DEED OF WARRANTIES
between
Russell V. Nathan
as Warrantor
Total Research Acquisitions Limited
and
Total Research
relating to the proposed offer to acquire the whole issued and to be issued
share capital of Romtec plc
<PAGE>
CONTENTS
1. Interpretation......................................................1
2. Warranties..........................................................3
3. Provisions relating to this Deed....................................4
4. Law and Jurisdiction................................................4
SCHEDULE 1: WARRANTIES.......................................................6
SCHEDULE 2: WARRANTOR'S PROTECTION..........................................12
i
<PAGE>
THIS DEED is dated the 13th day of April 2000 and made
---------
BETWEEN:
(1) RUSSELL V. NATHAN, (the " Warrantor"), of Braywood Farm, Ascot Road,
Hawthorn Hill, Maidenhead, Berkshire SL6 3SY;
(2) TOTAL RESEARCH ACQUISITIONS LIMITED, ("Acquisitions") a company
incorporated in England and Wales with company number 3953021 with
registered office at Watermans Park, 40-52 High Street, Brentford,
Middlesex, TW8 0BB; and
(3) TOTAL RESEARCH CORPORATION, ("Total Research"), a corporation
incorporated in accordance with the laws of the State of Delaware and
having its principal place of business at 5 Independence Way,
Princeton, New Jersey 08543, USA.
BACKGROUND:
----------
(A) Romtec plc (the "Company") is a public limited company incorporated in
England and Wales under the Companies Acts 1948 to 1980 under number
1612174.
(B) The Warrantor is the beneficial and registered owner of 4,475,000
ordinary shares comprising approximately 85 per cent. of the issued
share capital of the Company.
(C) In order to induce Acquisitions to make the Offer (defined below), the
Warrantor has agreed to enter into this Deed and to make the Warranties
(defined below) contained herein.
(D) Acquisitions is a wholly owned subsidiary of Total Research.
THE PARTIES AGREE THAT:
----------------------
1. INTERPRETATION
--------------
1.1 DEFINITIONS
In this Deed where the context admits:
"Accounts" means (1) the audited consolidated balance sheet of the
Company and the Subsidiary made up as at 31 January 1999 and the
audited consolidated profit and loss account of the Company and the
Subsidiary in respect of the financial year then ended, and (2) the
audited consolidated balance sheet of the Company and the Subsidiary
made up as at 31 January 2000 and the audited consolidated profit and
loss account of the Company and the Subsidiary for the financial year
then ended, (including, in each case, the notes thereto and the
directors' report and auditors' report).
"Completion Date" means the date upon which the Offer becomes or is
declared unconditional in all respects.
"Disclosure Letter" means a letter of even date from the Warrantor (or
his solicitors) and addressed to Acquisitions.
"Encumbrance" includes any interest or equity of any person (including
any right to acquire, option or right of pre-emption); any mortgage,
charge, pledge, lien, assignment, security
<PAGE>
interest, title retention or other security agreement or arrangement;
and any rental, hire purchase, credit sale or other agreement for
payment on deferred terms (other than operating leases on equipment
used by the Company in the ordinary course of business).
"Intellectual Property" means patents, trade marks, service marks,
applications for any of the foregoing; trade or business names;
copyright (including rights in computer software); know-how; lists of
suppliers and customers and other confidential and proprietary
knowledge and information; rights protecting goodwill and reputation;
database rights and all rights and forms of protection of a similar
nature to any of the foregoing or having equivalent effect anywhere in
the world and all rights under licences and consents in respect of any
of the rights and forms of protection mentioned in this definition.
"Offer" means the offer proposed to be made by Acquisitions to acquire
the entire issued and to be issued share capital of the Company on the
terms and subject to the conditions set out in the Offer Document.
"Offer Document" means the offer document in the form or substantially
in the form agreed by the parties to this Deed and initialled for
identification purposes containing, inter alia, the terms and
conditions of the Offer.
"Shares" means the ordinary shares of 1pence each in the capital of the
Company.
"Subsidiary" means Romtec-GfK Limited, a private limited company
incorporated in England and Wales under the Companies Act 1985 with
number 3406509.
"Taxation" means all taxation, imposts and duties in the nature of tax
and any payment which the Company may be required to make by reason of
any law relating to the same and all penalties, charges, costs and/or
interest relating to the same or any failure to comply with any law
relating to the same.
"Warranties" means the warranties and undertakings set out in schedule
1.
1.2 CONSTRUCTION OF CERTAIN REFERENCES
In this Deed, where the context admits:
(A) references to persons being "connected" shall be construed
within the meaning of section 286 of the Taxation of
Chargeable Gains Act 1992;
(B) where any statement is to the effect that the Warrantor is not
aware of any matter or circumstance, or is a statement
qualified by the expression "so far as the Warrantor is aware"
or "to the best of the Warrantor's knowledge and belief" or
any similar expression, that statement shall be deemed to
include an additional statement that it has been made after
due and careful enquiry of the directors of the Company;
(C) references to clauses and schedules are references to clauses
of and schedules to this Deed, references to paragraphs are,
unless otherwise stated, references to paragraphs of the
schedule in which the reference appears and references to this
Deed include the schedules;
(D) "person" includes any individual, partnership, body corporate,
corporation sole or aggregate, state or agency of a state, and
any unincorporated association or organisation, in each case
whether or not having separate legal personality; and
(E) references in schedule 1 to the "Company" shall include the
"Subsidiary" unless the context otherwise requires.
1.3 HEADINGS
The headings and sub-headings are for convenience only and shall not
affect construction or interpretation.
1.4 SCHEDULES
Each of the schedules shall have effect as if set out herein.
2. WARRANTIES
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2.1 GENERAL
In consideration of Acquisitions agreeing to make the Offer and Total
Research entering into a Second Amended and restated Credit Agreement
with Summit Bank, the Warrantor warrants and undertakes to and for the
benefit of Acquisitions and Total Research in the terms of the
Warranties and acknowledges and accepts that Acquisitions will be
making and implementing the Offer in reliance upon each of the
Warranties.
2.2 SUBJECT TO DISCLOSURE
The Warranties are given subject to matters fairly disclosed in this
Deed or in the Disclosure Letter with sufficient details to identify
the nature and scope of the matters disclosed.
2.3 WARRANTIES TO BE INDEPENDENT
Each of the Warranties shall be separate and independent and, save as
expressly provided, shall not be limited by reference to any other
Warranty or anything in this Deed.
2.4 DAMAGES
Without restricting the rights of Acquisitions and Total Research or
the ability of Acquisitions and/or Total Research to claim damages on
any other basis, to the extent not limited in this Deed, the Warrantor
hereby indemnifies Acquisitions and Total Research against, and agrees
to hold Acquisitions and Total Research harmless from, any and all
damage, loss, liability and expense incurred or suffered by
Acquisitions and/or Total Research arising out of any breach of
warranty or undertaking made by the Warrantor to Acquisitions and/or
Total Research made pursuant to paragraph 5 of schedule 1 ("Tax")
provided that (for the purposes of such indemnity only) Acquisitions or
Total Research is able to demonstrate that the Company has itself
suffered loss, damage, liability and expense greater (or no less) than
that claimed by Acquisitions or Total Research under the foregoing
indemnity.
2.5 WAIVER OF CLAIMS
The Warrantor undertakes to and for the benefit of Acquisitions and
Total Research that he will not make or pursue any claim or action
howsoever arising against the Company or (save
<PAGE>
in the event of their fraud or dishonesty) any of the current
employees of the Company in respect of any loss or liability the
Warrantor may incur pursuant to this Deed (or any other document
referred to herein) or otherwise in connection with the Offer.
2.6 LIMITATION OF LIABILITY
The liability of the Warrantor under or in respect of the Warranties
shall be limited as set out in schedule 2.
2.7 WARRANTOR'S CONTINUING OBLIGATION
The Warrantor undertakes with Acquisitions and Total Research that
until the Completion Date he will use his reasonable endeavours to
procure that the business of the Company is carried on in the usual and
normal course and take all reasonable steps to preserve the goodwill of
the business and encourage customers and suppliers to continue to deal
with the same and shall do nothing which will or would be likely to
injure such goodwill.
3. PROVISIONS RELATING TO THIS DEED
--------------------------------
3.1 SUCCESSORS
This Deed shall be binding upon and endure for the benefit of the
successors of the parties. The benefit of this Deed is not assignable
by Acquisitions or Total Research.
3.2 WHOLE AGREEMENT AND VARIATIONS
(A) This Deed, together with any documents referred to in it,
constitutes the whole agreement between the parties relating
to its subject matter and supersedes and extinguishes any
prior drafts, agreements, and undertakings, whether in writing
or oral, relating to such subject matter, except to the extent
that the same are repeated in this Deed.
(B) No variation of this Deed shall be effective unless made in
writing and signed by both of the parties.
3.3 RIGHTS ETC CUMULATIVE AND OTHER MATTERS
(A) The rights, powers, privileges and remedies provided in this
Deed are cumulative and are not exclusive of any rights,
powers, privileges or remedies provided by law or otherwise.
(B) No failure to exercise nor any delay in exercising any right,
power, privilege or remedy under this Deed shall in any way
impair or affect the exercise thereof or operate as a waiver
thereof in whole or in part.
3.4 COUNTERPARTS
This Deed may be executed in any number of counterparts, which shall
together constitute one Agreement. Each party may enter into this Deed
by signing either such counterpart.
3.5 COSTS
Each party shall bear its own costs arising out of or in connection
with the preparation, negotiation and execution of this Deed.
4. LAW AND JURISDICTION
--------------------
4.1 ENGLISH LAW
This Deed shall be governed by, and construed in accordance with,
English law.
4.2 JURISDICTION
In relation to any legal action or proceedings to enforce this Deed or
arising out of or in connection with this Deed ("Proceedings") both of
the parties irrevocably submits to the exclusive jurisdiction of the
English courts and waives any objection to Proceedings in such courts
on the grounds of venue or on the grounds that the Proceedings have
been brought in an inconvenient forum.
AS WITNESS the parties have executed this instrument as a deed on the date first
before written.
<PAGE>
SCHEDULE 1: WARRANTIES
1. THE COMPANY AND THE WARRANTOR
-----------------------------
1.1 LIABILITIES OWING TO OR BY THE WARRANTOR
There is not outstanding any indebtedness or other liability (actual or
contingent) owing by the Company to the Warrantor or to any person
connected with him other than in respect of emoluments and in respect
of the reimbursement of expenses, nor is there any indebtedness owing
to the Company by any such person.
1.2 COMPETING INTERESTS
Neither the Warrantor nor any person connected with him has any
interest, direct or indirect, in any business other than that now
carried on by the Company which is or in the Warrantor's reasonable
opinion is likely to be or become competitive with the business or any
proposed business of the Company.
2. THE COMPANY AND ITS INVESTMENTS
-------------------------------
2.1 SUBSIDIARIES AND OTHER INVESTMENTS
The Company:-
(A) is not the holder or beneficial owner of, and has not agreed
to acquire, any share or other capital of any other company or
corporation (whether incorporated in the United Kingdom or
elsewhere) other than the Subsidiary;
(B) has no branch, agency or place of business outside England and
no permanent establishment (as that expression is defined in
the relevant double taxation relief orders current at the date
of this Deed) outside the United Kingdom.
3. THE COMPANY AND THE LAW
-----------------------
3.1 COMPLIANCE WITH LAWS
The Company has conducted its business in all material respects in
accordance with all applicable laws and regulations of the United
Kingdom and each other jurisdiction in which it conducts any business
and there is no order, decree or judgement of any court or any
governmental or supranational authority or other competent authority or
agency of the United Kingdom or any foreign country outstanding against
the Company or any person for whose acts the Company is vicariously
liable which may have a material adverse effect upon the assets or
business of the Company.
3.2 LICENCES ETC
All licences, consents, permits, approvals and authorisations (public
and private) necessary for utilising any of the assets of (other than
Intellectual Property used by) the Company, or for carrying on
effectively any aspect of the Company's business in the places and in
the manner in which such business is now carried on have been obtained
by the Company and all such licences, consents, permits approvals and
authorisations are in full force and effect.
3.3 LITIGATION
Neither the Company nor any of its officers or agents nor any of its
employees is engaged in any litigation or arbitration, administrative
or criminal proceedings (save for debt collection in the ordinary
course of business), or any investigation or enquiry by any authority
of the United Kingdom or any other jurisdiction which adversely affects
or is likely to have an adverse effect on the Company's business and/or
the ability of the Company or any purchaser to carry on the Company's
business in the same manner and to the same extent as previously
carried on, nor so far as the Warrantor is aware are any such
proceedings, investigations or enquiries pending or anticipated.
3.4 OTHER
The Company has complied in all respects with the requirements of the
rules of the Alternative Investment Market of the London Stock Exchange
Limited.
4. THE COMPANY'S ACCOUNTS AND RECORDS
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4.1 BOOKS AND RECORDS
All accounts, books, ledgers, financial and other records of whatsoever
kind of the Company have been properly maintained in accordance with
all applicable legal requirements.
4.2 ACCOUNTS
The Accounts:
(A) were prepared in accordance with the requirements of all
relevant statutes and accounting practices generally accepted
in the United Kingdom at the time they were prepared and/or
audited (including all applicable Statements of Standard
Accounting Practice and Financial Reporting Standards);
(B) show a true and fair view of the assets and liabilities of the
Company as at, and the profits of the Company for the
accounting reference period ended on, the date to which they
were made up; and
(C) apply bases and policies of accounting which have been
consistently applied in the audited financial statements of
the Company for the three accounting reference periods ending
on 31 January 2000.
4.3 PROFITS
The profits of the Company for the two years ended on the 31 January
2000 as shown by the Accounts have not (save as properly disclosed in
the Accounts) been affected by any extraordinary or exceptional items
within the meaning of FRS 3 or transactions entered into otherwise than
on normal commercial terms or by any other factors known to the
Warrantor (but not Total Research) rendering such profits for both or
either of those periods exceptionally high or low.
4.4 PROVISION FOR LIABILITIES
Proper provision or reserve has been made in the Accounts for all
actual liabilities of the Company outstanding at the date(s) to which
such accounts are made up and proper provision (or note) in accordance
with and to the extent required by generally accepted accounting
principles in the United Kingdom at the time they were audited has been
made therein for all other liabilities of the Company then outstanding
whether contingent, quantified, disputed or not.
5. TAX
---
(A) The Accounts make proper provision or reserve for all Taxation
liable to be assessed on the Company or for which it is
accountable in respect of income, profits or gains earned,
accrued or received on or before such date and for all
deferred Taxation calculated in accordance with generally
accepted accounting principles.
(B) Since 31 January 2000 the Company has not incurred any
liability for Taxation arising as a result of any transaction
entered into by the Company outside the ordinary course of
business.
6. THE COMPANY'S BUSINESS
----------------------
6.1 BUSINESS SINCE 31 JANUARY 2000
Since 31 January 2000:
(A) the Company has carried on its business in the ordinary and
usual course so as to maintain it as a going concern and
without any interruption or alteration in the nature, scope or
manner of its business;
(B) there has been no material deterioration in the financial
position, turnover, and so far as the Warrantor is aware, in
the prospects of the Company when compared to the same period
in 1999;
(C) there has been no significant event or occurrence known to the
Warrantor and not known to Total Research which has had or may
following the Completion Date have a material adverse effect
on the Company's business or, so far as the Warrantor is
aware, on its value, profitability or prospects; and
(D) no share or loan capital has been issued or agreed to be
issued by the Company.
6.2 COMMISSION
No one is entitled to receive from the Company any finder's fee,
brokerage, or other commission in connection with the Offer.
6.3 CONSEQUENCE OF THE OFFER
So far as the Warrantor is aware, the event of the Offer becoming or
being declared unconditional will not:
(A) cause the Company to lose the benefit of any licence, consent,
permit, approval or authorisation (public or private) or any
right or privilege it presently enjoys or relieve any person
of any obligation to the Company or enable any person to
determine any
<PAGE>
such obligation or any contractual right or benefit now
enjoyed by the Company or to exercise any right whether
under an agreement with the Company or otherwise;
(B) result in any present or future indebtedness of the Company
becoming due or capable of being declared due and payable
prior to its stated maturity;
(C) give rise to or cause to become exercisable any right of
pre-emption;
and, to the best of the knowledge and belief of the Warrantor, the
Company's relationships with clients, customers, suppliers and
employees will not be adversely affected thereby and the Warrantor is
not aware that any person who now has business dealings with the
Company would or might cease to do so from and after the acquisition of
the Shares by a person previously unconnected to the Company.
6.4 DISTRIBUTIONS AND PAYMENTS
Since 31 January 2000 no dividend or other distribution has been or
will prior to the Completion Date be made, paid or declared on the
Shares save for the interim dividend of 2p (net) per share to be
announced in the preliminary announcement of the Company's results for
the year ended 31 January 2000.
7. THE COMPANY'S ASSETS
--------------------
7.1 ASSETS
Except for current assets disposed of by the Company in the ordinary
course of its business and save for retention of title claims, hire
purchase, conditional sale or leased assets, the Company is the owner
legally and beneficially of and has good marketable title to all assets
included in the Accounts and (save as aforesaid) no Encumbrance is
outstanding over any part of the Company's assets.
7.2 DEBTS
Save to the extent of the provision or reserve therefor contained or
reflected in the Accounts, any debts owed to the Company and recorded
in the Company's books and records as at 31 January 2000 are good and
collectable in the ordinary course of business.
7.3 FIXED ASSETS
All fixed assets of the Company including, without limitation,
vehicles, computer equipment and other equipment used in, or in
connection with, the business of the Company:
(A) are in reasonable repair and condition (taking into account
their age and level of use), are in satisfactory working order
and have been regularly and properly serviced and maintained
and none is in need of renewal or replacement; and
(B) are properly insured for their full replacement value against
such risks as are normally insured against by Companies
carrying on a similar business.
7.4 BANK BALANCE
On the Completion Date the balance then standing to the credit of the
Company's bank account at Barclays Bank plc (taking into account all
cheques or other instruments drawn
<PAGE>
against such accounts and then outstanding and unpresented and after
making provision for the payment of the interim dividend and bonuses
to executives in respect of the financial year ended 31 January 2000,
to the extent not then paid) will be not less than (pound)625,000 and
since 31 January 2000 and until the Completion Date no payments from
such accounts have been or will be paid otherwise than in the ordinary
and usual course of business and all creditors in such period will be
paid in accordance with the Company's practice prior to the date of
this Deed.
7.5 INTELLECTUAL PROPERTY RIGHTS
(A) No person has been authorised to make any use whatsoever of
any Intellectual Property owned by the Company in
circumstances where that authorisation cannot be revoked
without compensation on reasonable written notice.
(B) So far as the Warrantor is aware, the Company does not and has
not infringed any Intellectual Property or any right of any
other person relating to Intellectual Property.
8. PREMISES
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8.1 TITLE TO PREMISES
(A) Except for the lease of Unit 4, off Norden Road, Maidenhead,
Berkshire (the "Premises") made between Seiko UK Limited and
Romtec plc dated 14 September 1995 the Company has no other
interest or liabilities relating to land.
(B) The Premises are held free from any Encumbrance.
8.2 MATTERS AFFECTING PREMISES
All necessary permissions and approvals for the extension and
alteration of the Premises by the Company have been obtained and
complied with, and none of those permissions, consents and approvals
has been given on a temporary or personal basis nor does it require the
removal at any time of the works so authorised.
9. THE COMPANY'S CONTRACTS
-----------------------
9.1 RELATED PARTY CONTRACTS
Save for his service agreement, neither the Warrantor nor anyone
connected with him has in the last two years been a party to any
contract or contractual arrangement with the Company of any
description.
9.2 RESTRICTIONS
No contract, agreement, transaction, obligation, commitment,
understanding, arrangement or liability entered into by the Company and
now outstanding or unperformed involves any express restrictions on the
Company's freedom to carry on the whole or any part of its business in
any part of the world in such manner as it thinks fit.
9.3 DEFAULTS
So far as the Warrantor is aware the Company has not received any
notice or claim that it is in material default of or under any contract
to which it is a party or seeking to repudiate, cancel, rescind or
terminate any such contract and so far as the Warrantor is aware no
other party to any such contract is in material default of or under it
which, in any such case, would be material in the context of the
financial or trading position of the Company nor, so far as the
Warrantor is aware, are there any circumstances likely to give rise to
any such event.
9.4 OPTIONS AND GUARANTEES
The Company is not a party to any option or pre-emption right, and it
does not have any obligation to pay, provide funds or take action in
the event of default in the payment of any indebtedness of any other
person or in the performance of any obligation of any other person.
9.5 ROMTEC - GFK
Save for the Shareholders Agreement dated 20 November 1997 between (1)
the Company, (2) GFK Marketing Services Limited and (3) Romtec-GfK
Limited, the Company has not entered into with GfK Marketing Services
Limited, Romtec-GfK Limited or any of their respective affiliates any
material contract, agreement, arrangement, obligation, commitment,
understanding or liability relating to or in connection with Romtec -
GfK Limited, which remains subsisting or unperformed.
10. ACCURACY OF MATTERS DISCLOSED
-----------------------------
10.1 The bundle of documents in agreed form and initialled by or on behalf
of the parties for identification (the "Bundle") contains true and
complete copies of the documents referred to in the index to the Bundle
as items 1-6 in the form they were provided to Total Research, and such
items 1-6 are true and accurate in all material respects.
10.2 All factual information concerning the insurance and employees of the
Company provided to Total Research and set out at items 7 and 8 of the
Bundle is complete and correct as at the date of this Deed.
10.3 All expressions of opinion, forecasts or expectation disclosed or
contained in the Fiscal Year 2001 Operating Plan as set out at item 9
of the Bundle are, in the opinion of the Warantor, fairly based and
made on reasonable assumptions which are honestly held by the Warrantor
11. OFFER DOCUMENTS
---------------
To the best of the knowledge, information and belief of the Warrantor,
the information relating to the Company and the Subsidiary and the
directors of the Company set out in the Offer Document and the Press
Announcement relating to the Offer is true and accurate in all respects
and there are no facts or circumstances the omission of which would
render any such information misleading.
<PAGE>
SCHEDULE 2: WARRANTOR'S PROTECTION
1. DEFINITIONS
-----------
In this schedule, "Relevant Claim" means any claim under this Deed for
breach of the Warranties, and "Total Research's Group" means Total
Research and its subsidiaries from time to time.
2. NO LIABILITY UNLESS OFFER UNCONDITIONAL IN ALL RESPECTS
-------------------------------------------------------
The Warrantor shall not be under any liability under or in this Deed
unless and until the Offer becomes unconditional in all respects and in
the event that the Offer shall lapse this Deed shall cease to have any
force or effect.
3. TOTAL RESEARCH'S UNDERTAKING
----------------------------
Total Research and Acquisitions acknowledge that in entering into this
Deed they have relied only on the Warranties and that (in the absence
of fraud or dishonesty) they will not have any right or remedy arising
out of any representation, warranty, agreement or statement not set out
in this Deed.
4. EXCLUSION OF RELEVANT CLAIMS
----------------------------
The Warrantor shall have no liability in respect of any Relevant Claim
to the extent arising from any matter, act, omission or circumstance:
4.1 fairly disclosed in the Disclosure Letter or in the documents annexed
to it in accordance with Clause 2.2 of this Deed; or
4.2 which would not have occurred but for any act, omission or transaction
after the Completion Date by or with the consent of Total Research
and/or Acquisitions which is outside the ordinary course of business
which Total Research and/or Acquisitions knows or ought reasonably to
know would give rise to a Relevant Claim.
5. TOTAL RESEARCH'S AND ACQUISITIONS' RIGHTS AND MITIGATION OF LIABILITY
---------------------------------------------------------------------
5.1 Subject to Total Research's and Acquisitions' rights to claim damages
under the indemnity pursuant to Clause 2.4 of this Deed, Total
Research's and Acquisitions' rights and remedies in respect of any
Relevant Claim shall be limited to damages for breach of contract.
Neither Total Research nor Acquisitions shall be entitled to recover
damages in tort or misrepresentation.
5.2 Nothing in this Deed shall operate to reduce Total Research's or
Acquisitions common law duty to mitigate any loss giving rise to any
Relevant Claim and Total Research and Acquisitions shall be under a
duty so to mitigate.
6. FINANCIAL LIMITS
----------------
6.1 AGGREGATE LIMIT
The aggregate liability of the Warrantor under this Deed shall (in the
absence of fraud or dishonesty) be limited to (pound)1.8 million and
shall be limited to 85% of such Relevant Claim.
6.2 THRESHOLDS
The Warrantor shall have no liability in respect of a Relevant Claim
unless:
(A) the liability agreed or determined in respect of the Relevant
Claim (excluding related interest and costs) exceeds
(pound)1,000; and
(B) the aggregate liability agreed or determined (excluding
related interest and costs) in respect of all Relevant Claims
qualifying under (A) exceeds (pound)150,000 in which case the
Warrantor shall be liable for the whole of the liability and
not just the excess.
7. TIME LIMITS
-----------
The Warrantor shall (subject to paragraph 10 below) have no liability
in respect of any Relevant Claim unless Total Research or Acquisitions
shall have given notice in writing to the Warrantor of such claim
specifying (in reasonable detail) the matter which gives rise to the
Relevant Claim, the nature of the Relevant Claim and the amount claimed
in respect thereof not later than:
(A) in the case of a Relevant Claim under or in connection with
any of the Warranties contained in schedule 1 (other than as
specified in (B) below) not later than 1 September 2001; and
(B) in the case of a Relevant Claim relating to Taxation in
respect of any financial year in relation to which the
Company's tax computations have not been agreed with the
relevant tax authorities, the date which is 7 years after the
date of this Deed.
8. RELEVANCE OF LIMITATIONS IN CIRCUMSTANCES OF FRAUD ETC
------------------------------------------------------
The provisions of paragraphs 6 and 7 shall not apply in respect of a
Relevant Claim if it is (or the delay in the discovery of which is) the
consequence of the fraud or dishonesty of the Warrantor.
9. ISSUE OF LEGAL PROCEEDINGS
--------------------------
A Relevant Claim in respect of which notice is given in accordance with
paragraph 7 shall, if it has not previously been satisfied, settled or
withdrawn, be deemed to have been withdrawn and be barred and
unenforceable unless legal proceedings have been issued and served on
the Warrantor in respect of such Relevant Claim within 12 months after
the date of such notice or, where the Relevant Claim is based on a
contingent liability, within 12 months after such liability ceases to
be contingent.
10. CONTINGENT LIABILITIES
----------------------
The Warrantor shall have no liability in respect of any Relevant Claim
which is based upon a liability which is contingent only unless and
until such contingent liability becomes an actual liability and is due
and payable, but the time limits in paragraph 7 shall in that event be
extended accordingly to six months after the date on which such
liability becomes actual.
11. THE ACCOUNTS
------------
The Warrantor shall have no liability in respect of any Relevant Claim
to the extent that:
(A) the Accounts make provision or reserve for the matter giving
rise to the Relevant Claim; or
(B) any amount is received by the Company prior to settlement or
determination of a Relevant Claim in relation to which an
amount relating to the subject matter of such Relevant Claim
is shown as written off as irrecoverable in the Accounts; or
(C) a provision or reserve in the Accounts in respect of Taxation
or any other liability which is the subject matter of the
Relevant Claim proves to be excessive or unutilised.
12. GENERAL EXCLUSIONS
------------------
The Warrantor shall have no liability in respect of any Relevant Claim
to the extent arising from:
(A) the passing of, or change in, after the date of this Deed, any
law, regulation or rule of any government, governmental
department, agency or regulatory body (including any stock
exchange) or any judgment delivered after the date of this
Deed or any increase in the rates of Taxation or any
imposition of Taxation not in effect at the date of this Deed
or any withdrawal after the date of this Deed of any practice
or extra-statutory concession previously published by the
Inland Revenue or other taxing authority (whether or not
purporting to be retrospective in whole or in part);
(B) a change after the date of this Deed in the methods which have
been used by the Company in valuing stock in trade and work in
progress or any other change in accounting policy or practice
or any change to the length of any accounting period of the
Company;
(C) the failure or omission by the Company or Total Research or
Acquisitions or any member of Total Research's Group to make
any claim, election, surrender or disclaimer or give any
notice or consent or do any other thing under the provisions
of any enactment or regulation relating to Taxation after the
Completion Date, and the making, giving or doing of which was
taken into account in computing the Taxation in the Accounts;
(D) any claim, election, surrender or disclaimer made or notice or
consent given or any other thing done after the date of this
Deed by the Company or Total Research or Acquisitions or any
other member of Total Research's Group or their agents under
the provisions of any enactment or regulation relating to
Taxation; or
(E) the winding-up of the Company or any winding-up or cessation
after the Completion Date of any trade or business carried on
by the Company.
13. INSURANCE
---------
The Warrantor shall have no liability in respect of any Relevant Claim
to the extent that the loss in respect of which the Relevant Claim is
made is insured under a policy of insurance in favour of the Company or
Total Research or Acquisitions or any member of Total Research's Group
and to the extent there is actual recovery thereunder less (1) the
costs of recovery and (2) the amount of any increase in premium upon
renewal of such policy resulting from the recovery under such policy.
14. CLAIMS AGAINST THIRD PARTIES
----------------------------
If the Warrantor has paid to Total Research or Acquisitions any amount
in respect of a Relevant Claim and the Company or Total Research or
Acquisitions or any member of Total Research's Group subsequently
receives or recovers from a third party (including an insurer) a sum
which is referable to such Relevant Claim, Total Research or
Acquisitions as appropriate shall forthwith repay to the Warrantor the
amount so received or recovered up to the amount which has been paid by
the Warrantor in respect of such Relevant Claim less the costs of
recovery.
15. WAIVER OF SET OFF
-----------------
Total Research and Acquisitions waive any rights of set off,
withholding, deduction or abatement against any element of the
consideration payable or to become payable, whether in cash or under
loan notes to the Warrantor pursuant to the Offer.
16. REDUCTION IN PURCHASE PRICE
---------------------------
Any amount recovered by Total Research and/or Acquisitions from the
Warrantor pursuant to a Relevant Claim shall be treated as a reduction
in the purchase price received by the Warrantor under the Offer.
17. CONDUCT OF CLAIMS
-----------------
17.1 If the Company Total Research, Acquisitions, or any member of Total
Research's Group becomes aware of a matter which could reasonably be
expected to give rise to a Relevant Claim, Total Research or
Acquisitions as appropriate shall give notice in writing of that fact
as soon as reasonably practicable to the Warrantor.
17.2 If the Company or Total Research or Acquisitions or any member of Total
Research's Group receives notice of a claim by a third party ("Third
Party Claim") against the Company or Total Research or Acquisitions or
any member of Total Research's Group which might constitute or give
rise to a liability pursuant to this Deed, the Warrantor and Total
Research shall consult with each other regarding the conduct of the
Third Party Claim and Total Research shall and shall procure that the
relevant member of Total Research's Group shall take such lawful and
reasonable action as the Warrantor shall reasonably require to avoid,
dispute, resist, appeal, compromise, settle, contest or raise a
counter-claim in relation to the Third Party Claim.
17.3 The Warrantor shall indemnify Total Research and Acquisitions against
and in respect of all reasonable costs, charges, expenses, liabilities
and damages for which Total Research or Acquisitions or the relevant
member of Total Research's Group becomes liable in respect of any
action which is required to be taken by Total Research, or
Acquisitions, or any member of Total Research's Group under paragraph
17.2.
17.4 Total Research and Acquisitions shall keep the Warrantor informed of
the progress and the defence of any Third Party Claim and shall consult
with the Warrantor as appropriate.
17.5 Where Total Research and/or Acquisitions has made a Relevant Claim,
Total Research and/or Acquisitions as appropriate shall use all
reasonable endeavours (subject to the Warrantor indemnifying Total
Research and/or Acquisitions for the reasonable costs and expenses
incurred by it in so doing) to recover any amounts due from any third
party (including an insurer).
17.5 In relation to any Relevant Claim, and without prejudice to the
validity of the Relevant Claim, Total Research and/or Acquisitions
shall allow and shall procure that any relevant member of Total
Research's Group shall allow the Warrantor and his professional
advisers to investigate the matter or circumstance alleged to give rise
to the Claim and Total Research and/or Acquisitions shall give and
shall procure that any relevant member of Total Research's Group shall
give such assistance as the Warrantor or its professional advisers may
reasonably request, including upon reasonable notice and in normal
business hours access to and copies of any documents or other
information in possession of Total Research and/or Acquisitions or any
relevant member of Total Research's Group (subject to giving such
confidentiality undertakings as Total Research may reasonably require).
18. NO DUPLICATION OF RECOVERY
--------------------------
Neither Total Research nor Acquisitions shall be entitled under this
Deed to recover damages or otherwise obtain reimbursement or
restitution more than once in respect of the same loss.
<PAGE>
Executed as a DEED by Russell V. Nathan) /s/Russell V. Nathan
in the presence of: /s/Barry Maytum
Name of Witness: Barry Maytum
Address: 34 Bridge Street
Reading
Occupation: Solicitor
Executed as a DEED by )/s/Albert Angrisani
duly authorised for and on )
behalf of Total Research Acquisitions Limited )
in the presence of: /s/Eric Zissman
Name of Witness: Eric Zissman
Address: 5 Independence Way
Princeton, NJ 08540
Occupation: Corporate Development Officer
Executed as a DEED by )/s/Albert Angrisani
duly authorised for and on )
behalf of Total Research Corporation )
in the presence of: /s/Eric Zissman
Name of Witness: Eric Zissman
Address: 5 Independence Way
Princeton, NJ 08540
Occupation: Corporate Development Officer
<PAGE>
INDEX OF DOCUMENTS
------------------
The following documents are the documents contained in the bundle described in
Warranty 10 of the Deed of Warranties.
1. Romtec Memorandum of Association and New Articles of Association
2. Service agreements of directors
3. Romtec Executive Share Option Scheme
4. Romtec Staff handbook
5. Shareholders Agreement Articles of Association of Romtec-Gfk Limited
6. Board minutes of Romtec
7. Details of insurance cover and insurance policy renewal details
8. Listing of employees and their respective compensation schemes (Excel
spreadsheet)
9. Fiscal Year 2001 Operating Plan Excel sheets showing revenue and profit
expectations by business group
