(1) any generation, deposit, disposal, keeping,
treatment, transportation, transmission, handling or
manufacture of any Relevant Substance;
(2) nuisance, noise, defective premises, health and
safety at work;
(3) the carrying out of any development (as defined in
Section 55(1) of the Town and Country Planning Act
1991 and in Article 11 of the Planning (Northern
Ireland) Order 1991); and
(4) the pollution, contamination, conservation or
protection of the environment (which includes natural
resources whether pertaining to life or not, such as
air, water, soil, fauna and flora and the
interactions between the same factors and also the
built environment) or of man or any living organisms
supported by the environment or any other matter
whatsoever affecting the environment or any part
of it;
"THE GENERAL CONDITIONS" means the Law Society of Northern
Ireland General Conditions of Sale (3rd Edition) (revised)
(and all references therein to "the property" shall be deemed
to be references to the Airport Road West Property to which
the General Conditions apply for the purposes of this
Agreement);
"GOODWILL" means the goodwill of the Vendor in relation to the
Business, together with the exclusive right for the Purchaser
or its Permitted Assigns to represent itself as carrying on
the Business in succession to the Vendor and all trade names
associated with the Business (other than the name "Unicomp")
including, for the avoidance of doubt, those referred to in
Part 1 of Schedule 4;
"GROUP" means in relation to any company, that company and any
company which is a holding company or subsidiary of that
company and any subsidiary of any such holding company or
subsidiary or any subsidiary undertakings of any such
companies and for the purposes of this Agreement the terms
"subsidiary" and "holding company" shall have the meanings
ascribed thereto by Article 4 and 4A Companies (Northern
Ireland) Order 1986 and the term "subsidiary undertaking"
shall have the meaning ascribed thereto by Part VIII of that
Order;
"INTELLECTUAL PROPERTY RIGHTS" means patents, registered
designs, trade marks and service marks (whether registered or
not), copyright, design rights, and all similar property
rights, including those subsisting (in any part of the world)
in inventions, designs, drawings, performances, computer
programmes, confidential information, business or brand names,
goodwill or the style of presentation of goods or services and
in applications for protection thereof;
"KNOW-HOW" means all industrial and commercial information and
techniques, accounts, records and information (wherever
situated) pertaining to the activities of the Vendor in
relation to the Business;
"THE LEASE" means the relevant lease or underlease of the
relevant one of the Leasehold Properties;
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"THE LEASEHOLD PROPERTIES" means the Airport Road West
Property and the Ballyclare Property referred to in Part A of
Schedule 1;
"THE LEASING AGREEMENTS" means the leasing, conditional sale,
credit sale, hire purchase and like agreements relating to the
Business at Completion listed in Part A of Schedule 5;
"THE LONDON STOCK EXCHANGE" means The International Stock
Exchange of the United Kingdom
"MANAGEMENT ACCOUNTS" means the management accounts in the
agreed form attached hereto at Appendix [1] relating to the
Business for the period from 1st March 1999 to 31st October
1999 (both dates inclusive);
"NAME CHANGE RESOLUTIONS" means the special resolutions in the
form of the drafts in the agreed form attached hereto at
Appendix [6] to be passed on Completion by each of the Vendor
and ICS Computing Group Limited;
"THE NEWBURY PROPERTY" means the premises occupied by the
Vendor at Newbury, Berkshire pursuant to the terms of the
Licence referred to in Schedule 1 Part B and which are to be
the subject of a new Licence to be entered into by the
Purchaser following Completion;
"NOMINATED ACCOUNT" means the Vendor's Solicitors' client
account numbered 11126423 at Northern Bank Limited, 2 Waring
Street, Belfast, BT1 2EE Sort Code 95-00-05;
"NON-TRANSFERRING EMPLOYEES" means, with the exception of the
Transferring Employees, all other employees (if any) employed
by the Vendor in the Business at Completion;
"NOVATION AGREEMENT" means the agreement in the agreed form to
be entered into on Completion pursuant to clause 8;
"PERMITTED ASSIGNS" means those parties to whom this Agreement
(or any rights or obligations under it) may be assigned
pursuant to clause 19.3;
"THE PROHIBITED AREA" means each of England and Wales,
Scotland, Northern Ireland, the Republic of Ireland, the Isle
of Man and the Channel Islands;
"THE PROPERTIES" means the Leasehold Properties and the
Newbury Property;
"THE PURCHASER'S SOLICITORS" means L'Estrange & Brett of
12-16, Bridge Street, Belfast, BT1 1LS;
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"RECORDS" means all or any of the following relating to, used
or intended for use in the Business and in the possession of
the Vendor or any member of the Unicomp Group:
(a) accounting and financial records currently available,
including management accounts information for the two
year period ending on the management accounts date
immediately preceding Completion;
(b) current sales literature and publicity material;
(c) current lists (including without limitation customer,
client and supplier lists), books and documents;
(d) current stock records;
(e) current sales information by value, customer and
product; and
(f) other relevant information currently available
(whether recorded on computer or otherwise howsoever)
necessary to enable the Purchaser to run and operate
the Business with effect from Completion on the same
basis as carried on by the Vendor prior to
Completion;
"RELEVANT BREACH" means any event, matter or circumstance
which is inconsistent with, contrary to or otherwise a breach
of any of the Warranties (as qualified by clause 16.2(a)) or
of the Warrantors' undertaking in clause 17.6 and, to the
extent that the Warranties include representations by the
Warrantors under clause 16, includes any matter or thing which
in any respect renders any of those representations (as
qualified by clause 16.2(a)) untrue or misleading);
"RELEVANT SUBSTANCE" means (1) any radioactive emissions (2)
electricity and any electrical or electromagnetic emissions
(3) any substance whatsoever (whether in a solid or liquid
form or in the form of a gas or vapour and whether alone or in
combination with any other substance) (4) waste (as defined in
the Environmental Protection Act 1990) and (5) any activity or
other phenomenon which in the case of (3) and (4) is capable
of causing harm to man or any other living organism supported
by the environment (which includes natural resources whether
pertaining to life or not, such as air, water, soil, fauna and
flora and the interaction between the same factors and also
the built environment), or damaging the environment or public
health or welfare;
"THE RESTRICTED PRODUCTS" means:
(a) Accounting Software (excluding the following
platforms, AS400, System 36 or AS400 applications
migrated to other platforms or accounting packages
integrated with the ICM Unicomp Manufacturing
Software);
(b) Payroll Software (excluding packaged payroll software
for AS400 or AS400 payroll migrated to other
platforms);
(c) MAX Software;
(d) Human Resources and Personnel Software supplied to
any customer of the Business
produced, marketed, distributed, sold or supplied by the
Vendor in connection
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with the Business at the Completion Date or at any time during
the two year period prior to Completion and whether as
principal, agent, sub-contractor or in any other capacity;
"THE RESTRICTED SERVICES" means:
(a) Computer managed services for the Restricted Products
and computer managed services for the other services
referred to in (b) and (c) below;
(b) Training, installation or consultancy in connection
with the Restricted Products or the other services
referred to in this definition;
(c) Bespoke software development:
(i) in connection with the Restricted Products;
(ii) in connection with the services referred to
in sub-paragraphs (a) and (b) above;
(iii) for existing customers of the Vendor at
Completion
being services supplied by the Vendor in connection with the
Business at the Completion Date or supplied by it during the
two year period prior to Completion and whether as principal,
agent, sub-contractor or in any other capacity whatsoever;
"THE SCHEMES" means:
(a) the ICS Computing Pension Scheme established by a
Definitive Trust Deed dated 19th August 1996,
supplemental to an Interim Trust Deed dated 3rd July
1990; and
(b) the Unicomp Group Personal Pension Scheme effective
1st April 1997:
copies of the relevant documentation for each Scheme
being contained in the Disclosure Letter;
"SECURITY INTEREST" means a mortgage, lien, pledge, charge,
hypothecation or other security interest (or an agreement or
commitment to create any of them), but excluding:
(a) any lien arising in the ordinary course of business
to secure amounts which are not material;
(b) any unpaid vendor's or supplier's lien arising in the
ordinary course of the Business to secure amounts due
in respect of goods or services sold or supplied; and
(c) liens arising by operation of law, including a
banker's lien;
"STATUTORY RECORDS" means all Records relating to the Business
which are required by law to be retained by the Vendor after
Completion;
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"THE STOCKS" means all of the stocks, including raw materials,
work in progress and finished products, bought-in-goods,
engineering stores, consumables and fuel owned by the Vendor
at the Completion Date for the purposes of or in connection
with the Business, including items which, although subject to
reservation of title by the sellers, are under the control of
the Vendor;
"THE SUPPLEMENTAL AGREEMENTS" means the Assignment of Goodwill
in the agreed form set out in Appendix 12, the Assignment of
Intellectual Property Rights in the agreed form set out in
Appendix 13 and the Novation Agreement in the agreed form set
out in Appendix 14;
"THE TRANSFERRING EMPLOYEES" means only those employees
employed by the Vendor in relation to the Business at
Completion referred to in Schedule 7, and, for the avoidance
of doubt, excluding any Non-Transferring Employees;
"THE UNICOMP GROUP" means Inc and any company which is a
subsidiary of it and any subsidiary of any such subsidiary or
any subsidiary undertakings of any such companies;
"THE VENDOR'S SOLICITORS" means Johns Elliot of 11, Lombard
Street, Belfast, BT1 1RG.
"THE WARRANTIES" means the warranties, representations,
undertakings and indemnities contained in or referred to in
clause 16 and schedule 9, including for the avoidance of doubt
those contained in clause 5 of Schedule 8 but incorporated
specifically in Schedule 9 under clause 6.1.14 of Schedule 9;
(b) any document expressed to be "IN THE AGREED FORM"
means a document in a form approved by (and for the
purpose of identification signed by or on behalf of)
the parties hereto;
(c) references:
(i) to clauses, schedules and appendices are
unless otherwise stated to clauses of and
schedules or appendices to this Agreement;
(ii) to statutory provisions shall be construed
as references to those provisions as
respectively replaced, amended or re-enacted
(before the date hereof) from time to time
and shall include any provisions of which
they are re-enactments (whether with or
without modification) and any subordinate
legislation made under such provisions so
far as such modification or re-enactment
applies or is capable of applying to any
transactions entered into prior to
Completion and (so far as liability
thereunder may exist or can arise) shall
include also any past statutory provisions
or regulations (as from time to time
modified or re-enacted) which such
provisions or regulations have directly or
indirectly replaced;
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(d) words importing the singular include the plural and
vice versa, words importing a gender include every
gender and references to persons include bodies
corporate or unincorporate;
(e) the contents table and headings to the clauses are
for convenience only and have no legal effect and
shall be ignored in the interpretation of this
Agreement;
(f) the Interpretation Act (Northern Ireland) 1954 shall
apply to this Agreement in the same way as it applies
to an enactment;
(g) where any obligations in this Agreement are entered
into or accepted by more than one person or party
such obligations are entered into or accepted on a
joint and several liability basis.
2 WARRANTORS' AND THE PURCHASER'S REPRESENTATIONS
Each of the Warrantors severally represent to the Purchaser and the
Purchaser, in turn, represents to each of the Warrantors that:
(a) each of them has the requisite power and authority to
enter into and perform this Agreement;
(b) this Agreement constitutes and all other documents
which are to be executed by any of them at Completion
(including, for the avoidance of doubt, the
Supplemental Agreements) will, when executed,
constitute binding obligations of them in accordance
with their respective terms;
(c) the execution and delivery of, and the performance by
each of the Warrantors and the Purchaser as the case
may be, of obligations under this Agreement and the
other documents which are to be executed by the
Vendor, the Warrantors and the Purchaser at
Completion (including, for the avoidance of doubt,
the Supplemental Agreements) will not:
(i) result in a breach of any provision of the
Memorandum or Articles of Association (or
equivalent constitutional documents for Inc
of any of them;
(ii) to the best of the knowledge and belief of
the party concerned, result in a breach of
any order, judgement or decree of any court
or governmental agency by which it is bound.
3 SUPPLEMENTAL AGREEMENTS
The Warrantors undertake with the Purchaser to procure that each member
of the Unicomp Group and their Permitted Assigns perform and discharge
their respective obligations under those of the Supplemental Agreements
to which any of them is a party and irrevocably and unconditionally
guarantee full and complete performance by each company of those
obligations under the said Agreements.
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4 SALE OF THE BUSINESS AND ASSETS
4.1 With the exception of those items listed in Schedule 6 (which items are
excluded from the sale and purchase hereunder), the Vendor as
beneficial owner shall sell free from all liens, charges and
encumbrances, and the Purchaser, relying on the Warranties herein
contained, shall purchase as at Completion for the respective
provisional considerations stated in Schedule 2 and in the Purchase
Price Apportionment contained in Appendix [11] the Business as a going
concern and the Assets which comprise:
(a) the Properties including, in particular, the Airport Road West
Property which shall be purchased on the terms stated in Part
[C] of Schedule 1;
(b) the assets listed in Schedule 3;
(c) all such rights as the Warrantors have in relation to the
business names listed in Schedule 4;
(d) subject to clauses 4.2, 4.3 and 4.4, the benefit (subject to
the burden) of those undischarged contracts and licences
relating to the Business which have been disclosed to the
Purchaser, namely:
(i) the Leasing Agreements; and
(ii) the contracts listed in Part B of Schedule 5.
(e) the Goodwill relating to the Business;
(f) the Stocks;
(g) the Intellectual Property Rights; and
(h) any other assets of the Vendor or the Warrantors which are
used exclusively in connection with the Business .
4.2 All the Assets hereby agreed to be sold shall as from Completion
(pending an assignment, novation or assurance thereof) be held by the
Vendor or the Warrantors as the case may be, on trust for the Purchaser
absolutely.
4.3 The Purchaser shall have no responsibility for creditors or any other
liabilities of any nature whatsoever of the Vendor or any member of the
Unicomp Group in relation to the Business existing at Completion or
arising by reason of anything done or omitted to be done prior to
Completion and:
(i) the Warrantors hereby agree to indemnify the Purchaser against
all debts and the liabilities of the Business (and against all
actions, proceedings, damages, costs, claims, demands and
expenses of any nature whatsoever brought or made against or
incurred by the Purchaser in respect of such debts or
liabilities of the Business) by reason of any act, default,
neglect or delay by the Warrantors or any member of the
Unicomp Group at any time prior to Completion.
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4.4 Insofar as any contracts (including, without limitation, the Leasing
Agreements and any of the contracts referred to in Schedule 5 Part B):
(a) are not assignable or cannot be assigned without such
assignment constituting an event of default or termination,
this Agreement shall not constitute an assignment or an
attempted assignment. The Warrantors shall in regard to
sub-paragraphs (i) to (iv) below at the option of the
Purchaser (exercisable by notice to the Warrantors given
within twenty four months following Completion) and in all
respects at the Warrantors' expense:
(i) join in endeavouring to procure that the existing
arrangements with the Warrantors are terminated and
that the Purchaser is granted corresponding rights on
the same (or similar in all material respects) terms
and conditions (and for this purpose shall do all
such acts and things and make all such
representations as the Purchaser may require); or
(ii) use all reasonable endeavours to procure that all
relevant third parties waive the relevant provision;
or
(iii) execute a declaration of trust for the benefit and in
favour of the Purchaser; or
(iv) otherwise deal with the same as the Purchaser may
direct;
(b) cannot effectively be transferred to, or the obligations
thereunder cannot effectively be assumed by, the Purchaser
except by an agreement of novation with third parties:
(i) the parties shall use their respective best
endeavours to procure the same to be novated; and
(ii) unless and until any such novation is entered into,
the Warrantors shall do all such acts and things in
relation thereto as the Purchaser may require;
(iii) the Warrantors shall on behalf of the Purchaser take
such action and enforce all claims arising under such
contracts against third parties on receiving the
written request of the Purchaser to do so.
5 CONSIDERATION
5.1 The aggregate provisional consideration payable for the sale of the
Business and the Assets pursuant to this Agreement shall be the sum of
L4,680,000 (four million six hundred and eighty thousand pounds
sterling) payable by electronic funds transfer to the Nominated Account
of the Vendor's Solicitors whose receipt shall be a good discharge. The
said provisional consideration shall be subject to adjustment in
accordance with Schedule 11 of this Agreement.
5.2 The Vendor shall be liable for the payment of all sums which were
outstanding at the Completion Date in respect of items included in the
Stocks.
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6 APPORTIONMENT
6.1 All rents, service charges, insurance premiums, rates, gas, water,
electricity and telephone charges and other outgoings relating to or
payable in respect of the Business including accruals for supplies of
goods and services prior to Completion and/or the Properties and all
liabilities in relation to salaries, wages, [accrued holiday
entitlement,] bonus or commission payments, whether payable as a matter
of contract or payable at the discretion of the Vendor, national
insurance and pension contributions, PAYE, remittance payments or other
such benefits or entitlements to or in respect of the Transferring
Employees up to the Completion Date shall be borne by the Vendor and as
from the Completion Date shall be borne by the Purchaser and all rents,
royalties and other periodical payments receivable in respect of the
Business and/or the Properties up to that time shall belong to and be
payable to the Vendor and as from that time shall belong to and be
payable to the Purchaser. Such outgoings and payments receivable shall
be apportioned accordingly.
6.2 Where any amounts fall to be apportioned under this Agreement, the
Vendor shall provide the Purchaser with full details of the
apportionments, together with supporting vouchers or similar
documentation, and in the absence of dispute the appropriate payment
shall be made by or to the Vendor forthwith. If the amount of any
apportionment is in dispute and cannot be resolved between the Vendor
and the Purchaser within a period of fourteen days from the date on
which the dispute arose, the matter shall be referred for final
settlement to a firm of Chartered Accountants nominated jointly by the
Vendor and the Purchaser, or failing such agreed nomination within 14
days after request by the Vendor or the Purchaser, nominated at the
request of either of them by the Chairman for the time being of the
Ulster Society of the Institute of Chartered Accountants in Ireland.
The accountants so appointed shall be entitled to call for and inspect
such information or documents as they reasonably consider necessary. In
making their determination, the accountants shall act as experts and
not as arbitrator and their decision shall (in the absence of manifest
error) be final and binding on the parties and their fees shall be
borne and paid by the Vendor and the Purchaser in such proportions as
the accountants determine. The dispute determination procedure
described above shall be referred to for the purposes of this Agreement
as the "Determination Procedure". The amount so determined in
accordance with the Determination Procedure shall be paid within 14
days of the determination, together with interest calculated on a daily
basis (after as well as before judgement), from the Completion Date
until the date of actual payment, at the rate of 2 per cent per annum
above the base lending rate from time to time of Bank of Ireland.
7 NAME CHANGE RESOLUTIONS
On the Completion Date, the Vendor and ICS Computing Group Limited
shall procure that extraordinary general meetings of their respective
shareholders are convened and that the respective Name Change
Resolutions of each are passed by the requisite majority at quorate and
properly convened meetings.
8 COMPLETION
8.1 Completion shall take place on the Completion Date at the Empress
Hotel, Douglas, Isle of Man when all (but not part only unless the
Purchaser shall so agree) of the following business shall be
transacted:
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(a) the Vendor and the Warrantors (as the case may be) shall:
(i) complete the assignment of the Airport Road West
Property in accordance with the provisions of Part
[C] of Schedule 1, and deliver to the Purchaser the
deeds and documents of title to the Airport Road West
Property;
(ii) give immediate possession to the Purchaser of such of
the Assets hereby agreed to be sold as are
transferable by delivery;
(iii) (if requested by the Purchaser) deliver to the
Purchaser duly executed assignments or other
assurances, including, where appropriate, novations
of such other of the Assets hereby agreed to be sold
as are not transferable by delivery including, in
particular, the Contracts (or such of them as the
Purchaser shall stipulate) specified in Appendix [7];
(iv) give immediate possession to the Purchaser (if
appropriate) of the equipment the subject of the
Leasing Agreements;
(v) give immediate possession to the Purchaser of the
Records other than the Statutory Records;
(vi) procure the execution of the Service Agreements by
David Dunbar Mawhinney, James Ross Campbell, Robert
Mervyn Erskine, Bernard Joseph Hill, Desmond
Milligan, Alan Foley;
(vii) execute (or procure execution of) and deliver to the
Purchaser each of the Supplemental Agreements;
(viii) deliver to the Purchaser the Disclosure Letter;
(ix) deliver to the Purchaser a copy of the Management
Accounts, certified by a Director of the Vendor, as a
true copy;
(x) deliver to the Purchaser copies of each of the Name
Change Resolutions certified by a Director of the
relevant company concerned as a true copy and a
letter undertaking to file within the statutory
prescribed time period the appropriate returns in
Companies House, Cardiff;
(xi) a letter from an authorised officer of The Bank of
Ireland and also a letter from a Director of SX3
Limited confirming that their respective Security
Interests over the whole or any part of the Business
and Assets to be acquired by the Purchaser will be
released and discharged in full and such
reconveyances, releases and discharges of all such
Security Interests as are required by the Purchaser;
(b) the Purchaser shall
(i) acknowledge receipt of the Disclosure Letter;
(ii) pay the consideration payable hereunder in accordance
with clause 5.1;
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(iii) execute and deliver to the Vendor, counterparts of
those of the Supplemental Agreements to which it is a
party.
(c) The arrangements stated in Schedule 8 with regard to pension
entitlements of the Transferring Employees shall be effected.
(d) Following Completion, the Vendor will use its best endeavours
to procure as soon as possible execution by the landlord of a
lease of the Ballyclare Property to the Purchaser in terms
acceptable to the Purchaser and execution of a licence of the
Newbury Property in favour of the Purchaser in terms
acceptable to the Purchaser.
(e) Following Completion, the Vendor will use its best endeavours
to procure as soon as possible an assignment by the Department
of Economic Development (acting through the Executive of the
Industrial Development Board for Northern Ireland) to the
Purchaser of the Financial Assistance Agreement dated 8th
March 1999 between the said Department and the Vendor and to
procure an assignment by the Industrial Research and
Technology Unit of the Department of Economic Development of
an offer of financial assistance from the said Unit to the
Vendor dated 10th April 1997 and accepted by the Vendor on
11th April 1997.
9 VALUE ADDED TAX
9.1 All payments to be made pursuant to this Agreement shall (save where
otherwise specifically stated) be taken to be exclusive of VAT (if
applicable) and any VAT chargeable in respect of the matters giving
rise to such payments shall be added to the amount thereof and paid in
addition thereto, subject to the appropriate VAT invoice being
furnished by the Vendor.
9.2 The parties acknowledge and agree that it is considered that section
49(1) Value Added Tax Act 1994 ("VATA 1994") and Article 5 of the Value
Added Tax (Special Provisions) Order 1995 will apply to the sale and
purchase of the Business, so that the transaction is treated as a
transfer of a going concern.
Accordingly:
(a) the Vendor and the Purchaser shall give such notice of the
transfer to HM Customs and Excise as required by law;
(b) the Vendor shall apply for a direction pursuant to section
49(1)(b) VATA 1994 permitting the retention by the Vendor of
all the records of the Business for Value Added Tax purposes
which would otherwise be required by the said section 49(1)(b)
to be preserved by the Purchaser, provided that if HM Customs
and Excise require that such records are delivered to the
Purchaser, then the Vendor shall on demand deliver the same to
the Purchaser. Whichever party retains the said records shall
preserve the records for such period as may be required by law
and during that period shall at all reasonable times permit
the other parties to this Agreement or their agents to inspect
such records and (at the other parties' expense) to take
copies of such records;
(c) the Vendor and the Purchaser shall use all reasonable
endeavours to ensure that pursuant to the provisions referred
to above the sale of the Business hereunder is treated as
neither a supply of goods nor a supply of services for
Value Added Tax purposes;
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(d) if, notwithstanding the provisions referred to above, any
Value Added Tax shall be payable on the sale hereunder, the
Purchaser shall pay to the Vendor such tax on the date of
payment thereof by the Vendor, or (if later) delivery by the
Vendor to the Purchaser of tax invoices in respect thereof.
(e) no re-allocation of the Vendor's VAT registration number to
the Purchaser shall be applied for.
9.3 If due to default on the part of the Purchaser VAT is charged on any of
the Assets being transferred the Purchaser will indemnify the Vendor
against payment of any interest or penalties that may become chargeable
as a result of not accounting for VAT at the correct time.
10 POST-COMPLETION MATTERS (INCLUDING ANNOUNCEMENTS AND CIRCULARS)
10.1 On Completion, the Vendor and each member of the Unicomp Group shall
wholly discontinue carrying on the Business and, for the avoidance of
doubt, shall not, following Completion, use any of the business names
referred to in Part 1 of Schedule 4, particularly the name ICS, or any
abbreviations or derivations of any of those names, to the intent that
the Purchaser may carry on and continue the Business in succession to
the Vendor and each member of the Unicomp Group as the case may be. In
order to assist the Purchaser in the orderly hand-over of the Business
to it, the Vendor hereby grants to the Purchaser a non-exclusive,
royalty free licence to use the name "Unicomp" in conjunction with any
of the Business Names referred to in Schedule 4 to this Agreement for a
period of six calendar months from the Completion Date.
10.2 Forthwith after Completion, the Vendor and the Purchaser shall dispatch
to the suppliers and to the customers copies of the Business letters in
the agreed form set out in Appendix 3.
10.3 Notwithstanding Completion, the Vendor shall from time to time execute
and do or procure to be executed and done all documents, acts and
things as may be necessary or requisite effectually to vest in the
Purchaser the Business and the other Assets hereby agreed to be sold
and to give to the Purchaser the full benefit of this Agreement and
undertakes with the Purchaser to co-operate with it in granting access
to, assessing and reviewing relevant records and data and in
negotiating with the Vendor's insurers in relation to pre-completion
matters.
10.4 Following Completion, on receipt of any notices, correspondence,
information or enquiries (other than anything which relates to
taxation) in relation to the Business and/or the Assets hereby agreed
to be sold, the Vendor shall forthwith pass the same to the Purchaser.
10.5 Subject to clause 9.2(b) the Vendor hereby undertakes with the
Purchaser to preserve all taxation records forming part of the
Statutory Records for at least 6 years from the end of the accounting
reference period of the Vendor to which they relate and all other
Statutory Records for at least two years from Completion. The Vendor
shall permit, on reasonable notice and during normal business hours,
the Purchaser and/or its agents and professional advisers (including
without limitation, its accountants) access to the Statutory Records
and the right to inspect the same and make copies thereof (at the
Purchaser's expense) for any purpose in connection with or incidental
to the Business.
10.6 The parties to this Agreement each undertake to the others to provide
to them all such
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information known to any of them relating to the Business as any of the
other parties hereto may reasonably require for the purpose of
complying with any requirements of law or those of any governmental,
regulatory or other similar body or authority.
10.7 The Purchaser shall for a period of six years from Completion, subject
to reasonable prior notice being given, make available for inspection
by the Vendor all Records and other documents handed over pursuant to
this Agreement and the Vendor shall, with the consent of the Purchaser,
which shall not be unreasonably withheld or delayed, be entitled at
their own expense to make copies of the same.
10.8 Subject as required by law or by the London Stock Exchange or the
Securities and Exchange Commission of the United States of America or
by any relevant national or supra-national regulatory authorities, all
announcements, circulars, press releases or other form of communication
of whatsoever nature to third parties by or on behalf of any of the
parties hereto and relating to the sale and purchase hereunder shall be
in terms which have been agreed in writing in advance between the
parties prior to such announcements, circulars, release or other
communications being made, circulated, released or communicated and
until such agreement (which shall not be unreasonably withheld or
delayed) in writing has been provided, no such announcements,
circulars, releases or other communications shall be made, circulated,
released or communicated.
11 OUTSTANDING CONTRACTS, DEBTORS AND CREDITORS
11.1 The Purchaser hereby undertakes with effect from Completion to use its
reasonable endeavours to complete and discharge in a proper and
workmanlike manner all contracts of which the benefit is hereby agreed
to be sold to, or the burden is hereby agreed to be assumed by, the
Purchaser and further undertakes to indemnify the Vendor against all
liabilities, actions, proceedings, damages, costs, claims, demands and
expenses brought or made against or incurred by the Vendor in each case
by reason of any act, omission, default, neglect or delay by the
Purchaser following Completion relating to such contracts.
11.2 In relation to the said contracts, the Warrantors hereby agree to
indemnify the Purchaser against all liabilities, actions, proceedings,
damages, costs, claims, demands and expenses brought or made against or
incurred by the Purchaser in each case by reason of any act, omission,
default, neglect or delay by the Vendor or any member of the Unicomp
Group prior to Completion.
11.3 The Purchaser shall for a period of twelve months from Completion use
all reasonable endeavours to collect as agent for the Vendor all debts
and other moneys owing at Completion to the Vendor in respect of the
Business and shall from time to time account to the Vendor, and, in any
event, at regular intervals not exceeding twenty eight days, in respect
of all moneys so received, but so that nothing herein shall be deemed
to require the Purchaser to take legal proceedings for the recovery of
any such debts or moneys, except at the Vendor's request and at its
expense PROVIDED THAT the Purchaser shall not, in so doing, be required
to act in a manner which is prejudicial to the Business, particularly
the goodwill thereof.
During the said twelve month period, the Purchaser will also use all
reasonable endeavours to allocate monies received by it after
Completion to the correct customer account and the Vendor undertakes to
do likewise. Every twenty eight days the parties will arrange a
settlement between them of monies which have been paid, for whatever
reason, into the
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incorrect bank account.
In the absence of any evidence as to the intention of the debtor (for
instance, if the debtor was making payment in round sums to discharge
his indebtedness to both the Purchaser and the Vendor), monies received
will be applied first to the debts due to the Vendor which are
outstanding at Completion but with the clear understanding that:
(a) if it is subsequently established that the debtor from whom
payment has been received did not intend to settle a debt
outstanding to the Vendor and the Purchaser gives the Vendor
reasonable prior notice in writing of such situation, the
Purchaser has the right to receive immediate repayment of the
amount in question from the Vendor or to deduct or set-off
that amount from other monies collected by it on behalf of the
Vendor;
(b) in the absence of any evidence of a contrary intention on the
part of the debtor, cheques made payable to the Vendor will be
lodged to the bank account of the Vendor and cheques made
payable to the Purchaser will be lodged to the Purchaser's
bank account, there being no intention that unallocated cash
received for the Purchaser should be lodged to the Vendor's
bank account.
Following the expiry of the said period of twelve months the collection
of such debts shall be solely the responsibility of the Vendor although
the Purchaser shall continue to account to the Vendor after that period
at least every twenty eight days for moneys owing to the Vendor but
received by the Purchaser.
11.4 The Purchaser shall not without the consent of the Vendor, settle,
compromise or release any debts owing to the Vendor such consent not to
be unreasonably withheld or delayed in circumstances where, in the
reasonable opinion of the Purchaser, to do so could impact adversely on
the Business and Assets, particularly Goodwill acquired by the
Purchaser pursuant to the terms of this Agreement.
11.5 Upon the expiry of the said period of twelve months, the Purchaser
shall provide to the Vendor on receipt of prior reasonable notice in
writing from the Vendor, extracts or information derived therefrom,
from the books of account of the Business or other statements showing
debts and other monies owing to the Vendor which have been collected by
the Purchaser and all other relevant information which may reasonably
be requested by the Vendor relating to the collection of such debts,
including any correspondence from debtors.
11.6 The Vendor shall account to the Purchaser for any moneys received by it
or any member of the Unicomp Group after Completion on account or in
respect of contracts which are not covered by the arrangements referred
to in clause 6 relating to apportionment and of which the benefit is
hereby agreed to be sold to the Purchaser and which are owing to the
Purchaser subsequent to Completion.
11.7 Following Completion, the Vendor shall discharge all creditors and
other liabilities of the Business in a manner consistent with that
practised by the Vendor during the 12 month period prior to the
Completion Date to ensure that the goodwill of any creditors or other
third parties towards the Business is not in any way prejudiced or
adversely affected. If requested by the Vendor, the Purchaser shall, at
the Vendor's expense, discharge on behalf of the Vendor any such
creditors and liabilities relating to the period prior to Completion,
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subject to the Purchaser having been put in funds by the Vendor in
advance to enable it to do so.
12 INDEMNITIES
12.1 Each of the Warrantors hereby covenants to pay to the Purchaser by way
of an adjustment to the consideration for the purchase of the Business
an amount equal to any liabilities, claims, losses, costs and expenses,
including (without limitation) penalties and interest payable or
incurred or suffered by the Purchaser to the extent that they arise
from any of the following and to indemnify the Purchaser accordingly:
(a) claims from third parties, employees or former employees of
the Vendor or any member of the Unicomp Group in respect of
financial loss, damage to property and personal bodily injury
or disease (including, for the avoidance of doubt, but without
prejudice to the generality of the foregoing, repetitive
strain injury, stress or passive smoking) where the
circumstances giving rise to such claim occur prior to
Completion and such claims are not fully covered by insurances
taken out by or on behalf of the Vendor prior to Completion;
(b) claims from third parties in respect of financial loss or
damage to property in respect of computer systems, hardware or
software sold or supplied in connection with the Business or
services provided by the Business prior to Completion arising
directly or indirectly from the failure of such systems to
recognise date information;
(c) claims from the Department of Economic Development (acting
through the Executive of the Industrial Development Board for
Northern Ireland) in respect of any breach by the Vendor prior
to Completion of the terms of the Financial Assistance
Agreement dated 8th March 1999 between the said Department and
the Vendor, a true copy of which is included in Appendix 3 of
the Disclosure Bundle attached to the Disclosure Letter;
(d) claims from the Industrial Research & Technology unit of the
Department of Economic Development ("IRTU") in respect of any
breach by the Vendor prior to Completion of the terms of an
offer of financial assistance issued by IRTU to the Vendor on
10th April 1997 and accepted by it on 11th April 1997, a true
copy of which is included in Appendix 3 of the Disclosure
Bundle attached to the Disclosure Letter;
(e) breach of any of the Warranties contained in Schedule 9
paragraph 7--Intellectual Property Rights and paragraph 8--
Year 2000;
12.2 For the avoidance of doubt, it is agreed and acknowledged that the
Purchaser's right to recover any amounts due under clause 12.1 above
and also the Purchaser's right to recover for any breach of clause 2 of
this Agreement shall not be subject to the provisions of Schedule 10
and shall not be qualified or limited in any way by disclosures
contained in the Disclosure Letter relating, directly or indirectly, to
any of the aforesaid covenants to pay, nor by the fact that the
Purchaser has or may be deemed to have actual or constructive knowledge
of any matters covered by the said covenants.
12.3 If any amount paid or due to the Purchaser under clause 12.1 gives rise
to any liability
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to taxation, or would (but for the availability of any relief, credit
or saving) give rise to such a liability to taxation in the hands of
the Purchaser then the amount so paid or due ("the net amount") shall
be increased to an amount ("the grossed-up payment") which (after
subtraction of the amount of any such liability to taxation which
arises, or would but for the availability of any such relief, credit or
saving arise, in the hands of the Purchaser with respect to the
grossed-up payment) shall equal the net amount.
13 EMPLOYEES
13.1 The Transfer of Undertakings (Protection of Employment) Regulations
1981 ("THE TRANSFER REGULATIONS") apply to the sale and purchase of the
Business effected by this Agreement and accordingly:
(a) the contracts of employment between the Vendor and the
Transferring Employees (save insofar as such contracts relate
to any occupational pension scheme, pension arrangements being
dealt with in accordance with Schedule 8 of this Agreement)
shall transfer to the Purchaser with effect from Completion
pursuant to the Transfer Regulations; and
(b) as specified in clause 6.1 above, all wages, salaries and
other benefits of the Transferring Employees and all PAYE tax
deductions and National Insurance contributions relating
thereto shall be discharged by the Vendor in respect of the
period up to and including the Completion Date and by the
Purchaser thereafter.
13.2 The Warrantors shall indemnify and keep the Purchaser indemnified from
and against all claims, demands, actions, proceedings, damages,
compensation, tribunal awards, fines, costs, expenses and all other
liabilities whatsoever, including, for the avoidance of doubt, but
without prejudice to the generality of the foregoing, liabilities
relating to accidents or illness, arising out of or connected with any
claim or other legal recourse by:
(a) any of the Transferring Employees which relates to any actual
or alleged act or omission of the Vendor or any member of the
Unicomp Group (or any other event or occurrence) at any time
prior to Completion;
(b) any trade union or staff association recognised by the Vendor
or any member of the Unicomp Group in respect of any of the
Transferring Employees which relates to any actual or alleged
act or omission of the Vendor or any member of the Unicomp
Group (or any other event or occurrence) at any time prior to
Completion;
(c) reason of any failure by the Vendor or any member of the
Unicomp Group to comply with the Transfer Regulations prior to
Completion;
(d) reason of any taxation liability, penalties or interest
thereon, arising from the employment of any employees or any
other person by the Vendor or any member of the Unicomp Group
prior to Completion which the Purchaser may incur by virtue of
the operation of the Transfer Regulations or by virtue of the
operation of the European Communities (Safeguarding of
Employees Rights on Transfer of Undertakings) Regulations
1980.
13.3 The parties intend that the Transfer Regulations shall apply only to
the Transferring Employees and accordingly the Warrantors undertake to
indemnify and keep the Purchaser indemnified from and against all
claims, demands, actions, proceedings, damages,
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compensation, tribunal awards, fines, costs, expenses and all other
liabilities whatsoever, including for the avoidance of doubt, but
without prejudice to the generality of the foregoing, liabilities
relating to accidents or injury arising under or in relation to:
(a) any contract of employment (including, without prejudice to
the generality of the foregoing the termination thereof
whether before or after Completion) with; or
(b) any duty or liability of the Vendor or any member of the
Unicomp Group in relation to any matter whatsoever (whether
arising before or after Completion) to,
any of the Non-Transferring Employees or any former, existing or future
employee of the Vendor or any member of the Unicomp Group who is not a
Transferring Employee and which contract, duty or liability is
transferred to the Purchaser under the Transfer Regulations or is
alleged by such employee to have been so transferred.
13.4 The Purchaser shall indemnify and keep the Vendor indemnified from and
against all claims, demands, actions, proceedings, damages,
compensation, tribunal awards, fines, costs, expenses and all other
liabilities whatsoever including, for the avoidance of doubt, but
without prejudice to the generality of the foregoing, liabilities
relating to accidents or illness, arising out of or connected with any
claim or other legal recourse by:
(a) any of the Transferring Employees which relates to any actual
or alleged act or omission by the Purchaser at any time after
Completion;
(b) any trade union or staff association recognised by the
Purchaser in respect of any of the Transferring Employees
which relates to any actual or alleged act or omission of the
Purchaser at any time after Completion; or
(c) reason of any failure by the Purchaser to comply with the
Transfer Regulations after Completion.
13.5 In the event that for any reason the contract of employment of any of
the Transferring Employees does not, through the operation of the
Transfer Regulations, have effect after the Completion Date as if made
originally with the Purchaser:
(a) the Purchaser undertakes forthwith on the Completion Date to
offer a contract of employment to commence with immediate
effect to any such Transferring Employee on the same terms
which would have applied had the Transfer Regulations been
applicable to this Agreement and the transfer to be effected
hereunder and in all other respects the remaining provisions
of this clause 13 shall apply, including, in particular, the
arrangements governing pensions referred to in clause 13.9.
13.6 On Completion the Vendor and the Purchaser will join in delivering to
each of the Transferring Employees a joint letter from the Vendor and
the Purchaser in the agreed form set out in Appendix 4.
13.7 The letters to be delivered under this clause shall be handed
personally to those Transferring Employees who are present for work on
the date of such delivery and shall be despatched by first-class post
to those Transferring Employees who are not so present.
13.8 The Purchaser shall promptly provide to the Vendor in writing such
information as will enable the Vendor to carry out its duties under
Regulation 10 of the Transfer Regulations.
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13.9 Insofar as the Transferring Employees only are concerned, the
provisions of Schedule 8 shall apply in relation to the retirement
benefit scheme or schemes established for the benefit of the
Transferring Employees or in which they shall be offered the
opportunity to participate.
14 RESTRICTIVE COVENANTS
14.1 The Warrantors agree with and undertake to the Purchaser and its
successors and Permitted Assigns that they will not, whether on their
own account, or by any other member of the Unicomp Group or through any
of their employees or agents, or through any other person, firm or
company or otherwise howsoever, for a period of 4 years from the
Completion Date directly or indirectly:
(a) provide services to or be employed or otherwise engaged or
interested in any capacity (whether for reward or otherwise)
or give permission to, authorise or licence, directly or
indirectly, any third party to provide services or be so
employed, engaged or interested in any business which is or is
about to be engaged in the manufacture, production, marketing,
distribution, handling, sale or supply of the Restricted
Products or any of them or the provision or supply of the
Restricted Services or any of them in the Prohibited Area in
competition with the Business;
(b) in relation to the Restricted Products or any of them and/or
the Restricted Services or any of them, in competition with
the Business, solicit or canvass or procure others to do so or
otherwise deal with any person, firm, company or other
organisation which was a customer of the Business at any time
during the period of 12 months prior to Completion or which or
whom at Completion was in the process of negotiating to or
intending to do business with the Vendor in relation to the
Business;
(c) solicit or entice away, or endeavour or procure others to
solicit or entice away from the Purchaser or the Business any
person who at Completion was employed or otherwise engaged or
retained by the Vendor in relation to the Business as a
Director or in a senior sales or managerial capacity , whether
or not such person would commit any breach of his contract of
employment or terms of engagement by reason of his leaving the
service of the Purchaser or terminating any sales or other
agency arrangement with the Purchaser or the Business
subsisting at Completion;
(d) (subject only to any legislative or other legal requirement
which is binding on the Vendor or any member of the Unicomp
Group and which limits their ability to provide the covenant
set out in this sub-paragraph (d) in which case the parties
agree, in accordance with sub-clause 14.5, that this covenant
shall apply to the fullest extent legally permissible but
modified as required in accordance with that sub-clause)
employ or otherwise engage or retain any person who at
Completion or during the period of one year prior thereto was
employed or otherwise engaged or retained by the Vendor in
relation to the Business in a senior sales or managerial
capacity and who by reason thereof is or, in the reasonable
opinion of the Purchaser, is likely to be in possession of any
Confidential Information relating to the Business which if
divulged or used in competition with the Business would be
likely to affect in an adverse manner the Business,
particularly
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goodwill.
14.2 The Warrantors agree with and undertake to the Purchaser that they will
not at any time after Completion, whether by themselves, any other
member of the Unicomp Group, or through their employees or agents or
any other person, firm or company or otherwise howsoever:
(a) in the course of carrying on any trade or business, claim,
represent or otherwise indicate any continuing association
with the Business or, for the purpose of obtaining or
retaining any business or custom, claim, represent or
otherwise indicate any past association with the Business;
(b) without the consent of the Purchaser use, whether for
themselves or on behalf of any third party, or (otherwise than
where disclosure is required to comply with any legal
proceedings, subpoena or other legally binding request for
information or any governmental or other regulatory authority
and then only to the extent so required) divulge to any third
party any Confidential Information relating to the Business,
the Restricted Products or the Restricted Services or to the
accounts, customers, suppliers, financial or contractual
arrangements, transactions or affairs of the Business. The
obligations of confidentiality under this sub-clause (b) do
not extend to information relating to the Business which is
confidential at the date of this Agreement but which hereafter
comes into the public domain otherwise than by reason of any
default, act, omission or negligence on the part of any member
of the Unicomp Group;
(c) do or say anything at any time which is harmful to the
reputation of the Business, the Restricted Products or the
Restricted Services or which, as a consequence, is likely to
cause any person to reduce the amount of business transacted
between that person and the Purchaser or the Business or to
seek to change the terms of such business in a manner adverse
to the Purchaser or the Business.
14.3 The Warrantors agree with and undertake to the Purchaser that the
restrictive covenants herein contained are no greater than is
reasonable and necessary for the protection of the value of the
Business and, in particular, the goodwill of the Business and the
Warrantors agree that having regard to that fact those covenants do not
work harshly on them and do not go beyond what is reasonably necessary
to protect the legitimate business interests of the Purchaser. The
Warrantors hereby acknowledge that they have had the opportunity to
take independent advice on the restrictive covenants contained in this
clause 14.
14.4 Each covenant and/or undertaking contained in this clause 14 shall be
construed as a separate covenant and/or undertaking and if one or more
of the covenants and/or undertakings contained in this clause 14 is
held to be against the public interest or unlawful or in any way an
unreasonable restraint of trade the remaining covenants and/or
undertakings shall continue to bind the Warrantors.
14.5 If any of the restrictions contained in clause 14.1 and 14.2 shall be
held to be void but would be valid if deleted in part or reduced in
application, each of such restrictions shall apply with such deletion
or modification as may be necessary to make it valid and enforceable.
Without prejudice to the generality of the foregoing, if such
invalidity arises by reason of the period being excessive, such period
(as the same may previously have been reduced by virtue of this clause
14.5) shall take effect as if reduced by six months
26
<PAGE>
until the resulting period shall be valid and enforceable.
14.6 The Warrantors hereby agree with and undertake to the Purchaser that
they will at the request of the Purchaser or any Permitted Assignee of
the Purchaser enter into a direct agreement or undertaking with any
other company or companies in any Group of which the Purchaser is a
member whereby they will accept restrictions and provisions
corresponding to the restrictions and provisions herein contained (or
such of them as may be appropriate in the circumstances) in relation to
the Business, the Restricted Products and the Restricted Services in
the Prohibited Area for such period or periods not exceeding the
unexpired residue of the periods specified in this clause 14 at the
time such direct agreement or undertaking is entered into and then only
as may reasonably be required for the protection of the legitimate
business interests of the Purchaser or any such other company or
companies in any Group of which the Purchaser is a member.
14.7 The Warrantors hereby agree and undertake with the Purchaser that they
shall ensure that any sale of a controlling interest in the share
capital of the Vendor or of any of the business or undertaking or a
substantial part thereof of it or of any other company subsidiary
undertaking associate division or business owned or controlled by any
member of the Unicomp Group to:
(a) any third party which is not at that time already engaged in
activities in the Prohibited Area which compete with the
Business shall be subject to a condition that such third party
shall not, in competition with the Business for such period or
periods not exceeding the unexpired residue of the periods
specified in Clause 14.1 engage in the Prohibited Area in any
trade or business or be associated with any person firm or
company engaged in any trade or business which is in
competition with the Business or which uses the name "ICS" in
the Prohibited Area in competition with the Business or engage
in the Prohibited Area in any trade or business or be
associated with any person firm or company engaged in any
trade or business manufacturing producing distributing selling
marketing or supplying any of the Restricted Products or
providing any of the Restricted Services in competition with
the Business; or
(b) any third party which is at that time already engaged in
activities in the Prohibited Area which compete with the
Business shall be subject to a condition that such third party
shall not in competition with the Business for such period or
periods not exceeding the unexpired residue of the periods
specified in Clause 14.1 engage in the Prohibited Area in any
trade or business which uses the name "ICS" in the Prohibited
Area or otherwise during such period be engaged, or be
associated with any person firm or company engaged, in the
Prohibited Area in any trade or business manufacturing
producing distributing selling marketing or supplying any of
the Restricted Products or providing any of the Restricted
Services in competition with the Business:
and that, in respect of the unexpired residue of such periods
any such party will impose the same conditions on any of its
assignees or successors on any sale disposal or similar
transaction to which it may subsequently be a party and the
Warrantors shall indemnify the Purchaser against any losses
claims damages or expenses which it may incur by virtue of the
Warrantors failing to fully observe and perform the
obligations contained in this clause 14.7.
27
<PAGE>
14.8 It is agreed by the parties that all references to the Prohibited Area
in sub-clauses 14.1 to 14.7 inclusive shall for the purposes of this
clause 14 exclude the Republic of Ireland and shall be interpreted in
accordance with Northern Irish law. Sub-clauses 14.9 - 14.12 below
apply exclusively to the Republic of Ireland and shall be interpreted
in accordance with Irish law.
14.9 The Warrantors agree with and undertake to the Purchaser and its
successors and Permitted Assigns that they will not, whether on their
own account, or by any other member of the Unicomp Group or through any
of their employees or agents, or through any other person, firm or
company or otherwise howsoever, for a period of 2 years from the
Completion Date directly or indirectly:
(a) provide services to or be employed or otherwise engaged or
interested in any capacity (whether for reward or otherwise)
or permit, authorise or licence, directly or indirectly, any
third party to provide services or be so employed, engaged or
interested in any business which is or is about to be engaged
in the manufacture, production, marketing, distribution,
handling, sale or supply of the Restricted Products or any of
them or the provision or supply of the Restricted Services or
any of them in the Republic of Ireland in competition with the
Business;
(b) in relation to the Restricted Products or any of them and/or
the Restricted Services or any of them, in competition with
the Business, solicit or canvass or procure others to do so or
otherwise deal with any person, firm, company or other
organisation which was a customer of the Business in the
Republic of Ireland at any time during the period of 12 months
prior to Completion or which or whom at Completion was in the
process of negotiating to or intending to do business with the
Vendor in relation to the Business in the Republic of Ireland;
(c) solicit or entice away, or endeavour or procure others to
solicit or entice away from the Purchaser or the Business any
person who at Completion was employed or otherwise engaged or
retained by the Vendor in relation to the Business in the
Republic of Ireland as a Director or in a senior sales or
managerial capacity, whether or not such person would commit
any breach of his contract of employment or terms of
engagement by reason of his leaving the service of the
Purchaser or terminating any sales or other agency arrangement
with the Purchaser or the Business subsisting at Completion;
(d) (subject only to any legislative or other legal requirement
which is binding on the Vendor or any member of the Unicomp
Group and which limits their ability to provide the covenant
set out in this sub-paragraph (d) in which case the parties
agree, in accordance with sub-clause 14.11, that this covenant
shall apply to the fullest extent legally permissible but
modified as required in accordance with that sub-clause)
employ or otherwise engage or retain any person who at
Completion or during the period of one year prior thereto was
employed or otherwise engaged or retained by the Vendor in
relation to the Business in the Republic of Ireland in a
senior sales or managerial capacity and who by reason thereof
is or, in the reasonable opinion of the Purchaser, is likely
to be in possession of any Confidential Information relating
to the Business which if divulged or used in competition with
the Business would be likely to affect in an adverse manner
the Business, particularly goodwill.
28
<PAGE>
14.10 The provisions of clauses 14.2, 14.3 and 14.4 above shall apply to that
part of the Business which is conducted in the Republic of Ireland
mutatis mutandis as if set out in full in this sub-clause.
14.11 If any of the restrictions contained in clauses 14.2 and 14.9 shall be
held to be void but would be valid in the Republic of Ireland if
deleted in part or reduced in application, each of such restrictions
shall apply with such deletion or modification as may be necessary to
make it valid and enforceable. Without prejudice to the generality of
the foregoing, if such invalidity arises by reason of the period being
excessive, such period (as the same may previously have been reduced by
virtue of this clause 14.11) shall take effect as if reduced by six
months until the resulting period shall be valid and enforceable.
14.12 The provisions of clauses 14.6 and 14.7 above shall apply to that part
of the Business which is conducted in the Republic of Ireland mutatis
mutandis as if set out in full in this sub-clause but:
(a) in the case of clause 14.6 with the deletion of the words "the
Prohibited Area" in line seven and the substitution therefor
of the words "the Republic of Ireland" and after the figure 14
in line eight adding in the words "in relation to the Republic
of Ireland";
(b) in the case of clause 14.7 with the deletion of the words
"Prohibited Area" where they appear and the substitution
therefor in each case of the words "the Republic of Ireland".
15 RESTRICTIVE TRADE PRACTICES ACT 1976
No provision by virtue of which this Agreement or any agreement or
arrangement of which this Agreement forms part is subject to
registration under the Restrictive Trade Practices Act 1976 shall take
effect until the day after the date on which particulars required by
that Act to be furnished to the Director General of Fair Trading in
respect of this Agreement or of the agreement or arrangement of which
it forms part have been furnished to him in accordance with that Act.
16 REPRESENTATIONS AND WARRANTIES
16.1 In consideration of the Purchaser entering into this Agreement:
(a) the Warrantors hereby acknowledge that they have represented
to the Purchaser (for itself and as trustee for its successors
in title):
(i) (subject to clause 16.2) in the terms set out in
Schedule 9; and
(ii) that any statement in Schedule 9 which is qualified
as being made "so far as the Warrantors are aware" or
"to the best of the knowledge, information and belief
of the Warrantors" or any similar expression has been
so qualified after due diligent and careful enquiries
by the Warrantors (including enquiry of the executive
directors, company secretary, general managers,
financial controller, taxation manager and personnel
manager of the Vendor and the accountants,
solicitors, tax advisers and insurance brokers who
act, or at the relevant time acted, for the Vendor)
and that the Warrantors have used all reasonable
endeavours to ensure that all
29
<PAGE>
information given, referred to or reflected in that
statement is accurate.
16.2 (a) The Warranties are qualified to the extent, but only to the
extent, of those matters fully and fairly disclosed in the
Disclosure Letter and for this purpose "fully and fairly
disclosed" means disclosed in such manner and in such detail
as to enable a reasonable purchaser to make an informed and
accurate assessment of the matter concerned.
(b) Each of the paragraphs in Schedule 9:
(i) shall be construed as a separate and independent
representation and/or warranty; and
(ii) save as expressly otherwise provided in this
Agreement, shall not be limited by reference to any
other paragraph in Schedule 9 or by any other
provision of this Agreement.
and the Purchaser shall have a separate claim and right of
action in respect of every Relevant Breach of each such
representation or warranty.
16.3 The Warrantors agree with the Purchaser (for itself and as trustee for
the Transferring Employees):
(a) that the giving by the Transferring Employees to the
Warrantors or their agents or advisers of any information or
opinion in connection with the Warranties or the Disclosure
Letter or otherwise in relation to the business or affairs of
the Business or in connection with the negotiation and
preparation of this Agreement or the Disclosure Letter shall
not be deemed a representation, warranty or guarantee to the
Warrantors of the accuracy of such information or opinion;
(b) to waive any right or claim which they may have against the
Transferring Employees for any error, omission or
misrepresentation in any such information or opinion; and
(c) that any such right or claim shall not constitute a defence to
any claim by the Purchaser under or in relation to this
Agreement (including the Warranties).
17. CLAIMS FOR MISREPRESENTATION AND BREACH OF WARRANTY OR UNDERTAKING
17.1 (a) If the effect of the Relevant Breach is that:
(i) any Asset of the Business acquired by the Purchaser
pursuant to the terms of this Agreement is
extinguished or is worth less than its value would
have been if the Relevant Breach had not occurred; or
(ii) the Business is or will be under a liability or an
increased or substituted liability for which the
Purchaser is liable by virtue of the terms of this
Agreement and which would not have existed if the
Relevant Breach had not occurred; or
(iii) there does not accrue to the Purchaser or the
Business some benefit, gain
30
<PAGE>
or profit which could reasonably have been expected
to accrue to the Purchaser or the Business if the
Relevant Breach had not occurred,
the Purchaser shall be entitled by notice in writing given to
the Warrantors or the Vendor's Solicitors at any time after
Completion to require the Warrantors to make good the
resultant loss to the Purchaser either (at the Purchaser's
option) by the payment in cash to the Purchaser of an amount
equal to the amount by which in consequence of the Relevant
Breach the value of the Business falls short of the value it
would have had if the Relevant Breach had not occurred or by
the payment in cash to the Purchaser of the appropriate sum
(as defined in clause 17.2).
(b) If any amount paid or due to the Purchaser under clause
17.1(a) gives rise to any liability to taxation, or would (but
for the availability of any relief, saving or credit) give
rise to a liability to taxation in the hands of the Purchaser
then the amount so paid or due ("the net amount") shall be
increased to an amount ("the grossed-up payment") which (after
subtraction of the amount of any liability to taxation which
arises or would but for the availability of any relief, saving
or credit arise, in the hands of the Purchaser with respect to
the grossed-up payment) shall equal the net amount.
17.2 For the purposes of clause 17.1(a) "THE APPROPRIATE SUM" means:
(a) if the effect of the Relevant Breach is as stated in clause
17.1(a)(i), the amount by which the value of the Assets
acquired by the Purchaser pursuant to the terms of this
Agreement falls short of the value they would have had if the
Relevant Breach had not occurred; or
(b) if the effect of the Relevant Breach is as stated in clause
17.1(a)(ii), the amount by which the liabilities assumed by
the Purchaser pursuant to the terms of this Agreement exceed
what would have been their amount if the Relevant Breach had
not occurred; or
(c) if the effect of the Relevant Breach is as stated in clause
17.1(a)(iii), an amount equal to the capitalised value of any
such benefit, gain or profit as is mentioned in that clause
which could reasonably have been expected to accrue to the
Purchaser or the Business if the Relevant Breach had not
occurred but which does not accrue to it in the circumstances
specified in that clause,
plus in each case such additional amount (if any) as may be
necessary to put the Purchaser into the same position in
financial terms as would have existed if there had been no
such breach.
17.3 The amount of the loss suffered by the Purchaser in consequence of any
Relevant Breach as measured by any of the payments which the Purchaser
is entitled to require to be made under clauses 17.1 and 17.2 shall be
deemed to have been within the contemplation of the parties on entering
into this Agreement.
17.4 The rights and remedies conferred on the Purchaser under this Agreement
are cumulative and are additional to, and not exclusive of, any rights
or remedies provided by law or otherwise available at any time to the
Purchaser in respect of any Relevant Breach (including but not limited
to the right to damages for any loss or additional loss suffered
31
<PAGE>
by the Purchaser).
17.5 (a) The Purchaser shall be entitled to make a claim or
exercise any right of action after Completion in respect of
any Relevant Breach whether or not the matter giving rise to
the claim or right was known to or discoverable by the
Purchaser before Completion;
(b) The Purchaser's right or ability to claim damages,
compensation or other relief in respect of any Relevant Breach
shall not be affected or limited, and the amount recoverable
shall not be reduced, on the grounds that the Purchaser may
before Completion have had actual, constructive or implied
knowledge of the matter giving rise to the claim; and
(c) Without prejudice to the generality of clause 17.5(a) and
17.5(b) the rights and remedies of the Purchaser shall not be
affected or limited in any way by any investigation made by or
on behalf of the Purchaser into the Business or any report on
the Business prepared at the instance of or made available to
the Purchaser.
17.6 The Warrantors undertake to indemnify the Purchaser against any costs
(including legal costs on an indemnity basis), expenses and other
liabilities (together with any VAT thereon which is not recoverable by
the Purchaser) which the Purchaser may reasonably incur, either before
or after the commencement of any action, in connection with:
(a) the settlement of any claim by the Purchaser that there has
been a Relevant Breach;
(b) any legal proceedings in which the Purchaser claims that there
has been a Relevant Breach and in which judgement is given for
the Purchaser; or
(c) the enforcement of any such settlement or judgement.
18 TIME OF THE ESSENCE
18.1 Any time, date or period mentioned in this Agreement may be extended by
mutual agreement between the parties hereto or otherwise as provided
herein, but, as regards any time, date or period originally fixed or so
extended as aforesaid, time shall be of the essence.
19 CONTINUING EFFECTS OF THIS AGREEMENT
19.1 All provisions of this Agreement shall so far as they are capable of
being performed or observed continue in full force and effect
notwithstanding Completion except in respect of those matters then
already fully performed.
19.2 This Agreement shall be binding on and shall enure for the benefit of
each party's successors and Permitted Assigns (as the case may be).
19.3 This Agreement, (or any of the rights or obligations under it), is not
assignable by any of the parties hereto without the prior consent in
writing of each of the other parties PROVIDED THAT the Purchaser may
assign the benefit of it, subject to the burdens hereunder, to any
company which is a member of the same Group as at the date hereof as
the Purchaser but if such permitted assignee shall at any time
thereafter leave that Group, it shall, on so leaving,
32
<PAGE>
reassign the benefit of this Agreement, subject to the said burdens, to
another company or companies which are, at that time, still members of
the same Group as the Purchaser.
20 RELEASES, ETC., BY THE PURCHASER
20.1 Any liability to the Purchaser under this Agreement may in whole or in
part be released, compounded or compromised or time or indulgence given
by the Purchaser in its absolute discretion as regards the Vendor or
the Warrantors under such liability without in any way prejudicing or
affecting the Purchaser's rights against the others of them in respect
of the same or a like liability, whether joint and several or
otherwise.
20.2 No exercise or failure to exercise or delay in exercising any right,
power or remedy by any party hereto shall, unless otherwise agreed in
writing by such party, constitute a waiver by that party of any such
right, power or remedy or of any other right, power or remedy arising
under this Agreement or otherwise.
21 OTHER PROVISIONS
21.1 This Agreement (together with all documents which are required by its
terms to be entered into by the parties or any of them and all other
documents which are in the agreed form and/or are entered into by the
parties or any of them in connection with this Agreement) sets out the
entire agreement and understanding between the parties or any of them
in connection with the Business and the sale and purchase described
herein.
21.2 No purported variation of this Agreement shall be effective unless made
in writing and signed by or on behalf of each of the parties hereto.
21.3 At all times after the date of this Agreement each party shall where
appropriate itself execute and use all reasonable endeavours to procure
that any necessary third party shall execute such documents and do such
acts and things as any other party may reasonably require for the
purpose of giving to that other party the full benefit of those
provisions of this Agreement as are for the benefit of such other
party.
21.4 If any term or provision in this Agreement shall be held to be illegal
or unenforceable, in whole or in part, under any enactment or rule of
law, such term or provision or part shall to that extent be deemed not
to form part of this Agreement, but the enforceability of the remainder
of this Agreement shall not be affected.
21.5 This Agreement may be entered into in any number of counterparts and by
the parties to it on separate counterparts, each of which when executed
and delivered shall be an original, but all counterparts shall together
constitute one and the same instrument.
22 NOTICES
22.1 Except as otherwise provided in this Agreement, every notice under this
Agreement shall be in writing and shall be deemed to be duly given if
it (or the envelope containing it) identifies the party to whom it is
intended to be given as the addressee and:
(a) it is delivered by being handed personally to any one of the
Directors or the Secretary of the addressee); or
33
<PAGE>
(b) it is delivered by being left in a letter box or other
appropriate place for the receipt of letters at the
addressee's authorised address; or
(c) the envelope containing the notice is properly addressed to
the addressee at its authorised address and duly posted by
first class mail or express or other fast postal service or
registered post (or by airmail registered post if overseas) or
the notice is duly transmitted to that address by facsimile
transmission,
and, in proving the giving or service of such notice, it shall be
sufficient to prove that the notice was duly given within the meaning
of this clause 22.1.
22.2 A notice sent by post (or the envelope containing it) shall not be
deemed to be duly posted for the purposes of clause 22.1(c) unless it
is put into the post properly stamped or with all postal or other
charges in respect of it otherwise prepaid.
22.3 For the purposes of this clause 22 the authorised address of the
Warrantors (or any of them) shall be the address of the Vendor's
Solicitors or (in the case of notices transmitted by facsimile
transmission) the facsimile number of the Vendor's Solicitors and the
authorised address of the Purchaser shall be the address of its
registered office for the time being or (in the case of notices
transmitted by facsimile transmission) its facsimile number at that
address.
22.4 Any notice duly given within the meaning of clause 22.1 shall be deemed
to have been both given and received:
(a) if it is delivered in accordance with clause 22.1(a) or
22.1(b), on such delivery;
(b) if it is duly posted or transmitted in accordance with clause
22.1(c) by any of the methods there specified, on the second
(or, when sent airmail, fifth) business day after the day of
posting or (in the case of a notice transmitted by facsimile
transmission) upon receipt by the sender of the correct
answerback or transmission report.
22.5 For the purposes of this clause 22 "notice" shall include any request,
demand, instructions or other document
23 CHOICE OF LAW, SUBMISSION TO JURISDICTION AND ADDRESS FOR SERVICE
23.1 This Agreement (other than sub-clauses 14.9 - 14.12 inclusive which
shall be governed by and interpreted in accordance with Irish law)
shall be governed by and interpreted in accordance with Northern
Ireland law.
23.2 The parties hereby submit to the exclusive jurisdiction of the High
Court of Justice in Northern Ireland.
23.3 Each of the Warrantors hereby irrevocably authorises and appoints the
Vendor's Solicitors to accept service of all legal process arising out
of or connected with this Agreement and service on the Vendor's
Solicitors shall be deemed to be service on the party concerned.
24. COSTS
34
<PAGE>
Each party hereto shall pay the costs and expenses incurred by it in
connection with the entering into and completion of this Agreement.
25. STAMP DUTY
The Purchaser shall pay any stamp duty payable on this Agreement.
IN WITNESS whereof this Agreement has been entered into as a Deed the day and
year first above written
35
<PAGE>
SCHEDULE 1
The Properties
PART A
Leasehold Properties
<TABLE>
<CAPTION>
- -------- ----------------- ------------- ------------------- ------------------ ------------------------ ---------------- ----------
NUMBER DESCRIPTION PROPRIETOR DATE OF LEASE PARTIES TO LEASE TERM AND RENT OCCUPIER(S) ACTUAL USE
- -------- ----------------- ------------- ------------------- ------------------ ------------------------ ---------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
[1] 205 Airport Road ICS Unicomp 22nd March 1996 The Belfast 125 years from and ICS Unicomp Office
West, Belfast Limited Harbour including 9th January Limited
Commissioners 1995 at an annual rent
(1) and I.C.S. of L12,000 subject to
Computing review
Limited (2)
- -------- ----------------- ------------- ------------------- ------------------ ------------------------ ---------------- ----------
</TABLE>
[2] Ballynure Road, Ballyclare occupied by an associated company of the
Vendor, C.I. Computer Software Limited.
PART B
Newbury Property
By licence dated 13th June 1997 granted by Job Creation Limited to the Vendor,
the Vendor was granted the right to share with Job Creation Limited the use of
offices at Wessex House, 22 Oxford Road, Newbury, Berkshire, RG14 1PA at a fee
of L1,050 plus VAT per month. The licence is determinable by three months notice
by either party, to expire at the end of any calendar month.
36
<PAGE>
PART C
SALE OF THE AIRPORT ROAD WEST PROPERTY
1. GENERAL CONDITIONS OF SALE
The sale of the Property is subject to the General Conditions of Sale
of the Law Society of Northern Ireland (3rd Edition Revised) ("the
General Conditions") insofar as the same are applicable to the sale by
private treaty and are not varied or are inconsistent with the
expressed terms of this Agreement and the following General Conditions
shall be amended/deleted as follows:-
1.1 General Condition 10.5 shall not apply.
1.2 General Condition 15.7 shall not apply.
1.3 In General Condition 16.1(a) the rate of 2% above Bank of
Ireland Base Lending Rate in lieu of the rate of interest
therein specified shall apply.
1.4 In General Condition 19.3 the period of 14 working days after
the date of service of the notice shall apply in lieu of the
period of 5 working days therein specified.
1.5 In General Condition 4.1 the following words shall be deleted
"other than those apparent on inspection of the property".
2. SPECIAL CONDITIONS
2.1 The title to the Property shall commence with the Indenture of
Fee Farm Grant dated 1942 between The Kings Most Excellent
Majesty of the first part, the Minister of War Transport of
the second part and The Belfast Harbour Commissioners of the
third part.
2.2 This Agreement shall be conditional upon the Vendor furnishing
the Purchaser's Solicitors on completion with an assignment or
assignments in a form or forms reasonably acceptable to the
Purchaser's Solicitors, of the benefit of the contracts and
certificates in relation to the construction of the buildings
at the Property from the consultants and contractors used by
the Vendor to the Purchaser.
2.3 The Vendor warrants as at the date of formation of this
Agreement that it has not in respect of the Property elected
under paragraph 2 Schedule 10 of the VAT Act 1994 or otherwise
to waive the exemption to pay VAT and undertakes with the
Purchaser not so to do.
2.4 This Agreement shall be conditional upon the Vendor producing
to the Purchaser's Solicitors before completion a copy of the
Landlord's written consent
37
<PAGE>
to the change of use of the Property from warehousing,
showroom and ancillary offices to office accommodation and a
copy of the Agreement for Lease in relation to the Property.
2.5 This Agreement shall be conditional upon the Vendor obtaining
the consent of The Belfast Harbour Commissioners to the
Assignment of the Property to the Purchaser.
38
<PAGE>
SCHEDULE 2
APPORTIONMENT OF THE CONSIDERATION FOR THE PROPERTIES
<TABLE>
<S> <C> <C>
1. 205 Airport Road West, Belfast L739,217
2. Ballyclare L nil
3. Newbury L nil
------------
TOTAL = L739,219
</TABLE>
39
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SCHEDULE 3
Assets being sold (exclusive of assets comprised in
schedules 1, 4 and 5)
(1) (2)
NO. ASSETS
1. the goodwill of the Business and the benefit of the
Supplemental Agreements
2. the Stocks
3. the benefit of any sums to which the Vendor or any member of
the Unicomp Group are entitled from third parties or
insurers in respect of damage or injury caused to the
Properties or other Assets comprised in the Business, except
to the extent of sums expended prior to Completion in making
good such damage or injury
4. all drawings, patterns, designs, record (including customer
and supplier records), technical advertising, sales
specifications, publications and other material relating to
or used in connection with the Business
5. the plant, machinery and equipment and all fixed assets of
the Business included in the fixed asset/plant register
contained in the copy of the Management Accounts which is
included in Appendix [1] not otherwise referred to
specifically in Schedule 1 or elsewhere in this Schedule
6. all office furniture and office equipment used in
connection with the Business
7. the motor vehicles (if any) owned by the Vendor
8. any other tangible personal property relating to the
Business
9. all inventions, discoveries, improvements, designs,
techniques or other information and all marks or get up
relating to or used exclusively in connection with the
Business
40
<PAGE>
SCHEDULE 4
INTELLECTUAL PROPERTY RIGHTS
1. BUSINESS NAMES
ICS
ICS Computing Limited
ICS Computing Group Limited
Independent Computer Services Limited
Distributex
DTX
DTX Business systems
2. OTHER IP RIGHTS
Patents, Trade Marks, Registered Designs, Copyright (including
copyright in all drawings, plans, specifications, designs and computer
software owned by the Vendor or any other member of the Unicomp Group)
and used in or for the purposes of the Business and all Know-how and
Confidential Information so owned and used.
ALL RIGHTS WHICH THE VENDOR HAS, WHETHER AS PROPRIETOR OR LICENSEE IN
RESPECT OF THE FOLLOWING SOFTWARE PACKAGES USED BY IT IN THE COURSE OF
THE BUSINESS.
Distributex Software System
Unipims System (including, all ideas, knowledge, concepts or techniques
relating to features added to Version 2 of Unipims HR which have been
developed or funded by the Vendor)
Max Manufacturing System
Hermes Payroll and Personnel System
Recital
Uniface
Di-Divers
IQ Objects
Bespoke software developed by ICS for its client base
41
<PAGE>
SCHEDULE 5
Agreements and licences
PART A - THE LEASING AGREEMENTS
<TABLE>
<CAPTION>
Registration Contract Finance Agreement Monthly Car
Number Company Company Number Repayment
<S> <C> <C> <C> <C> <C>
CCZ 6827 FF TBA TBA 492.32 Volvo S70 2.4
IAZ 7087 FF L&U 077887 39021017 379.52 Rover 620
IAZ 7773 RFS RFS 28 949 25 502268 328.34 Renault Laguna RTd 2.2
JAZ 1660 RFS RFS 28 949 25 502276 298.00 Renault Laguna RT 1.8
JAZ 5278 RFS RFS 28 949 25 502608 269.76 Peugeot 306 XR TD 1.9
JAZ 5780 RFS RFS 7 949 25 501449 380.82 Renault Laguna RTd 2.2 Est
JAZ 7135 FF L&U 077887 39021033 309.00 Renault Laguna RTd 2.2
JAZ 7521 FF L&U 28 949 25 500877 273.77 Renault Laguna RT 1.8
KAZ 1694 FF L&U 077887 49021036 337.22 Renault Laguna RT 2.0
KAZ 1696 FF L&U 77887 390210515 329.00 Renault Laguna RTd 2.2 Family
KAZ 4835 FF L&U 077887 49021028 304.32 Renault Laguna RNd 2.2
KAZ 5586 CC WOODC NI0004340 370.13 Ford Galaxy 1.9TD Aspen
KAZ 6974 FF L&U 077887 49021015 337.22 Peugeot 406 LX
NBZ 9288 RFS RFS 28 949 25 502284 330.28 Renault Laguna RT 2.0
OAZ 3937 CC Wood Fin 316.08 Renault Laguna RTd 2.2 Family
OBZ 1613 RFS RFS 28 94 925 502543 350.91 Renault Laguna RT 2.0
OBZ 2973 RFS RFS 28 94 925 502586 303.09 Renault Laguna RT 2.0 Family
OBZ 2974 RFS RFS 28 94 925 502594 303.09 Renault Laguna RT 2.0 Family
OBZ 3737 FF L&U 077887 38121018 528.75 Jeep Cherokee 4.0 Limited
OBZ 4207 FF L&U 77887 3902104/1 309.02 Renault Laguna RT 2.0
RAZ 6972 Agnew Cort L&U 1155558121013 574.89 BMW 520i SE
RIL 5577 FF NAF 062 521 7301 491.16 BMW 520i
TAZ 6068 FF L&U 39021025 313.73 Renault Laguna RT 2.0
TAZ 6069 FF L&U 077887 39021076 391.28 Renault Laguna RT 2.0
TAZ 8435 FF L&U 1155539021033 280.82 Vauxhall Vectra ArticII
UAZ 1612 FF L&U 976695 39021076 322.84 Peugeot 406 LXdt
UAZ 6496 CC Wood Fin NI0105650 293.91 Rover 414Si 16v
UAZ 8129 CC Wood Fin NI0105612 381.87 Seat Alhambra
V816 FJB RFS RFS 0790125 500693 372.17 Renault Laguna 2.0 Alize Family
</TABLE>
<TABLE>
<CAPTION>
EQUIPMENT AGREEMENT NO./ FINANCE QUARTERLY
REFERENCE COMPANY PAYMENT L
<S> <C> <C> <C>
Canon NP6030 Photocopier 405195 Anglo Financial 503.50
BT - Meridian Telephone System NAC 0082539 British Telecom 1348.85
Alpha Server (Medusa) 98LSA1063-01 DLL Technology 2881.74
Alpha Server (JKL) 95IRI047 DECLease 2300.00
Alpha Server (CPL. Cawoods, Heat) 16/113/23/500420 Capital Bank 4598.00
</TABLE>
42
<PAGE>
PART B - OTHER AGREEMENTS
SUPPLIER CONTRACTS
ICS Computing Limited and Target Computer Group Limited
C I Computers Software Limited and ICS Unicomp Limited
Recital Corporation and ICS Computing Limited
Compuware Limited and ICS Unicomp Limited
Systems Options Limited and ICS Unicomp Limited
Information Advantage Software Limited and ICS Unicomp Limited
Manufacturing Control Systems Limited and ICS Computing Limited
CLIENT CONTRACTS
Securicor Information Systems Limited and ICS Unicomp Limited
Eurodis Electron Plc and CEM Computers Limited
ICS Computing Group Limited and Anglo Coal Limited (CS400)
ICS Unicomp Limited and CPL Distribution Limited (CS400)
ICS Computing Group Limited and British Fuels Limited (CS331)
ICS Unicomp Limited and Ulster Carpet Mills Limited
ICS Computing Limited and Ulster Carpet Mills Limited (CS262; CS262/2; CS262/3;
CS262/4)
ICS Computing Limited and Northern Ireland Airports Limited (CS300; CS300/2;
CS300/4; CS300/5)
Northern Ireland Electricity and ICS Unicomp Limited (NIE 01/MPS)
Northern Ireland Electricity and ICS Unicomp Limited (NIE 02/MPS)
W D Irwins and [ ICS ]
Cawoods of NI and ICS Unicomp Limited
ICS Unicomp Limited and Cawoods of NI (CS294; RC288; DX255; VX250; SL313-1;
SL314-1; SL315-1; SL316-1)
ICS Computing Limited and Kingspan Building Products Limited (CS370)
Government Purchasing Agency for use by Forensic Science Agency of Northern
Ireland
(NIO Tender number 0172 with ICS Unicomp Limited)
(NIO Tender number 0130 with ICS Computing Limited)
43
<PAGE>
SCHEDULE 6
Assets of the Business excluded from the sale
1. All book and other debts owing to the Vendor or any member of the
Unicomp Group at Completion, all amounts owing to the Vendor in respect
of all goods despatched and services provided and invoiced on or before
Completion and all cheques, notes, securities, deposits and bills
receivable by the Vendor in respect of the period prior to Completion.
2. Any cash in hand and at bank, any cheques, bills, notes, securities and
any other debtors of the Vendor.
3. Any amounts recoverable by the Vendor in respect of Taxation paid or
payable by the Vendor in connection with matters or events occurring
before the Completion Date.
4. The name "UniComp", but subject to the licence to use that name
referred to in clause 10.1 of this Agreement.
44
<PAGE>
SCHEDULE 7
EMPLOYMENT
THE TRANSFERRING EMPLOYEES
<TABLE>
<S> <C> <C>
Acheson, Kenneth W Ferguson, Margaret Lane, Edward
Adams, Des Fields, Aidan Lane, Timothy
Anderson, Philip G R Foreman, Pamela Lapsley, David R
Armstrong, Eugene G Fox, Vernon Lockhart, John
Ayerst, David Galbraith, Maureen Lyttle, Glynnis V
Bailie, M Anne Geddis, Margaret Magee, Desmond A
Black, Joseph Gilmore, John Mawhinney, David D
Bodey, Jan Greenaway, Barbara Maxwell, Phyllis
Boyle, Anne Greenwood, Herbie McAuley, Katrina M
Brown, Deborah A Hamill, Nicola M McCahon, Paul
Burke, Leslie Hamilton, Conor McCann, Marcella
Caldwell, Mark Harvey, Beverley McCartney, David
Campbell, Ross Hendry, Susan H McClean, Thomas
Carlisle, Nicola Hill, Brian J McCleary, George
Cathcart, John Ireland, Gordon McClure, Philip
Coey, M Elizabeth Irwin, Roy E McClurg, E M (Lynn)
Connolly, Dominic Johnston, Michelle McCorkell, Pat
Cunningham, Joanne Johnston, Ryan McCormick, Mervyn H
Donnelly, Daphne Kane, Sonia McCreery, Gordon
Downey, Gerard Kee, Joanne McCullough, Miriam
English, Dori-Anne Kennedy, Jerry J McDonnell, Karen J
Erskine, Mervyn Kerlin, Shane A McHenry, Carson
Farr, Nigel D Kirk, Donna McIlwaine, L Joan
Farr, Stephen E Kirk, Roberta G McIlwaine, Johnathan N
McIlwaine, Stephen A McMurray, Lara McPolin, Kevin
Miligan, Des Milliken, Isabel A Montgomery, Barbara
Montgomery, Leslie Moore, Adrian T Mullan, David
Murdoch, Jack Murphy, Niall J Murphy, Raymond P
Nixon, David O'Hanlon, Patrick O'Kane, Barbara
Oliver, Barbara O'Neill, Briege O'Neill, Mary
O'Regan, Anne-Marie Patterson, Clare L Prentice, Christine
Prentice, Stacey Quirey, Jacqueline Roberts, E Ann
Scullion, Robert Shields, Paul Sloan, Janet
Stephenson, Marie J Stevenson, Denis R Stirling, C John
Stubbs, Hilary F Tallon, Claire Tate, Trevor A
Timoney, Una M Topping, I D Tosh, Caroline D
Towe, I Neil G Tuxworth, Charles H Williamson, Alan
Wonlahan, Gregory Wright, H (Bertie) Young, Karen M
Hill, Etta Patricia Cavuturu, Sakada Gee, Paul
Mullan, David Gutierez, Fernando Hall, Nicola
Hendry, Susan
</TABLE>
45
<PAGE>
SCHEDULE 8
PENSION ARRANGEMENTS
PART I
<TABLE>
<S> <C> <C>
1. Definitions
In this Part I of this Schedule:-
1.1 "Actuary's Letter" means the letter dated 29th November 1999 from
Brian Spence to Jim Todd which is the appendix in
this Schedule.
1.2 "Actuary" means a Fellow of the Institute or Faculty of
Actuaries or such Fellows or a company or
partnership which is making available the advice of
such a Fellow and which has such Fellow as its
director, partner or employee.
1.3 "ICS' Actuary" means Brian Spence or any other actuary as the
Vendor may retain for the purposes of this Schedule
and notify to the Purchaser;
1.4 "ICS Scheme" means the Unicomp Final Salary Scheme governed by a
Definitive Trust Deed dated 19th August 1996,
supplemental to an Interim Trust Deed dated 3rd
July 1990;
1.5 "Life Cover Employees" means such of the Transferring Employees who at the
Completion Date are then members of the ICS Scheme
for death-in-service benefits only;
1.6 "Payment Date" means the date which is the later of:
(i) 14 days after the Basic Transfer Amount is
determined in accordance with Clause 3.1
or in accordance with Clause 6 (or such other
date as the Vendor and the Purchaser may agree
in writing);
(ii) the date on which any required consent forms
are returned from all members;
(iii) the date on which the contracting out
46
<PAGE>
certificate is received; or
(iv) the date on which any necessary consents are
received from the Board of the Inland Revenue;
1.7 "Pensionable Employees" means such of the Transferring Employees who at the
Completion Date are then members accruing benefits
under the ICS Scheme;
1.8 "Purchaser's Actuary" means Jim Todd or any other actuary as the
Purchaser may retain for the purposes of this
Schedule and notify to the Vendor;
1.9 "Purchaser's Scheme" means the ICS Pension Scheme established by interim
trust deed dated 1st December 1999;
1.10 "Taxes Act" means the Income & Corporation Taxes Act 1988;
1.11 "Basic Transfer Amount" means an amount relating to the Pension
Transferring Employees equal to the value as at the
Completion Date calculated in accordance with the
Actuary's Letter;
1.12 "Pension Transferring Employees" means those Pensionable Employees who become
members of the Purchaser's Scheme with effect from
and including the Completion Date pursuant to the
offer of membership referred to in Clause 2.1 and
who request and consent in writing in a form agreed
by the trustees of the ICS Scheme (such agreement
not to be unreasonably withheld) to a payment or
transfer from the ICS Scheme to the Purchaser's
Scheme in respect of the benefits accrued up to and
including the Completion Date under the ICS Scheme
for and in respect of them;
1.13 "Final Transfer Amount" means the Basic Transfer Amount adjusted in
accordance with the Actuary's Letter from the
Completion Date to the Payment Date;
1.14 "Shortfall" means an amount equal to the amount by which:
47
<PAGE>
(a) any amounts actually paid by the trustees of the
ICS Scheme to the trustees or administrators of the
Purchaser's Scheme on or before the Payment Date
are less than
(b) the Final Transfer Amount
</TABLE>
1.15 Words and expressions used in Chapter I of Part XIV of the
Taxes Act or in the Pension Schemes (Northern Ireland) Act
1993 or the Pensions (Northern Ireland) Order 1995 shall have
the same meanings in this Schedule (Parts I, II and III) and
for the purposes of paragraphs 2.1, 2.2, and 9 "associated"
has the meaning given to it in section 590A of the Taxes Act.
1.16 In this Schedule (Parts I, II and III), where the context
admits, "contracted-out", "contracted-out scheme",
"contracting-out certificate", "guaranteed minimum" and
"guaranteed minimum pension" shall have the same meanings as
in the Pension Schemes (Northern Ireland) Act 1993 or in the
Pensions (Northern Ireland) Order 1995.
2. PURCHASER'S SCHEME
2.1 The Purchaser will procure that such of the Pensionable
Employees as are in the employment of the Purchaser (or any
company associated with the Purchaser) at the Completion Date
will be offered membership of the Purchaser's Scheme with
effect from the Completion Date and will also within the
period of two months commencing on the Completion Date be
offered benefits in respect of their Pensionable service prior
to the Completion Date in the ICS Scheme on terms complying
with paragraph 2.3 below.
2.2 The Purchaser shall procure by the Payment Date that the
Purchaser's Scheme is an exempt approved scheme or that the
Commissioners of Inland Revenue have specifically approved the
transfer of the Transfer Amount from the ICS Scheme to the
Purchaser's Scheme; and insofar as any part of the Transfer
Amount would represent amounts in respect of accrued rights to
guaranteed minimum pensions, that the Purchaser or, as
applicable, any company associated with it hold or are named
in a contracting-out certificate in relation to the
Purchaser's Scheme.
2.3 Subject to the transfer or payment being made in full in
accordance with paragraphs 3.3 or 3.4 below each Pension
Transferring Employee shall be credited under the Purchaser's
Scheme in respect of Pensionable service up to the Completion
Date with benefits which are in the joint opinion of the ICS
Actuary and of the Purchaser's Actuary (or, as the case may
be, in the opinion of the independent Actuary appointed under
paragraph 6 below) no less favourable overall than the
benefits earned in respect of such Pensionable service under
the
48
<PAGE>
ICS Scheme (as in force on the date of this Agreement).
3. TRANSFER AMOUNT
3.1
3.1.1 The Purchaser will identify the Pension Transferring
Employees and notify the ICS Actuary of their
identities and transfer to the trustees of the ICS
Scheme the original consent forms signed by the
Pension Transferring Employees within four months of
the Completion Date. The date when such notification
is received from the Purchaser is hereafter referred
to as the "Notification Date".
3.1.2 The Warrantors will procure that the Basic Transfer
Amount is to the extent possible calculated by the
ICS Actuary and that such calculations with all
information the Purchaser's Actuary reasonably
requires is submitted in writing to the Purchaser's
Actuary within 56 days of the Notification Date.
3.1.3 If the Purchaser's Actuary agrees that amount as the
Basic Transfer Amount, the Warrantors shall procure
that the ICS Actuary and the Purchaser shall procure
that the Purchaser's Actuary jointly certify that
amount as the Basic Transfer Amount.
3.1.4 If, however the ICS Actuary and the Purchaser's
Actuary fail to agree the Basic Transfer Amount
within 28 days from the date upon which the ICS
Actuary first submits his findings to the Purchaser's
Actuary under paragraph 3.1.2 the matter may, at the
option of either the Vendor or the Purchaser, be
referred to an independent Actuary pursuant to
paragraph 6 below.
3.2 The Warrantors and the Purchaser shall use their respective
reasonable endeavours to procure that all such information as
the ICS Actuary and the Purchaser's Actuary may reasonably
request for the purpose of calculating the Basic Transfer
Amount shall be made available promptly to them.
3.3 The Warrantors shall use their best endeavours to procure that
on the Payment Date the trustees of the ICS Scheme pay or
transfer the Final Transfer Amount to the trustees or
administrators of the Purchaser's Scheme.
3.4 Any voluntary contributions held in respect of the Pension
Transferring Employees under the ICS Scheme and the
investments or monies representing such contributions and any
income derived therefrom shall be disregarded for the purpose
of calculating the Basic Transfer Amount. The Warrantors shall
nevertheless use their best endeavours to procure that on or
before the Payment Date the trustees of the ICS Scheme will
pay or transfer or procure the payment or transfer to the
trustees of the Purchaser's Scheme of the amount of any such
voluntary contributions together with any investment return,
accumulated interest
49
<PAGE>
or bonuses thereon;
3.5 The payment under paragraphs 3.3 and 3.4 of this Schedule will
be made and satisfied in cash.
3.6 The Warrantors agree to pay to the Purchaser on the Payment
Date an amount equal to the Shortfall (less adjustment in
respect of any tax relief actually received or actually
receivable by the Purchaser resulting from the on-ward payment
of the Shortfall by the Purchaser to the Purchaser's Scheme)
adjusted in the event of failure by the Warrantors to make the
payment required under this paragraph on the Payment Date by
interest from the Payment Date to the date of actual payment
under this paragraph in accordance with the Actuary's Letter.
The amount so paid shall be treated as an adjustment to the
purchase consideration for the acquisition of the Business.
The Purchaser undertakes to make onward payment of the
Shortfall and any adjustment for interest to the Purchaser's
Scheme.
PART II
4 INTERPRETATION
4.1 DEFINITIONS
In this Part II of Schedule 8, where the context admits:
(i) 'LIFE ASSURANCE EMPLOYEE' at any time means a person
who at that time is a Transferring Employee and
covered by the Pension Scheme for certain
death-in-service benefits but is not a Pensionable
Employee;
(ii) 'PENSION SCHEME' means the retirement benefits scheme
known as the Unicomp Group Personal Pension Scheme;
(iii) 'PENSIONABLE EMPLOYEE' at any time means a person who
at that time is a Transferring Employee and is, or
but for being absent from work would be, in
Pensionable service under the Pension Scheme;
(iv) 'RELEVANT EMPLOYEE' means any present or past
employee or officer of the Vendor or of any
predecessor to all or any part of its business;
(v) 'SCHEDULE IA' means Schedule IA of the Social
Security Pensions Act 1975;
(vi) 'SCHEME MEMBER' means a person who is or has been
after Completion both a Transferring Employee and a
Pensionable Employee.
4.2 BENEFITS AND OPTIONS
The Warrantors undertake to the Purchaser for its own benefit
and as trustee and agent for the Scheme Members to procure
that:
50
<PAGE>
(i) the Pension Scheme notifies each Scheme Member in
writing as soon as practicable after he ceases to be
in Pensionable service under the Pension Scheme and
in any event within 45 days thereafter of the options
available to him under the Pension Scheme and the
funds accumulated for his benefit under the Pension
Scheme and all other information concerning the
Pension Scheme and those options which the Scheme
Member may reasonably require in order to decide
which (if any) option to exercise;
(ii) if a Scheme Member requests in writing that a
transfer value be paid in respect of him in a manner
permitted under Schedule IA the Pension Scheme gives
effect to that request as soon as practicable and in
any event within 60 days of that request being made;
and
(iii) the Purchaser is forthwith on request advised in
writing of the respective amounts of the transfer
values for the Scheme Members and is supplied with
such information and evidence as the Purchaser may
request to enable the Purchaser to verify those
amounts.
PART III
5 WARRANTIES AND REPRESENTATIONS
The Warrantors hereby warrant and represent to and for the benefit of
the Purchaser in the following terms:
5.1 NO OTHER ARRANGEMENTS
Save for the ICS Scheme referred to in Part I of this Schedule
and the Pension Scheme referred to in Part II of this Schedule
(together "the Schemes") the Vendor is not a party to nor
participates in nor contributes to any scheme, arrangement or
agreement (whether legally enforceable or not) for the
provision of any pension, retirement, death, incapacity,
sickness, disability, accident or other like benefits
(including the payment of medical expenses) for any present or
past employee or officer of the Vendor, including, in
particular, the Transferring Employees, or of any predecessor
to all or any part of its business (hereafter referred to as a
"Relevant Employee") or for the widow, widower, child or
dependant of any Relevant Employee.
5.2 NO ASSURANCES ETC
Neither the Vendor nor any member of the Unicomp Group:
(a) has given any undertaking or assurance (whether
legally enforceable or not) to any Relevant Employee
or to any widow, widower, child or dependant of any
Relevant Employee as to the continuance,
introduction, improvement or increase of any benefit
of a kind described in 5.1 above; or
51
<PAGE>
(b) is paying or has in the last two years paid any
benefit of a kind described in 5.1 above to any
Relevant Employee or to any widow, widower, child or
dependant of any Relevant Employee.
5.3 ALL DETAILS DISCLOSED
All material details relating to the Schemes are contained in
or annexed to the Disclosure Letter including (without
limitation) the following:
(a) a true and complete copy of the documentation
containing the current provisions governing each of
the Schemes;
(b) a true and complete copy of all announcements,
explanatory literature and the like of current effect
which have been issued to any Relevant Employee in
connection with the Schemes;
(c) a true and complete copy of the last audited accounts
of each Scheme to be completed prior to the date of
this Agreement;
(d) details of all amendments (if any) to the Schemes
which have been announced or are proposed but which
have not yet been formally made;
(e) details of all discretionary increases (if any) to
pensions in payment or in deferment under the Schemes
which have been granted in the five years prior to
the date of this Agreement or which are under
consideration;
(f) details of all discretionary practices (if any) which
may have led any person to expect additional benefits
in a given set of circumstances (by way of example,
but without limitation, on retirement at the behest
of the Vendor or in the event of redundancy); and
(g) details of the rate at which and basis upon which the
Vendor currently contributes to the Schemes, any
change to that rate and/or basis which is proposed or
which is under consideration and all contributions
paid to the Schemes by the Vendor in the three years
prior to the date of this Agreement.
5.4 AUGMENTATION ETC.
No power under the Schemes has been exercised in relation to
any Relevant Employee:
(a) to provide terms of membership of the Schemes
(whether as to benefits or contributions) which are
different from those generally applicable to members
of the Schemes;
(b) to provide any benefits which would not but for the
exercise of that power have been payable under the
Schemes; or
52
<PAGE>
(c) to augment any benefits under the Schemes.
5.5 BENEFITS
All benefits payable under the Pension Scheme referred to in
Part II of this Schedule are "money purchase benefits", as
defined in the Social Security Act 1986, S.84(1). All other
benefits (excepting any refund of members' contributions with
interest where appropriate) payable under the Schemes on the
death of any person while in employment to which the Schemes
relate are insured fully under a policy with an insurance
company of good repute and there are no grounds on which that
company might avoid liability under that policy.
5.6 CONTRIBUTIONS
Contributions to the Schemes are not paid in arrears and all
contributions and other amounts which have fallen due for
payment by the Vendor have been paid. The Vendor has (to the
extent that it will be required to do) discharged its
liability (if any) to pay or reimburse (whether wholly or in
part) anyone who has paid any costs, charges or expenses which
have been incurred by or in connection with the Schemes.
5.7 VENDOR'S OBLIGATIONS
The Vendor:
(a) has been admitted to participation in the Schemes on
the same terms as apply generally to other employers
participating in the Schemes;
(b) has observed and performed those provisions of the
Schemes which apply to it; and
(c) has at all material times held or been named in
contracting-out certificates referable to the Schemes
and so far as the Warrantors are aware there are no
circumstances which may result in the withdrawal or
revocation of those certificates.
5.8 COMPLIANCE
Each Scheme:
(a) is an exempt approved scheme (within the meaning of
Section 592 of the Income and Corporation Taxes Act
1988; and
(b) complies with and has at all times been administered
in accordance with all applicable laws, regulations
and requirements (including those of the Board of
Inland Revenue and of trust law).
53
<PAGE>
5.9 LITIGATION
Neither of the Schemes nor the Vendor nor any member of the
Unicomp Group is engaged or involved in any proceedings which
relate to or are in connection with the Schemes or the
benefits thereunder and no such proceedings are pending or
threatened and so far as the Warrantors are aware there are no
facts likely to give rise to any such proceedings. In this
sub-paragraph 'proceedings' include any litigation or
arbitration and also include any investigation or
determination by the Pensions Ombudsman.
5.10 There are not, have not been, and to the best of the knowledge
and belief of the Warrantors will not be any circumstances
which may give rise to a liability (there or thereafter) on
the Purchaser under Section 140 of the Pension Schemes
(Northern Ireland) Act 1993 or Article 75 of the Pensions
(Northern Ireland) Order 1995;
5.11 To the best of the knowledge and belief of the Warrantors all
information which has been made available to the Purchaser or
to the Purchaser's Actuary on or before the date of this
Agreement or which may hereafter be so made available
concerning matters referred to in this Schedule is and will be
complete and accurate in all material respects and all
documentation and records in respect of the Schemes are up to
date and so far as the Warrantors are aware, complete and
accurate in all respects.
6. DISPUTES
Any dispute between the Warrantors and the Purchaser or ICS' Actuary
and the Purchaser's Actuary concerning the calculation of the Basic
Transfer Amount referred to in Part I of this Schedule or any other
matter of an actuarial nature shall in the absence of agreement
between them be referred to an independent actuary agreed by the
Vendor and the Purchaser or failing such agreement within fourteen
days of the first nomination of any actuary by one of them to the
other appointed by the President for the time being of the Institute
of Actuaries on the application of either the Vendor or the Purchaser.
Such independent actuary shall act as an expert and not as an
arbitrator and his expenses shall be borne equally by the Vendor and
the Purchaser or as such independent actuary directs and the decision
of such independent actuary shall in the absence of manifest error be
final and binding on both parties.
7. ANNOUNCEMENTS
The Warrantors shall procure that no announcements (whether in writing
or not) will be made to the employees of the Vendor concerning the
matters raised in this Schedule without the prior consent in writing
of the Purchaser such consent not to be unreasonably withheld or
delayed.
54
<PAGE>
8. DISCLOSURE
Each party will procure that all information which the Warrantors, the
Purchaser, ICS' Actuary or the Purchaser's Actuary may reasonably
request from any of them concerning matters relating to this Schedule
and all materials as they may reasonably require in order to agree the
Basic Transfer Amount referred to in Part I of this Schedule will be
supplied to them expeditiously.
9 SEX EQUALITY
The Warrantors shall indemnify and keep indemnified the Purchaser
against any liability concerning pension or life assurance benefits
which the Purchaser, or any company associated with the Purchaser may
incur in relation to an employee of the Vendor or to such an employee's
dependants and which is due to an infringement of any equalisation
requirement on the part of the Vendor, the Warrantors (or any of them)
or the trustees of the Schemes relating to such employee's entitlement
under the Schemes or such employee's employment with the Vendor or any
member of the Unicomp Group.
For the purpose of this paragraph "equalisation requirement" means any
requirement of Article 119 of the EC Treaty and/or any other United
Kingdom or European Community legislation concerning equality of pay or
other employee benefits for men and women.
10 DAMAGES FOR BREACH OF PENSION WARRANTIES
In determining the damages flowing from any breach of Warranties
contained in clause 5, the Purchaser shall be deemed to be under a
liability:
10.1 to provide and to continue to provide any benefits of a kind
referred to in that clause which are now provided or have been
announced or are proposed; and
10.2 to procure and to continue to procure the provision of
benefits (without any reduction) which are now payable
(whether immediately, prospectively or contingently) under the
Schemes and under any other arrangements of a kind described
in that clause which are now in existence or are proposed and
to maintain and to continue to maintain any discretionary
practices of a kind referred to in that clause which have
hitherto been carried on.
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SCHEDULE 9
WARRANTIES
1. ASSETS
1.1 OWNERSHIP OF ASSETS
1.1.1 Except for current assets subsequently acquired, sold
or realised in the ordinary course of business the
Vendor owned absolutely at the Accounts Date and
still owns absolutely all the Assets.
1.1.2 The Vendor has not disposed of or agreed to dispose
of or granted or agreed to grant any security or
other encumbrance in respect of any of the Assets.
1.1.3 None of the Assets is subject to, and there is no
agreement or commitment to give or create, any
option, lien or encumbrance over any of the Assets.
1.1.4 None of the Assets has been purchased on terms that
property does not pass to the Vendor until full
payment is made by it to the supplier or otherwise on
a deferred terms basis.
1.1.5 There has been no exercise, purported exercise or
claim for any charge, lien, encumbrance or equity
over any of the Assets and there is no dispute
directly or indirectly relating to any of the Assets.
1.2 FIXED ASSETS
1.2.1 The Appendix attached to the Management Accounts
contains full and accurate details of the Fixed
Assets.
1.2.2 The plant, machinery, vehicles and other equipment
comprised in the Fixed Assets:
(a) are in a proper state of repair and condition
and satisfactory working order;
(b) have been regularly and properly maintained;
(c) are adequate for and not surplus to the
requirements of the Business;
(d) would not be expected (if the sale of the
Business did not
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take place) to require replacements or additions
at a cost in excess of L10,000 within a period
of 6 months after the Completion Date;
1.2.3 Maintenance contracts are in full force and effect in
respect of all Assets owned or used in relation to
the Business which it is normal or prudent to have
maintained by outside or specialist contractors.
1.2.4 All plant, machinery, vehicles and equipment owned or
used by or in the Business is in reasonable working
order having regard to its age, has been maintained
on a regular basis by competent personnel and so far
as the Warrantors are aware, none is dangerous,
inefficient, out-of-date, unsuitable or in need of
renewal or replacement.
1.2.5 In respect of all plant, machinery, vehicles and
equipment used in relation to the Business on lease:
(a) details of rentals due from the Vendor are
stated in the Disclosure Letter and are no less
than the amount properly payable under such
lease having regard to all its terms, and at the
date hereof the Warrantors have no actual
knowledge that any circumstance exists by virtue
of which the lessor is or might be entitled to
an upward adjustment to the rental;
(b) it is and has at all times been used for a
qualifying purpose in the requisite period in
accordance with Chapter V Part II Capital
Allowances Act 1990 and was purchased by the
relevant lessor as principal acting for itself
and without intervention of any agent;
(c) no inquiry or investigation is being conducted
by the Inland Revenue concerning the
availability to the lessor or lessee of capital
allowances in respect of the plant and machinery
concerned.
1.3 STOCKS
1.3.1 None of the Stocks is obsolete, unusable,
unmarketable or inappropriate or of limited value in
relation to the Business and none of the Contracts is
likely to result in this being untrue.
1.4 DOCUMENTS STAMPED
1.4.1 All documents which in any way affect the right,
title or interest of the Vendor in or to any of the
Assets and which attract stamp duty have been duly
stamped within the requisite period for stamping.
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2. TRADING
2.1 BUSINESS AND FINANCIAL POSITION
2.1.1 Since the Accounts Date:
(a) the Business has been continued in the ordinary
and normal course as regards its nature, extent
and manner of carrying it on;
(b) neither the turnover nor the financial or
trading position of the Business has
deteriorated;
(c) the Vendor has not borrowed or raised any money
or taken any financial facility in relation to
the Business except for the overdraft facilities
from its bankers specified in the Disclosure
Letter;
(d) the Vendor has paid the creditors of the
Business in accordance with their respective
credit terms and there are no amounts owing by
the Vendor which have been due for more than 6
weeks.
2.1.2 So far as the Warrantors are aware, the trading
prospects of the Business have not been adversely
affected as a result of any event or circumstance
which has arisen since the Accounts Date.
2.1.3 Since the Accounts Date the Vendor has not done or
omitted to do anything which might prejudicially
affect the Goodwill, there has been no material
change in the terms and conditions of employment or
engagement of any employees or officers engaged in
the Business, no contracts or commitments of an
unusual or long term nature relating to the Business
or Assets to be sold hereunder have been entered into
and the Vendor has kept in place its existing
insurance cover on the Business and Assets being sold
hereunder.
2.2 EXISTING SUPPLIERS AND CUSTOMERS
So far as the Warrantors are aware:
(a) no supplier of the Business will as a result of the
acquisition of the Business by the Purchaser or for
any other reason cease supplying the Business or
substantially reduce its supplies to the Business
after Completion;
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(b) no customer of the Business will as a result of the
acquisition of the Business by the Purchaser or for
any other reason terminate or materially reduce, its
relationship with the Business after Completion.
2.3 LICENCES AND CONSENTS
2.3.1 The Vendor has obtained all necessary licences and
consents from any person, authority or body for the
proper carrying on of the Business and is not in
breach of any of their terms or conditions.
2.3.2 Details of all of the licences and consents are set
out in the Disclosure Letter and the Warrantors are
not aware of any reason why they should not be
capable of being transferred to or obtained by the
Purchaser without the necessity for any special
arrangement or expense.
2.4 INSURANCE
2.4.1 The Vendor has in relation to the Business and Assets
effected all insurances required by law to be
effected by it.
2.4.2 The Vendor maintains and has maintained with a
reputable insurance office or underwriter adequate
insurance cover against all risk prudently insured
against by companies carrying on a business similar
to the Business and in particular:
(a) the Assets are covered against those risks to
their full replacement or reinstatement value
(including where relevant the cost of any
demolition and of all fees and expenses which
may be incurred in such replacement or
reinstatement) free from any deduction or
excess;
(b) the Vendor is adequately covered against
personal accident, public and product liability,
loss of profits, consequential loss, employers'
liability, acts of terrorism, and other risks
prudently covered by insurance by companies
carrying on a business similar to the Business;
and
(c) in respect of policies insuring those of the
Leasehold Properties where the Vendor is
responsible for maintaining the insurance the
policy conforms in all respects to the
requirements of the relevant lease.
2.4.3 All premiums due on the policies in respect of such
insurance cover ("the Policies") have been paid; all
the other conditions of the Policies have been
performed and observed; and none of the Policies has
or may become void or voidable as a result of an act
or omission of the Vendor.
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2.4.4 None of the Policies is subject to any special or
unusual terms or restrictions or to the payment of
any premium in excess of the usual rate.
2.4.5 The Policies, together with the receipts for the
latest premiums payable in respect thereof, are in
the possession of the Vendor.
2.4.6 No claim is outstanding either by the insurer or the
insured under any of the Policies and no claim
against the Vendor by any third party is outstanding
in respect of any risk covered by any of the Policies
or by any policy previously held by the Vendor
relating to the Business.
2.4.7 The Warrantors are not aware of any circumstances
which would or might entitle the Vendor to make a
claim under any of the Policies or which would or
might be required under any of the Policies to be
notified to the insurers.
2.4.8 The Vendor has no keyman insurance or equivalent
insurance with respect to any of its directors or
employees.
2.5 JOINT VENTURES AND PARTNERSHIPS
The Vendor:
(a) is not and has not been a party to any joint venture
or consortium or any partnership arrangement or
agreement or to any agreement or arrangement for
sharing commissions or other income relating to the
Business;
(b) does not conduct and has not conducted any part of
the Business through a branch, agency or permanent
establishment outside the United Kingdom;
(c) is not a member of any partnership, trade
association, society or other group, whether formal
or informal and whether or not having a separate
legal identity, in connection with the Business and
no such body is relevant to or has any material
influence over the Business as now carried on.
2.6 AGREEMENTS CONCERNING THE BUSINESS
2.6.1 There have been no arrangements and understandings
(whether legally enforceable or not) between the
Vendor and any person who is, directly or indirectly,
a shareholder or the beneficial owner of any interest
in the Vendor or any company in which the Vendor is
interested relating to the management of the Business
or the ownership or transfer of
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ownership or the letting of any of the Assets or the
provision of finance, goods, services or other
facilities to or by the Vendor or otherwise in any
way relating to the Business or the Assets.
2.6.2 The Vendor has not been a party to any agency,
distributorship, marketing, purchasing, manufacturing
or licensing agreement or arrangement or any
restrictive trading or other agreement or arrangement
pursuant to which any part of the Business has been
carried on or which in any way has restricted its
freedom to carry on the whole or any part of the
Business or to use or exploit any of the Assets in
any part of the world in such manner as it thought
fit.
2.6.3 Compliance with the terms of this Agreement does not
and will not conflict with, result in the breach of
or constitute a default under any of the terms,
conditions or provisions of any agreement or
instrument to which the Vendor is now a party
relating to the Business.
2.7 STATUTORY RESTRICTIONS
2.7.1 The Vendor has not committed or omitted to do any act
or thing in relation to the Business which would give
rise to any fine or penalty.
2.7.2 The Vendor is not and has not been a party in
relation to the Business to any agreement practice or
arrangement which in whole or in part:
(a) contravenes or is subject to registration under
the Restrictive Trade Practices Acts 1976 and
1977;
(d) contravenes the provisions of Part IX of the
Fair Trading Act 1973;
(c) would or might result in a reference to a
`consumer trade practice' within the meaning of
the Fair Trading Act 1973 s 13, and be liable to
reference to the Consumer Protection Advisory
Committee under Part II of the said Act;
(d) contravenes the provisions of the Trade
Descriptions Act 1968;
(e) contravenes any provisions of the Treaty of Rome
or any other anti-trust legislation or
regulations;
(f) contravenes any provision of the Consumer Credit
Act 1974;
(g) contravenes any provision of the Unfair Terms in
Consumer Contracts Regulations 1994;
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(h) contravenes any other anti-trust, anti-monopoly
or anti-cartel legislation.
2.7.3 The Vendor is not and has not engaged in any
anti-competitive practice, as defined in the
Competition Act 1980, in relation to the Business.
2.7.4 No investigations or enquiries by or on behalf of any
governmental or other body in respect of the Vendor,
the Business or any of the Assets is pending or in
existence.
2.7.5 Neither the Vendor nor any of its officers, agents or
employees (during the course of their duties in
relation to the Business) has committed or omitted to
do any act or thing the commission or omission of
which is or could be in contravention of any Act,
Order, Regulation or the like giving rise to any
fine, penalty, default, proceedings or other
liability in relation to the Business or any of the
Assets.
2.8 LITIGATION
In relation to the Business or its employees, neither the
Vendor nor any member of the Unicomp Group is engaged in any
capacity in any litigation, arbitration, prosecution or other
legal proceedings or in any proceedings or hearings before any
statutory or Governmental body, department, board or agency
including, for the avoidance of doubt, but without prejudice
to the generality of the foregoing, claims concerning breach
of contract, product liability, third party liability (whether
or not in connection with a product) and liability for
pollution or contamination; no such matters are pending or, to
the best of the knowledge and belief of the Warrantors
threatened; and the Warrantors are not aware of any
circumstances which may give rise to any such matter,
including, in particular, but without prejudice to the
generality of the foregoing, contractual liability (whether or
not in connection with a product), third party liability
(whether or not in connection with a product) and liability
for pollution or contamination.
2.9 BUSINESS NAMES
The Vendor does not use any name or names for any purpose in
connection with the Business other than its full corporate
name.
2.10 VENDOR'S ACTIVITIES
2.10.1 The Vendor is entitled to enter into and carry out
the provisions of this Agreement and has full power
and authority to sell the Assets to the Purchaser
without obtaining the consent of any third party.
2.10.2 Compliance with the terms of this Agreement, and any
document
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entered into by the Vendor in accordance with it,
does not and will not conflict with or result in a
breach of any of the provisions of the Vendor's
Memorandum or Articles of Association.
2.10.3 The Vendor has at all times carried on the Business
in all respects in accordance with its Memorandum and
Articles of Association for the time being in force
and any other documents to which it is or has been a
party.
2.10.4 Neither the Vendor nor any member of the Unicomp
Group has any interest, directly or indirectly, in
any company or business other than the Business which
is or is likely to be or become competitive with the
Business, save as registered holder or beneficial
owner of not more than 5 per cent of any class of
securities of any company which is listed and/or
dealt in on The London Stock Exchange.
2.11 GUARANTEES AND INDEMNITIES
There is not now outstanding in respect of the Business any
guarantee or agreement for indemnity or for suretyship given
by or for the accommodation of the Business otherwise than by
the Vendor.
3. CONTRACTS
3.1 DISCLOSURE OF CONTRACTS
The Contracts and the Leases constitute all the contracts and
other engagements, whether written or oral, referable to the
Business to which the Vendor is now a party, apart from the
contracts of employment of the employees of the Business.
3.2 NATURE OF CONTRACTS
3.2.1 None of the Contracts:
(a) is of an unusual, abnormal or onerous nature;
(b) is for a fixed term of more than 6 months;
(c) is of a long-term nature (that is to say
incapable of performance in accordance with its
terms within 6 months after it was entered into
or undertaken);
(d) will be incapable of termination in accordance
with its terms by the Purchaser on 60 days'
notice or less;
(e) is of a loss-making nature (that is to say known
to have been
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likely to result in a loss to the Vendor on
completion of performance if the Vendor had not
sold the Business);
(f) will not be capable of being readily fulfilled
or performed by the Purchaser on time without
undue or unusual expenditure of money or
personnel;
(g) will not involve payment by the Purchaser by
reference to fluctuations in the index of retail
prices or any other index;
(h) involves the supply of goods or services the
aggregate sales value of which will represent in
excess of 10 per cent of the anticipated
turnover of the Business for the period of 12
months following the Completion Date;
(i) was entered into in any way otherwise than in
the ordinary and normal course of the Business.
3.2.2 The performance of this Agreement will not relieve
any other party to any Contract from its obligations
or enable it to determine any of them.
3.2.3 Neither the Vendor nor any member of the Unicomp
Group has committed any material breach of any such
Contract and, so far as the Warrantors are aware, no
right of termination has become exercisable
thereunder.
3.3 DEFAULTS UNDER AGREEMENTS
3.3.1 The Vendor is not nor would it, if the sale of the
Business did not take place, with the lapse of time
become:
(a) in default under any of the Contracts or in
respect of any other obligations or restrictions
binding upon it in relation to the Business nor
has it waived any rights or privileges under any
of the Contracts;
(b) in default under any provisions existing by
reason of membership of any association or body
relating to the Business;
(c) liable in respect of any representation or
warranty (whether express or implied) or matter
giving rise to a duty of care on the part of the
Vendor relating to the Business.
3.3.2 No threat or claim of default under any of the
Contracts or any other agreement, instrument or
arrangement to which the Vendor is a party relating
to the Business or the Assets has been made and is
outstanding
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against the Vendor and there is nothing whereby any
of the Contracts or any other such agreement,
instrument or arrangement may be terminated or
rescinded by any other party or whereby the terms may
be made more onerous as against the Vendor or the
Purchaser or whereby the Business or the Assets may
be prejudiced as a result of anything done or omitted
or permitted to be done by the Vendor.
3.4 OUTSTANDING OFFERS
No offer, tender or the like relating to the Business, which
is capable of being converted into an obligation of the
Business by an acceptance or other act of some other person,
firm or corporation, is outstanding.
3.5 DEFECTIVE PRODUCTS AND SERVICE LIABILITIES
3.5.1 The Vendor has not manufactured or sold products
which were or are or will become in any material
respect faulty or defective or which did not or do
not comply in any material respect with any
warranties or representations expressly or impliedly
made by the Vendor or with all applicable
regulations, standards and requirements.
3.5.2 The Vendor has not accepted any liability or
obligation to service, repair, maintain, take back or
otherwise do or not do anything in respect of any
goods or products that would apply after the goods or
products have been delivered by it.
3.6 PURCHASES AND SALES FROM OR TO ONE PARTY
Neither more than 25 per cent of the aggregate amount of all
the purchases nor more than 25 per cent of the aggregate
amount of all the sales of the Business are obtained or made
from or to the same supplier or customer (including any person
in any way connected with a supplier or customer) nor is any
material source of supply to the Business or any material
outlet for the sales of the Business in jeopardy or likely to
be in jeopardy.
4. ACCOUNTS
4.1 THE ACCOUNTS
4.1.1 The Accounts have been prepared in accordance with
the historical cost convention.
4.1.2 The Accounts:
(a) give a true and fair view of the financial
position of the Business in all respects;
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(b) comply with the requirements of The Companies
Act CA 1985 and other relevant statutes,
(including any amending legislation);
(c) comply with current statements of standard
accounting practice and financial reporting
standards applicable to a United Kingdom
company;
(d) are not affected by any extraordinary or
non-recurring item;
(e) fully disclose all the assets and liabilities
(including contingent, unquantified or disputed
liabilities) of the Business as at the Accounts
Date.
4.2 MANAGEMENT ACCOUNTS
(a) The Management Accounts of the Vendor in the agreed
form are substantially correct insofar as they state
the income arising in the Business during the period
to which they relate and all expenses in that period
directly relating to the Business and are not
materially misleading in any respect.
(b) Proper provision has been made in the Management
Accounts in accordance with generally accepted
accounting principles:
(i) for depreciation of assets;
(ii) for any material liabilities in relation to
the disposal of any assets of the Business;
and
(iii) for bad or doubtful debts;
(c) Stock and work-in-progress have respectively been
valued in the Management Accounts at the lower of
cost and net realisable value.
4.3 BOOKS AND RECORDS
All the books and records of the Vendor which are to be
delivered to the Purchaser in accordance with this Agreement
(including all invoices and other records required for value
added tax purposes):
(a) have been fully, properly and accurately kept and
completed;
(b) do not contain any material inaccuracies or
discrepancies of any kind;
(c) give and reflect a true and fair view of the
financial, contractual and
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trading position of the Business and of its plant and
machinery, fixed and current assets and liabilities
(actual and contingent), debtors and creditors and
stock-in-trade and all other matters which would
normally be expected to appear in them.
4.4 VAT
(a) In relation to Value Added Tax: (a) all amounts due
to be paid to HM Customs & Excise ("CUSTOMS") prior
to Completion in respect of the Business have been
paid and, in relation to the Business, no dispute
exists between the Vendor or any member of the
Unicomp Group and Customs; and (b) there is set out
in the Disclosure Letter with express reference to
this warranty full details of each of the Properties
or other assets (if any) hereby agreed to be sold to
which Part XV of the Value Added Tax (General)
Regulations 1985 (adjustments to the deductions of
input tax on capital items) applies or will apply,
including, in particular:
(i) a description (including in the case of land
or a building or part of a building, the
nature of the tenure and the time it has to
run);
(ii) the date the first interval commenced and the
number of remaining intervals in the period of
adjustment;
(iii) the total input tax incurred; and
(iv) the proportion of input tax for which credit
had been claimed in any tax year, stating
whether provisionally or finally.
5. PROPERTIES
5.1 USE OF PROPERTIES
5.1.1 The Vendor is in occupation of the Properties for the
purposes of the Business.
5.1.2 The Vendor does not use or occupy any property in
connection with the Business other than the
Properties.
5.2 ENCUMBRANCES
5.2.1 The Properties are free from any Security Interest.
5.2.2 The Properties are not subject to any outgoings other
than general rates, water rates and insurance for
such premises and rent and service charges
5.2.3 The Properties are not subject to any restrictive
covenants, restrictions,
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stipulations, easements, profits a prendre,
wayleaves, licences, grants, reservations or other
similar rights vested in third parties.
5.2.4 Where any such third party rights as are referred to
in Clause 5.2.3 have been disclosed in the Disclosure
Letter, they have been fully observed and performed
and any payments in respect of them due and payable
have been duly paid.
5.3 PLANNING MATTERS
5.3.1 The use of the Properties is the permitted use for
the purposes of the Planning Acts.
5.3.2 Planning permission has been obtained or is deemed to
have been granted for the purposes of the Planning
Acts with respect to the development of the
Properties and no permission has been suspended or
called in and no application for planning permission
is awaiting decision.
5.3.3 Building regulation consents have been obtained with
respect to the development of the Properties and any
alterations and improvements to them.
5.3.4 Compliance is being and has been made in all respects
with planning permissions, orders and regulations
issued under the Planning Acts and building
regulation consents and bye-laws for the time being
in force with respect to the Properties.
5.3.5 None of the Properties is listed as being of special
historic or architectural importance or is located in
a conservation area.
5.3.6 All development charges, monetary claims and
liabilities under the Planning Acts or any other
legislation have been discharged and no liability,
contingent or otherwise, is outstanding.
5.4 STATUTORY OBLIGATIONS
5.4.1 Compliance has been made with all applicable
statutory and bye-law requirements with respect to
the Properties and in particular (but without
limitation) with requirements as to fire precautions
and under the Public Health Acts, the Housing Acts,
the Roads Acts, the Office and Shop Premises Act
(Northern Ireland) 1966 the Factories Acts and the
Fire Services (Northern Ireland) Order 1984.
5.4.2 There is no outstanding and unobserved or unperformed
obligation with respect to the Properties necessary
to comply with the requirements (whether formal or
informal) of any competent authority
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exercising statutory or delegated powers.
5.5 ADVERSE ORDERS
5.5.1 There are no compulsory purchase notices, orders, or
resolutions affecting the Properties nor, to the best
of the Warrantors' knowledge, information and belief,
are there any circumstances likely to lead to any
being made.
5.5.2 There are no closing, demolition or clearance orders,
enforcement notices or stop notices affecting the
Properties nor, to the best of the Warrantors'
knowledge, information or belief, are there any
circumstances likely to lead to any being made.
5.6 CONDITION OF THE PROPERTIES
5.6.1 The buildings and other structures on the Properties
are in good and substantial repair and fit for the
purpose for which they are presently used.
5.6.2 There are no disputes with any adjoining or
neighbouring owners with respect to boundary walls
and fences or with respect to any easement right or
means of access to the Properties.
5.6.3 The principal means of access to the Properties are
over roads which have been taken over by the local or
other highway authority and which are maintainable at
public expense and no means of access to the
Properties is shared with any other party nor subject
to rights of determination by any other party.
5.6.4 Each of the Properties enjoys the main services of
water, drainage, electricity and gas.
5.6.5 None of the Properties is located in an area or
subject to circumstances particularly susceptible to
flooding.
5.6.6 No building or structure on the Properties has been
affected by structural damage or electrical defects
or by timber infestation or disease.
5.6.7 There are no rights in common or common rights
appurtenant to or over the Properties.
5.6.8 None of the Properties is located in a coal mining
area.
5.7 LEASEHOLD PROPERTIES
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5.7.1 The Vendor has paid the rent and observed and
performed the covenants on the part of the tenant and
the conditions contained in the Leases and the last
demand (or receipt for rent if issued) was
unqualified.
5.7.2 All licences, consents and approvals required from
the landlords and any superior landlords under the
Leases have been obtained and the covenants on the
part of the tenant contained in the licences,
consents and approvals have been duly performed and
observed.
5.7.3 There are no rent reviews under the Leases currently
in progress.
5.7.4 There is not outstanding and unobserved or
unperformed any obligation necessary to comply with
any notice or other requirement given by the landlord
under any of the Leases.
5.7.5 There is no obligation to reinstate any of the
Leasehold Properties by removing or dismantling any
alteration made to them by the Vendor or any
predecessor-in-title to the Vendor.
5.7.6 In the case of Leases granted for more than 21 years
the Lease is registered at either the Registry of
Deeds or, where applicable, if the term granted is
for a life or lives or is determinable on a life or
lives or if the term exceeds twenty-one years, in the
Land Registry.
5.8 TENANCIES
The Properties are not held subject to and with the benefit of
any tenancies (which expression includes sub-tenancies).
5.9 REPLIES TO ENQUIRIES
All replies by or on behalf of the Warrantors to enquiries
relating to the Properties made by or on behalf of the
Purchaser and the Purchaser's Solicitors were when given and
are now true and correct in all material respects.
6. EMPLOYMENT
6.1 EMPLOYEES
6.1.1 Appendix 10 referred to in Schedule 7 and the
information contained in the Disclosure Letter
include full and up-to-date particulars of the
identities of all the Transferring Employees their
dates of birth and commencement of employment, their
remuneration (including any agreements and
arrangements, whether binding or otherwise, relating
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to bonus, commission, incentive payments, profit
sharing, stock options, permanent health insurance,
medical expenses insurance, life assurance, pension
benefits and retirement annuities), their notice
periods and any agreements and arrangements, whether
binding or otherwise, for the payment of compensation
on termination of employment, including, in
particular redundancy entitlement and early
retirement pension benefits entitlement in a
redundancy situation.
6.1.2 The Warrantors have disclosed to the Purchaser in the
Disclosure Letter true and complete copies of all
contracts of employment and other documents relating
to the employment of the Transferring Employees.
6.1.3 With respect to the Transferring Employees, none of
the duties or liabilities which will be transferred
to the Purchaser by virtue of Regulation 5(2) of the
Transfer of Undertakings (Protection of Employment)
Regulations 1981 (S.I. 1981 No. 1794) are unusual or
are of a long-term nature or involve or include or at
the time of such transfer will or may involve or
include obligations duties or liabilities of a nature
or magnitude calling for special mention (and in
particular, but without limitation, liabilities in
respect of either any injury which may have been
sustained or any breach of their respective terms of
employment).
6.1.4 Neither the Vendor nor any member of the Unicomp
Group has made any offer to employ any person in the
Business which has yet to be accepted or rejected.
6.1.5 There are no persons who previously worked in the
Business or are currently working in the Business who
are on maternity leave or other leave of absence and
have a statutory or contractual right to work in the
Business.
6.1.6 Neither the Vendor nor any member of the Unicomp
Group has offered or agreed any future variations in
the terms or conditions of employment of any of the
Transferring Employees.
6.1.7 All contracts of employment between the Vendor and
the Transferring Employees may be terminated by three
months' notice or less without giving rise to any
claim for damages or compensation.
6.1.8 The Disclosure Letter contains full particulars of
any existing or threatened litigation or dispute
involving or relating to any of the employees of the
Vendor who are engaged in the Business and of all
matters and circumstances of which the Warrantors are
aware which could give rise to any legal claim, right
of action or other liability whatsoever in respect of
any of them.
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6.1.9 The Disclosure Letter contains (with express
reference to this warranty) full and up-to-date
particulars of all collective agreements,
arrangements and other understandings which the
Vendor or any member of the Unicomp Group have with
any trade union, staff association or other body
representing the employees engaged in the Business
and the Warrantors have disclosed to the Purchaser in
the Disclosure Letter all documents relating to such
agreements, arrangements and understandings. The
Vendor has complied with all its obligations under
Regulation 10 of the Transfer of Undertakings
(Protection of Employment) Regulations 1981, the
Collective Redundancies and Transfer of Undertakings
(Protection of Employment) (Amendment) Regulations
1995 and under the aforementioned collective
agreements, arrangements and understandings and there
is no existing or threatened litigation or dispute
involving or relating to any trade union, staff
association or other body representing the said
employees.
6.1.10 There is no existing or, so far as the Warrantors are
aware, threatened industrial action or trade dispute
involving or relating to the employees engaged in the
Business.
6.1.11 There are no existing or, so far as the Warrantors
are aware, threatened enquiries or investigations
involving or relating to the Business or the
employees by the Fair Employment Commission or the
Equal Opportunities Commission or other similar
authority.
6.1.12 There are no outstanding liabilities for industrial
training levy or for any other statutory or
governmental levy or charge relating to the Business.
6.1.13 The Vendor has complied with the Fair Employment and
Treatment (Northern Ireland) 1998 ("the Fair
Employment Order") in all respects and in particular:
(a) The Vendor has registered with the Fair
Employment Commission in accordance with Article
48 of the Fair Employment Order;
(b) The Vendor has filed appropriate monitoring
returns with the Fair Employment Commission
within the prescribed time-limits and the Fair
Employment Commission has not rejected these or
required further information;
(c) The Vendor has conducted a review of its
employment practices within the last three years
in accordance with Article 55 of the Fair
Employment Order;
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(d) The Vendor maintains proper records of employees
and applicants as required by the Fair
Employment Order and the Vendor has a proper
system for ensuring that the information is not
misused in any way that contravenes the Fair
Employment Order;
(e) The Fair Employment Commission has not made any
recommendation, direction or notice under
Articles 56-61 of the Fair Employment Order to
the Vendor;
(f) The Vendor is not in default nor an unqualified
person as defined in Article 62 of the Fair
Employment Order;
(g) The Vendor has not received any notification
from the Fair Employment Commission or elsewhere
that any of its suppliers is an unqualified
person as defined by Article 62 of the Fair
Employment Order;
(h) The Vendor has not been notified by the Fair
Employment Commission of any complaint made
against it to the Fair Employment Tribunal
within the last twelve months, no questionnaire
has been issued to the Vendor in accordance with
the Fair Employment Order within the last twelve
months and there is no case outstanding with the
Fair Employment Tribunal in which the Vendor is
involved or on appeal from it.
6.1.14 The pensions warranties contained in Part III of
Schedule 8 apply and shall be deemed to be
incorporated in this Schedule as if set out in full.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 All Intellectual Property Rights used by the Vendor in
connection with the Business are in full force and effect and
not subject to any application for cancellation or amendment
or licence of right or compulsory licence and are vested in
and beneficially owned solely by the Vendor free from and
clear of any restrictions or encumbrances and (where
registration is possible) the Vendor is registered as
proprietor thereof and none of the trade or service marks
forming part of the Intellectual Property Rights is associated
with any trade or service marks held by a proprietor other
than the Vendor.
7.2 So far as the Warrantors are aware by carrying on the Business
in the ordinary and usual course the Vendor does not infringe
the Intellectual Property Rights of any other person.
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7.3 The Vendor has not granted and is not obliged to grant any
licences under any Intellectual Property Rights owned by it or
licensed to it or to furnish know-how to any person.
7.4 The Vendor has not in relation to the Business been granted
any licence or right under or in respect of any Intellectual
Property Rights of a third party and has not manufactured,
sold, supplied or developed anything which is the subject of
any such Intellectual Property Rights, whether presently
existing or (to the knowledge of the Warrantors) applied for
and by carrying on the Business in the ordinary course the
Vendor is not and will not become liable to pay any royalty or
like fee.
7.5 No disclosure has been made to any person other than the
Purchaser of any of the commercial or industrial know-how or
the financial or trade secrets of the Vendor except properly
and in the ordinary course of the Business and on the footing
that such disclosure is to be treated as being of a
confidential nature.
7.6 There has occurred no act, omission or event which would
entitle any authority or person to cancel, forfeit or modify
any Intellectual Property Rights owned or used by the Vendor
in the ordinary course of the Business and there is no
litigation or other proceedings (whether legal or
administrative) pending or threatened involving any of the
Intellectual Property Rights or any circumstance likely to
give rise to any such proceeding and to the best of the
information, knowledge and belief of the Warrantors no person
has made any claim adverse to the continuing enjoyment by the
Vendor of the Intellectual Property Rights.
7.7 Since the Accounts Date the Vendor has not sold or otherwise
disposed of any Intellectual Property Rights owned or used by
it in the ordinary course of the Business.
7.8 There exists no actual or threatened infringement (including
misuse of confidential information) or any event likely to
constitute an infringement or breach by any third party of any
of the Intellectual Property Rights held or used by the Vendor
in the Business within the past three years.
7.9 The Vendor does not use or otherwise carry on the Business
under any name other than its corporate name.
7.10 All inventions made by any employees of the Vendor and used or
enjoyed by the Vendor for the purposes of the Business were
made in the course of the normal duties of the employee
concerned and no claim for compensation under section 40
Patents Act 1977 or otherwise has been made against the Vendor
nor to the best of the knowledge information and belief of the
Warrantors are any such claims likely to be made.
7.11 All necessary back-up systems are utilised to ensure that in
the event of any fault in any computer system used by the
Vendor, no more than one day's data might be lost and no such
faults have occurred in the last 12 months.
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7.12 The Vendor has complied in all material respects with the
provisions of the Data Protection Act 1984 and no order has
been threatened against the Vendor for erasure of personal
data under section 24(3) Data Protection Act 1984.
8. YEAR 2000
8.1 For the purposes of this warranty:
"SOFTWARE PRODUCT" means any product owned or used or
exploited by the Vendor for the purposes of the Business that
stores, retrieves, processes or presents date information; and
"MILLENNIUM COMPLIANT" means the ability to provide all of the
following functions:
(a) accurately process all date information whether
before, during or after January 1, 2000, including,
without limitation, accepting date input, providing
accurate date output and performing accurate
calculations involving dates or portions of dates;
(b) function accurately, efficiently and without
interruption before, during and after January 1, 2000
without any change in operations, or in any input or
output procedures;
(c) accurately process date input in a way that does not
create any ambiguity as to century;
(d) accurately store, retrieve and process date
information in a manner that does not create any
ambiguity as to century; and
(e) accurately present all date output information in a
manner that does not create any ambiguity as to
century.
8.2 All of the Software Products in respect of which the
intellectual property in them is owned by the Vendor
(including, for the avoidance of doubt but without prejudice
to the generality of the foregoing, "Distributex" products and
Version 2 of Unipims HR as modified, adapted and developed by
or on behalf of the Vendor) are Millennium Compliant.
8.3 With regard to all Software Products (other than those in
which the intellectual property is owned by the Vendor and
which are the subject of warranty 8.2 above) which the Vendor
uses for the purposes of the Business, the Vendor has
satisfied itself that, to the best of its knowledge and belief
having made due and careful enquiry of the software authors
and providers of such Software Products and having
incorporated required modifications, adaptations and up-grades
to them, they are Millennium Compliant.
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8.4 The Vendor has put in place a business continuity programme
for those aspects of the Business which are or may be
susceptible to Year 2000 difficulties which will ensure that
no significant or material impact will be suffered by the
Business should it be discovered that any of the Software
Products used in the Business are not Millennium Compliant.
9. ENVIRONMENTAL MATTERS
9.1 In relation to the Business, the Vendor:
9.1.1 complies and has at all times complied with all
Environmental Laws and Environmental Licences;
9.1.2 has obtained and maintained in full force and effect
all Environmental Licences, and there are no
conditions, facts or circumstances entitling any such
Environmental Licence to be revoked, suspended,
amended, varied, withdrawn or not renewed or which
would prevent compliance with any Environmental
Licence;
9.1.3 is not and is not likely to be required by any
Environmental Licence or any Environmental Law or as
the result of any Environmental Claim to incur any
expenditure or to desist from taking any action which
might have a material adverse effect on the Business.
9.2 There are attached to the Disclosure Letter complete and
up-to-date copies of all Environmental Licences and all
orders, notices, directions, applications, appeals, amendments
and reports and any other communications relating to or in
connection with any Environmental Licence.
9.3 No Environmental Claim is pending or has been made or
threatened against the Vendor in relation to the Business or
any of its past or present directors, secretary or senior
employees in their capacity as such or any occupier of any
property owned or leased by the Vendor for the purpose of the
Business and the Warrantors do not have any reason to believe
that the Vendor or any of its officers has or is likely to
have any liability in relation to Environmental Matters.
9.4 No Relevant Substance has been deposited, disposed of, kept,
treated, imported, exported, transported, processed,
manufactured, used, collected, sorted or produced at any time,
or is present in the environment (whether or not on property
owned, leased, occupied or controlled by the Vendor for the
purposes of the Business) in circumstances, and there is
nothing arising out of the Business, which could result in an
Environmental Claim against the Vendor or which would entitle
any authority to bring an Environmental Claim against the
Vendor or which would have a material adverse effect on the
use or value of any property owned, leased, occupied or
controlled by the Vendor for the purposes of the Business.
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9.5 There are attached to the Disclosure Letter full details
(including, where appropriate copies of relevant reports or
other documents) of any inspections, investigations, studies,
audits, tests, reviews or other analyses in relation to
Environmental Matters relating to the Business or any property
now owned, leased or occupied by the Vendor or any member of
the Unicomp Group for the purposes of the Business.
10. GENERAL
10.1 MATERIAL INFORMATION
10.1.1 All information including all information contained
in the Disclosure Letter, given by the Vendor, the
Vendor's Solicitors or the Vendor's accountants to
the Purchaser, the Purchaser's Solicitors or the
Purchaser's accountants relating to the Business or
Assets was when given, and is, true, accurate and
comprehensive in all respects.
10.1.2 To the best of the Warrantors' knowledge, information
and belief, there are no material facts or
circumstances in relation to the Business or Assets
which have not been fully and fairly disclosed in
writing to the Purchaser or the Purchaser's
Solicitors and which, if disclosed, might reasonably
have been expected to affect the decision of the
Purchaser to enter into this Agreement.
10.1.3 Neither the Vendor nor any member of the Unicomp
Group has any interest in any other company or
business which has a close trading relationship with
or is in competition with the Business.
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SCHEDULE 10
1. Limitation of Warrantors' liability - general
The provisions of this Schedule shall operate to limit the liability of
the Warrantors under and in respect of the provisions of clause 16 of
this Agreement and the Warranties. The limitations of the liability of
the Warrantors contained in this Schedule shall apply equally to any
claim which may be brought by any assignee of the benefit of the
Warranties.
2. Liability of Warrantors to assignee
If the benefit of the Warranties is assigned, the liability of the
Warrantors shall be no greater than it would have been if the Purchaser
had remained the owner of the Assets and had retained the benefit of
the Warranties.
3. The Warrantors acknowledge that the benefit of the Warranties may be
assigned to a successor of the Purchaser.
4. Credit for improvements
Any liability of the Warrantors under the Warranties shall be reduced
by an amount equal to:-
4.1 the amount of or by which any taxation for which the Purchaser
is accountable is extinguished or reduced as a result of the
claim giving rise to the liability;
4.2 the amount of any credits, recoveries or other benefits which
have actually been received or obtained by the Purchaser by
reason of or arising out of the matters giving rise to the
liability.
5. Time limit for warranty claims
In respect of any claim for breach of the Warranties the Purchaser
shall upon becoming aware of any matter or event which could reasonably
be considered to give rise to a claim under the Warranties give notice
in writing to the Warrantors, (specifying in reasonable detail the
event, matter or default which may give rise to the claim, the breach
that results and if practicable and known to the Purchaser an estimate
of the amount claimed) not later than the expiration of the appropriate
period (as defined below). Any such claim shall be deemed (if it has
not been previously satisfied, settled or withdrawn) to have been
withdrawn at the expiration of one year after the expiration of the
appropriate period, unless proceedings in respect of it have commenced
by being issued and served on the Warrantors. For the purpose of this
clause, "the appropriate period" in respect of any claim under the
Warranties is two years and six calendar months from Completion.
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6. Exclusion of small claims
The Warrantors shall be liable, in respect of any claim brought by the
Purchaser for a breach of the Warranties, only if the liability of the
Warrantors for all such claims would exceed in aggregate L25,000 and,
in that event, the Warrantors shall be liable for the total amount of
such claims and not merely for the excess.
7. Ceiling on claims
The aggregate total liability of the Warrantors, arising by reason of
any claims under the Warranties, shall not exceed the Consideration as
defined in Schedule 11 of this Agreement.
8. Effect of post-completion events
The Warrantors shall not be liable for any claim under the Warranties
which would not have arisen but for some voluntary act, event, omission
or default of the Purchaser occurring after Completion otherwise than
in the ordinary course of business as carried on at Completion unless
pursuant to a contractual or other legally binding obligation preceding
Completion or taking place with the approval of all or any of the
Warrantors and which the Purchaser was, or ought reasonably to have
been, aware would give rise to the breach or claim in question.
9. Statutory references
References to statutory provisions shall be construed as references to
those provisions as amended or re-enacted (whether with or without
modification), or as their application is modified by other provisions
(whether before or after the Completion Date) from time to time, and
shall include references to any statutory provision of which they are
re-enactments (whether with or without modification) except to the
extent that any amendment or modification after Completion takes effect
retrospectively and would extend or increase the liability of the
Warrantors under the Warranties.
10. Specific limitations
10.1 The Warrantors shall not be liable for any claim for breach of
the Warranties:
10.1.1 if and to the extent such claim arises as a result
only of any changes after Completion in the
accounting bases policies or practices of the
Purchaser after Completion.
10.1.2 if and to the extent that it relates to any loss
which the Purchaser actually recovers from its
insurers or in respect of which it would have so
recovered but for any change in the terms of the
Purchaser's insurance in place at Completion made
voluntarily by the Purchaser after Completion, net of
any increased premium or other charges incurred or to
be incurred by the Purchaser as a result of making
any such claim.
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10.2 The Warrantors shall not be liable for breach of the
Warranties if the fact omission circumstance or occurrence
giving rise to or forming the basis of the claim has been
fully and fairly disclosed to the Purchaser in the Disclosure
Letter.
11. Conduct of claims
If any claim comes to the notice of the Purchaser the Purchaser shall:
11.1 as soon as reasonably practicable give written notice of the
same to the Warrantors such notice to be given in accordance
with paragraph 5 above.
11.2 not make any admission of liability agreement or compromise
with any person body or authority in relation to such claim
under the Warranties without prior consultation with the
Warrantors.
11.3 if the claim in question is as a result of or in connection
with a dispute with a third party the Purchaser shall (subject
to it being fully indemnified in respect of its costs (take
such action to avoid, dispute, resist, appeal, compromise or
contest such claim as may be reasonably requested by the
Warrantors but at the Warrantors' expense and the Warrantors
shall make available to the Purchaser all such information as
may be reasonably required to avoid, dispute, resist, appeal,
compromise or contest any claim or liability connected with
such claim.
PROVIDED THAT nothing contained in this paragraph 11 shall
oblige the Purchaser to take any action which on a reasonable
view is or may be prejudicial to the Business and/or the
Purchaser.
12. Recovery from third parties
If the Warrantors make any payment by way of damages for breach of the
Warranties ("the Payment") and the Purchaser actually receives any
payment from any third party other than the Warrantors in respect of
the same loss and which would not have been received but for the
circumstances giving rise to the claim in respect of which the Payment
was made the Purchaser shall once it has received such payment
forthwith pay to the Warrantors an amount equal to the lesser of the
amount of such payment and the Payment having deducted all costs
charges (including, for the avoidance of doubt, taxation incurred by
the Purchaser) and expenses reasonably incurred by the Purchaser in
obtaining the payment from any such third party.
13. General
13.1 Nothing herein shall in any way diminish the Purchaser's
common law obligation to mitigate its loss in respect of a
claim under the Warranties.
13.2 If any potential claim shall arise by reason of a liability
which is contingent only,
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then the Warrantors shall not be under any obligation to make
any payment pursuant to such claim until such time as the
contingent liability ceases to be contingent and becomes
actual but nothing in this clause 13.2 shall prevent the
Purchaser from giving notice to the Warrantors if it so wishes
(although it shall not be under any obligation to do so) of a
contingent liability under the terms of this Agreement albeit
that there is no liability until such time as the contingent
liability becomes an actual liability.
13.3 The Purchaser confirms to the Warrantors that it is not at the
date of this Agreement and after discussion with its
accountants and solicitors actually aware of any claim it may
have against the Warrantors under the Warranties PROVIDED THAT
such confirmation shall not constitute a general waiver by the
Purchaser of any rights which it may have under this
Agreement, including the Warranties, arising from information
(including that contained in any due diligence reports
prepared on behalf of the Purchaser in connection with the
purchase of the Business and Assets) subsequently coming into
the Purchaser's possession which might, in the future, form
the basis of a claim under this Agreement.
14. Any sums recovered by the Purchaser from the Warrantors pursuant to a
claim for breach of any of the Warranties shall for all purposes be
treated as reducing the purchase consideration for the acquisition of
the Business and Assets under this Agreement.
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SCHEDULE 11
1. INTERPRETATION.
In this Schedule where the context admits:
(1) "the Accounts" and "the Accounts Date" have the same meanings
as in clause 1.2 of this Agreement;
(2) "the Completion Accounts" means the accounts prepared in
accordance with paragraph 2 of this Schedule;
(3) "the Consideration" means the consideration for the purchase
of the Business and Assets determined in accordance with the
provisions of this Schedule;
(4) "the Provisional Consideration" means the consideration for
the purchase of the Business and Assets of L4,680,000 stated
in clause 5.1 of this Agreement;
(5) "the Purchaser's Accountants"' means PricewaterhouseCoopers,
Fanum House, Great Victoria Street, Belfast, BT1;
(6) "the Vendor's Accountants' means Arthur Anderson of Andersen
House, International Financial Services Centre, Dublin 1.
2. COMPLETION ACCOUNTS.
(A) PREPARATION.
The parties shall procure that, forthwith after Completion,
accounts for the Vendor shall be prepared and reported on in
accordance with the provisions of this Schedule and the
parties shall use their best endeavours to secure compliance
with this Schedule by their respective accountants.
(B) DESCRIPTION.
The Completion Accounts shall consist of a balance sheet of
the Vendor as at the close of business on the 30th November
1999 and a profit and loss account of the Vendor in respect of
the period from the Accounts Date to the 30th November 1999
(both dates inclusive).
(C) GENERAL REQUIREMENTS.
Subject to the specific requirements of sub-section (D) below,
the Completion Accounts shall:
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(1) be prepared as if the period from the day following
the Accounts Date to the 30th November 1999 was a
financial year of the Vendor;
(2) be prepared in accordance with the requirements of
all relevant statutes and generally accepted
accounting principles and financial reporting
standards applicable in the United Kingdom;
(3) show a true and fair view of the assets and
liabilities of the Vendor at the 30th November 1999
and the profits of the Vendor for the period from the
Accounts Date to the 30th November 1999;
(4) to ensure consistency, adopt bases and policies of
accounting applied for the purposes of the Accounts.
(D) SPECIFIC REQUIREMENTS.
In preparing the Completion Accounts:
(1) no value shall be attributed to goodwill or any other
intangible asset; and
(2) other fixed assets shall be included at the value at
which they were included in the Accounts, less
depreciation on the written down value, calculated at
the following annual rates:
Buildings : 2 per cent
Computer Equipment : 33 1/2 per cent
Motor vehicles : 25 per cent
Furnishing and Equipment : 20-25 per cent
The parties acknowledge that the Provisional
Consideration has been determined on the basis set
out in the right hand column of the Appendix
accompanying this Schedule and it is hereby agreed
between them that the Consideration shall be
determined on the basis and in accordance with the
provisions of that Appendix and specifically as set
out under the heading "Consideration".
3. PROCEDURE.
(A) SUBMISSION OF DRAFT.
The Purchaser shall use its reasonable endeavours to complete
the Completion Accounts within 20 days after the 30th November
1999 and as soon as they have been completed shall forthwith
deliver a draft of the Completion Accounts to the
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Vendor. At the same time the Purchaser will make the necessary
arrangements to allow the Vendor access to carry out a review
of the working papers in support of the draft. Unless the
Vendor shall notify the Purchaser in writing within 28 days
after receipt of such draft that it does not accept that it
complies with paragraph 2 above the Vendor shall be deemed to
have accepted such draft as complying with paragraph 2.
(B) AGREEMENT OF DRAFT.
If, within the period of 28 days referred to in sub-paragraph
(A), the Vendor shall notify the Purchaser in writing that it
does not accept that the said draft complies with paragraph 2
then the Vendor and the Purchaser shall procure that the
Purchaser's Accountants and the Vendor's Accountants shall use
their best endeavours to reach agreement within a further
period of 30 days from the expiry of that 28 day period on
adjustments to the draft to meet the objections of the Vendor
or the withdrawal of such objections.
(C) INDEPENDENT ACCOUNTANT.
In the event that the Vendor's Accountants and the Purchaser's
Accountants are unable to reach agreement within that 30 day
period as aforesaid, any matter in dispute shall be referred
to the decision of a single independent chartered accountant
or an independent firm of chartered accountants to be agreed
upon between them or, in default of such agreement, to be
selected (at the instance of either the Vendor or the
Purchaser) by the Chairman for the time being of the Ulster
Society of the Institute of Chartered Accountants in Ireland,
and any such chartered accountant or firm of chartered
accountants (whose costs shall be paid as he or they shall
direct) shall act as expert (and not as arbitrator) in
connection with the giving of such decision which shall, in
the absence of manifest error, be binding. The said decision
shall be reported to the Vendor's Accountants and the
Purchaser's Accountants within a period of 28 days from the
date on which the chartered accountants or firm of chartered
accountants have agreed to act. In giving such decision, the
accountant or firm shall state what adjustments (if any) are
to be made to the said draft in order that it shall comply
with paragraph 2.
(D) REPORT
If the Vendor accepts, or is deemed to accept, that the said
draft complies with paragraph 2 the Purchaser and the Vendor
shall sign a report to the effect that the Completion Accounts
comply with paragraph 2 and any Completion Accounts so
reported on, or (if subparagraph (C) shall apply) the final
draft of the Completion Accounts as adjusted by the
independent accountant or firm, shall be the Completion
Accounts for the purposes of this Agreement and, in the
absence of manifest error, shall be final and binding on the
parties.
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4. ADJUSTMENT OF CONSIDERATION
(A) INCREASE OR REDUCTION
When the Completion Accounts have become binding in accordance
with the provisions of this Schedule, the Provisional
Consideration shall forthwith:
(1) be increased by the amount (if any) by which the
Consideration as shown by the Completion Accounts is
greater than the Provisional Consideration; or (as
the case may be)
(2) be reduced by the amount (if any) by which the
Consideration as shown by the Completion Accounts is
less than the Provisional Consideration.
(B) PAYMENT
Any increase in the Provisional Consideration shall be paid by
the Purchaser to the Vendor in cash within 14 days after the
Completion Accounts have become binding as aforesaid or, as
the case may be, any reduction in the Provisional
Consideration shall be paid by the Vendor to the Purchaser in
cash within 14 days after the Completion Accounts have become
binding and any amount not paid when due under this paragraph
(B) shall carry interest at the rate of 3 per cent per annum
above Bank of Ireland base lending rate from time to time from
the due date until the date of actual payment (as well after
judgement as before).
5. INTER-ACTION WITH WARRANTIES
Preparation and finalisation of the Completion Accounts in accordance
with this Schedule shall be without prejudice to any claim which the
Purchaser may have against the Warrantors in respect of any breach of
this Agreement.
85
<PAGE>
SCHEDULE 11 - APPENDIX
CONSIDERATION AND PROVISIONAL CONSIDERATION BASIS
<TABLE>
<CAPTION>
Consideration Provisional
Consideration
L L
<S> <C> <C>
Goodwill
Base figure as agreed (see below) 4,420,000 4,420,000
Less: Profit after tax - 1.3.99 to 30.11.99 CA (250,000)
Add: Loss after tax - 1.3.99 to 30.11.99 CA N/A
--------- ---------
* 4,170,000
Fixed assets at net book value ("NBV") CA 890,000
Stock CA 200,000
Apportionment - prepayments CA --
Apportionment - accruals and deferred income CA (330,000)
--------- ---------
Sub-total * 4,930,000
Less: Retention Nil (250,000)
--------- ---------
Total * 4,680,000
--------- ---------
Goodwill Base Figure:-
Goodwill - basis 28.2.99 4,670,000 4,670,000
Less: Additional costs etc as agreed (250,000) (250,000)
--------- ---------
Base figure 4,420,000 4,420,000
--------- ---------
</TABLE>
Definitions
CA - the figures defined above as "CA" will be taken from the Completion
Accounts
Notes
1. The Consideration is increased by the prepayments and reduced by the
accruals
2. All creditors other than accruals are payable by the Vendor
3. The NBV of buildings in the Completion Accounts includes fixed plant in
buildings of L55,799 For illustration, the Completion Accounts figures are
expected to be:
<TABLE>
<CAPTION>
L
<S> <C>
Buildings excluding fixed plant in buildings 683,418
Fixed plant in buildings 55,799
-------
Buildings 739,217
-------
</TABLE>
86
<PAGE>
APPENDIX 1
MANAGEMENT ACCOUNTS
The Management Accounts attached at Number 1 of Annexure to this Agreement
87
<PAGE>
APPENDIX 2
SERVICE AGREEMENTS
The Service Agreements attached at Number 2 of Annexure of this Agreement
88
<PAGE>
APPENDIX 3
SUPPLIER/CUSTOMER LETTERS
SUPPLIER LETTER
[To be on ICS Unicomp Limited Letterhead]
Dear [ ]
You may be aware from recent press announcements that the ICS Unicomp business
was to be acquired by W & R Barnett Limited. The acquisition took place on 1st
December 1999 and has the full support of the senior management of ICS.
W & R Barnett Limited, which is one of Northern Ireland's oldest established
companies, operates in the grain and animal feed business and has an annual
turnover in excess of L85 million. The acquisition of ICS is seen as an
important long term strategic investment.
From an operational standpoint it is business as usual. The management team of
ICS will remain intact and look forward with confidence to the next stage in the
Company's development.
As a valued supplier of ICS we would assure you of our continued commitment to
working in partnership to deliver the best possible service to our customers.
Should you have any queries, please feel free to contact myself or any member of
the management team.
Yours sincerely
D Mawhinney
Managing Director - ICS Unicomp Limited
89
<PAGE>
CUSTOMER LETTER
[To be on ICS Unicomp Limited Letterhead]
Dear [ ]
You may be aware from recent press announcements that the ICS Unicomp business
was to be acquired by W & R Barnett Limited. The acquisition took place on 1st
December 1999 and has the full support of the senior management of ICS.
W & R Barnett Limited, which is one of Northern Ireland's oldest established
companies, operates in the grain and animal feed business and has an annual
turnover in excess of L85 million. The acquisition of ICS is seen as an
important long term strategic investment.
From an operational standpoint it is business as usual. The management team of
ICS will remain intact and look forward with confidence to the next stage in the
Company's development.
As a valued customer of ICS we would assure you of our continued high level of
service. Should you have any queries, please feel free to contact myself of any
member of the management team.
Yours sincerely
D Mawhinney
Managing Director - ICS Unicomp Limited
90
<PAGE>
APPENDIX 4
EMPLOYEE LETTER
[To be on ICS Unicomp Limited Letterhead]
Dear [ ]
On 1st December 1999 the whole of the business of ICS Unicomp Limited will be
transferred to a new company. The transfer will be in accordance with the
provisions of the Transfer of Undertaking (Protection of Employment)
Regulations.
The new company, which will also be called ICS Unicomp Limited in order to
preserve the goodwill and continuity of the business, will be your new employer
and all other terms and conditions of your employment will remain the same.
We would confirm that your period of continuous employment for statutory
employment right purposes began on [DATES SET OUT IN EMPLOYEE'S EXISTING
STATEMENT OF TERMS AND CONDITIONS OF EMPLOYMENT].
If you should have any questions regarding this letter or would like any
additional information regarding the transfer please contact [NAME].
Yours sincerely
ICS Unicomp Limited
91
<PAGE>
APPENDIX 5
LEASING AGREEMENTS
<TABLE>
<CAPTION>
Equipment Agreement No./ Finance Quarterly
Reference Company Payment L
<S> <C> <C> <C>
Canon NP6030 Photocopier 405195 Anglo Finance 503.50
BT Meridian Telephone System NAC 0082539 British Telecom 1348.85
Alpha Server (Medusa) 98LSA1063-01 DLL Technology 2881.74
Alpha Server (JKL) 95IRI047 DECLease 2300.00
Alpha Server (CPL, Cawoods, Heat) 16/113/23/500420 Capital Bank 4598.00
</TABLE>
92
<PAGE>
APPENDIX 6
NAME CHANGE RESOLUTIONS
THE COMPANIES ACT 1985
THE COMPANIES ACT 1989
--------------------------------
COMPANY LIMITED BY SHARES
--------------------------------
ICS UNICOMP LIMITED
COMPANY NO.
27993297
-------------------------------
WRITTEN RESOLUTION
pursuant to Section 113 of the Companies Act 1989
-------------------------------
RESOLVED as a Special Resolution
That with the consent of the Department of Trade and Industry the name of the
Company be altered to: -
"FARGELL Limited"
SIGNED in accordance with the provisions of Article 381A and Part II of Schedule
15A to the said Companies Act 1985 as incorporated by Section 113 of the
Companies Act 1989, by or on behalf of each relevant member namely: -
Dated the day of 1999
----------------------------
----------------------------
93
<PAGE>
THE COMPANIES ACT 1985
THE COMPANIES ACT 1989
-----------------------------------
COMPANY LIMITED BY SHARES
-----------------------------------
ICS COMPUTING GROUP LIMITED
COMPANY NO.
2744678
----------------------------------
WRITTEN RESOLUTIOIN
pursuant to Section 113 of the Companies Act 1989
----------------------------------
RESOLVED as a Special Resolution
That with the consent of the Department of Trade and Industry the name of the
Company be altered to: -
"Unicomp Computing Group Limited"
SIGNED in accordance with the provisions of Article 381A and Part II of Schedule
15A to the said Companies Act 1985 as incorporated by Section 113 of the
Companies Act 1989, by or on behalf of each relevant member namely: -
Dated the day of 1999
----------------------------
----------------------------
94
<PAGE>
APPENDIX 7
CONTRACTS
All contracts listed in Schedule 5 of this Agreement together with all contracts
relating to customers listed below.
<TABLE>
<S> <C> <C>
Acheson & Glover Agricare A.H. Feeds
AMK Supplies Limited Ardmore Commercial Arnotts
JE Ball (North) [ ].C. Bromac
J C Brow BW Hardware Campsie Fuels
Cawoods CEF Chanelle Veterinary
Christies CITB James Clow
Connors Fuels Consumable Products CPL
Crop Specialists Crossgar Poultry Dispo Products
Douglas Steam Sawmill Dungannon Meats Ewart Liddell
Ezy Koter Ferguson Fuels James A Finlay
Finley Fuels Fuel Services Gardner ICM
Germinal Holdings Glas-Seal RJ Hall
Hastings Hotel Group H.E.A.T Heyns
Home Fuels (FM) Howell House Bakery ICB Emulsions
IJK Timber Jordan Brothers Kane Fuels
Kelly Flowers John Kelly Kilkeel Concrete
Kilwaughter Chemicals LMI Foods L'Oreal
Lowdens B H McCleary McLaughlins
Maxol Oil Newry Building Supplies N.I.A.A.
Nicholl Fuels O'Reillys Ormeau Bakery
PCI Powerscreen Prima Brands
PRM Enterprises Provincial Butchers Redkin
Redland of N.I Limited SAFE Fuels Savoury Foods
Shaw & Jameson SOS Group Springvale
Star Fuels Stephens Catering Stevenson Brothers
Acheson & Glover Agricare Joseph Stewarts
TBF - Farrans John Thompson Transparent Films
UniComp Holdings Limited [ ]ol [ ]M
Walter Watson W.D. Irwin Westland
Wilson Feeds John Woods
AIS Ards Council Aurora
BRA CRO CSA
CSB DED DFP
DOE Dopra Forensic Science
MCB NECBA N.I.C.S.
NIP PATG Printrak
SSG
BFF Broomhill Home Furnishing CICS
Convex Desmonds Flair
Fruehauf Kingspan Leaf
</TABLE>
95
<PAGE>
<TABLE>
<S> <C> <C>
T McAuley Moygashel Namosa
Pritchitts Rings Ryobi
Smurfit UIE Uniplas
Ericsson Business Communications Eurodis (Services Contract) Glendermot
L Hughes & Co Mahon Furnishings Philip Basset
Spendlove C Jebb Tobermore Concrete Vodac (Ulster) Ltd
UniComp Holdings Aghadowey Creameries BDG Group
Carrick Golf Club Catering Equipment Donegal Catering
Pacemaker Press Stephens Catering Ulster American Folk Park
Video Hire Store Moonlighting Whelan & Best
Acheson & Glover Agricare Clancourt Group
Ewart PLC Fitzwilliam Place Management Lambert Smith & Hampton
NI Transport Holding Company Alexander Kinnaird [ ]lly McFarland
General Steel Services Saville Row Shirts Pilot Engineering
Ulster Corrugated Cases Livestock Marketing Commission Wineflair
DED Census Enterprise Ulster Glanbia Cheese
Hampden Group John Henderson Historic Scotland
Holland & Holland Irish Bonding Leckpatrick
Peter Mark NIR W & C Scott
Triangle Housing Association Trinity College Dublin A H Feeds Limited
A Generali Agri-Health Al Services
Alexander W (Monthly) Alexander W (Weekly) Aluset
AON McMillen ASM Horwath Assoc Cap Theatres
Baird A S Barbour Campbell Barbour Threads
Basil Glass BASS (ROI) 4 Wkly Bass Ireland
Beggs (Ballymena) Beggs (Belfast) Bell Fruits
Boxpak Browne A V Bulrush Peat
Capital One Cargo Forwarding Carpetright
City of Belfast Comic Enterprises Computer Share
Dalriada Doc on Call David Patton Limited Denmans Electrical
Drole Computing Ealing Housing Association Eason
ENG European Comp Co Fuel Services (NI)
GCAS Grant & Co Groupeflo
Haldane Shiells Hampden Group (ROI) Hampden Group (UK)
Heatons Hempsons, Solicitors Heyn & Sons
Acheson & Glover Agricare Heyn G
Historic Scotland HMV Ireland (ROI) Holland & Holland
Hurst Fuels IJK Timber London Mag Courts
IPS Limited Jackson Andrews John Hogg
John Hogg (NI) Limited John Kelly John Kyle
K H Manufacturing Kingsberry Limited KWB Kenmac
Lamont Holdings Laydex Lowdens Catherwood
Loweth M.R.C. Limited MacNaughton Blair
Macnaughton Blair Maxol McCann-Erickson
NIE N.I.I.B NACCO
Ormeau Bakery Orr Travel Portman Travel
PPP Columbia Price Waterhouse R Fert PO Ref 000000150
</TABLE>
96
<PAGE>
<TABLE>
<S> <C> <C>
R J Hall Rainey & Best Ralborough Security
Reids North Reids South Roaches
Roadside Motors Robert Smith Robinson Cleaning
Ross Wm & Co Limited R S & J Holdings S.C.A
Sangers Belfast/Omagh Shirtmakers Guild Shorts Missiles Sys
Smurfit TP (Dublin) Spanboard St. Johns Ambulance
SuperValu-Centra Svarovski TBF Thompson
Texaco Texas Homecare Tughan & Co
U Building & M S Ulster Bank Yuasa Batteries
</TABLE>
97
<PAGE>
APPENDIX 8
ICS PRODUCT LIST
Distributex Software
Unipims System
Max Manufacturing System
Hermes Payroll and Personnel System
Recital
Uniface
Di-Divers
IQ Objects
Bespoke Software developed by ICS for its client base
98
<PAGE>
APPENDIX 9
MOTOR VEHICLES OWNED/LEASED BY THE VENDOR
<TABLE>
<CAPTION>
Registration Number Car
<S> <C>
CCZ 6827 Volvo S70 2.4
IAZ 7087 Rover 620
IAZ 7773 Renault Laguna RTd 2.2
JAZ 1660 Renault Laguna RT 1.8
JAZ 5278 Peugeot 306 XR TD 1.9
JAZ 5780 Renault Laguna RTd 2.2 Est
JAZ 7135 Renault Laguna RTd 2.2
JAZ 7521 Renault Laguna RT 1.8
KAZ 1694 Renault Laguna RT 2.0
KAZ 1696 Renault Laguna RTd 2.2 Family
KAZ 5588 Ford Galaxy 1.9 TD Aspen
KAZ 6974 Peugeot 406 LX
NBZ 9288 Renault Laguna RT 2.0
OAZ 3937 Renault Laguna RTd 2.2 Family
OBZ 1613 Renault Laguna RT 2.0
OBZ 2973 Renault Laguna RT 2.0 Family
OBZ 2974 Renault Laguna RT 2.0 Family
OBZ 3737 Jeep Cherokee 4.0 Limited
OBZ 4207 Renault Laguna RT 2.0
RAZ 6972 BMW 520i SE
RIL 5577 BMW 520i
TAZ 6068 Renault Laguna RT 2.0
TAZ 6069 Renault Laguna RT 2.0
TAZ 8435 Vauxhall Vectra Artic II
UAZ 1612 Peugeot 406 LX dt
UAZ 6496 Rover 414Si 16v
UAZ 8129 Seat Alhambra
V816 FJB Renault Laguna 2.0 Alize Family
</TABLE>
99
<PAGE>
APPENDIX 10
TRANSFERRING EMPLOYEES
Those employees listed in Schedule 7 of this Agreement
100
<PAGE>
APPENDIX 11
PURCHASE PRICE APPORTIONMENT
See the Appendix to Schedule 11 of the Agreement. The Provisional Consideration
specified in the right hand column of that Appendix and the apportionment
between Asset classes will be subject to adjustment in accordance with the
Completion Accounts to be prepared in accordance with that Schedule.
101
<PAGE>
APPENDIX 12
ASSIGNMENT OF GOODWILL
The Assignment attached at Number 3 of Annexure to this Agreement
102
<PAGE>
APPENDIX 13
ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
The Assignment attached at Number 4 of Annexure to this Agreement
103
<PAGE>
APPENDIX 14
NOVATION AGREEMENT
The Novation Agreement attached at Number 5 of Annexure to this Agreement
104
<PAGE>
EXECUTED by S. A. Hafer /s/ S. H. Hafer 1ST December, 1999
for and on behalf of --------------- ------------------
ICS UNICOMP LIMITED
its lawful Attorney /s/ Maurice R. Butler 1ST December, 1999
--------------------- ------------------
Attorney
EXECUTED by S. A. Hafer /s/ S. H. Hafer 1ST DECEMBER, 1999
For and on behalf of ICS --------------- ------------------
COMPUTING GROUP Date
LIMITED its lawful Attorney /s/ Maurice R. Butler 1ST December, 1999
--------------------- ------------------
Attorney
EXECUTED by S. A. Hafer /s/ S. H. Hafer 1ST DECEMBER, 1999
for and on behalf of UNICOMP --------------- ------------------
HOLDINGS (UK) LIMITED Date
its lawful Attorney /s/ Maurice R. Butler 1ST December, 1999
--------------------- ------------------
Attorney
EXECUTED by S. A. Hafer /s/ S. H. Hafer 1ST DECEMBER, 1999
for and on behalf of --------------- ------------------
UNICOMP INC its
lawful Attorney /s/ Maurice R. Butler 1ST December, 1999
--------------------- ------------------
Attorney
EXECUTED AS A DEED
for and on behalf of
ZEC LIMITED: /s/ Adrian Thompson 1ST December, 1999
------------------- ------------------
/s/ John Irvine 1ST December, 1999
--------------- ------------------
Attorney
105
