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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
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FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) May 28, 1996
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MARK SOLUTIONS, INC.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 0-17118 112864481
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(State or Other Jurisdiction Commission (IRS Employer
Of Incorporation) File Number) Identification Number)
Parkway Technical Center, 1515 Broad Street, Bloomfield, New Jersey 07003
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(Address of Principal Executive Offices and Zip Code)
Registrant's telephone number, including area code (201) 893-0500
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(Former Name and Address, if Changed Since Last Report)
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INFORMATION TO BE INCLUDED IN THE REPORT
This amendment No. 1 to Current Report on Form 8-K amends Item 7 of
the Form 8-K of Mark Solutions, Inc. ("Mark") dated May 28, 1996 to include the
following Exhibit which was filed in paper format pursuant to Rule 201 of
Regulation S-T:
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
2. Stock Purchase Agreement between Mark and Christopher Cummins and
Moira Addington dated April 24, 1996.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be report to be signed on its behalf
by the undersigned hereunto duly authorized.
MARK SOLUTIONS, INC.
June 18, 1996 By: /s/ Carl Coppola
President and Chief Executive Officer
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EXHIBIT 2
CONFORMING COPY
THIS SHARE PURCHASE AGREEMENT is made the 24th day of April, 1996
BETWEEN:
1. MARK SOLUTIONS INC. a corporation incorporated in Delaware whose
business address is at Parkway Technical Center, 1515 Broad Street,
Bloomfield, New Jersey 07003 ("the Purchaser");
2. CHRISTOPHER PETER ROWSON CUMMINS of Eastcote House, 16 The Mount,
Fetcham, Surrey, England, KT22 9EE ("Mr Cummins"); and
3. MOIRA LOUISE ADDINGTON also of Eastcote House aforesaid ("Ms
Addington")
RECITALS:
A. Mr Cummins and Ms Addington (together "the Sellers") are in partnership
under the style of "Medical Imaging Products and Services"
B. The Sellers (as Medical Imaging Products and Services) hold 450
Ordinary Shares of 1.00 pound each ("the Shares") in the capital of
Simis Medical Imaging Limited ("SMI") a company incorporated in England
and Wales under Company Number 02578656 and having its registered
office at Abbots Fee, Greenhill, Sherborne, Dorset DT9 4ET
C. The Purchaser and the Sellers have agreed that the Purchaser shall
purchase the Shares from the Sellers on the following terms and
conditions
NOW IT IS HEREBY AGREED as follows:
1. SALE AND PURCHASE OF THE SHARES.
1.1. Agreement to Sell and Purchase. Subject to the terms and
conditions set forth in this Agreement, the Sellers shall
sell, transfer, convey and deliver to the Purchaser, and the
Purchaser shall purchase and accept from the Sellers, the
Shares.
1.2. Purchase Price and Closings. The purchase price (the "Purchase
Price") for the Shares shall be $600,000 payable in shares of
Common Stock, $ .01 par value [NASDAQ: MCSI] (the "Mark
Stock")
The Mark Stock to be issued shall equal the Purchase Price based on
the closing sales prices as set out below. All fractional shares of
Mark Stock will be rounded up to the next whole number
The Mark Stock will be issued as follows:
(a) First Closing. That number of shares of Mark Stock
equal to US $300,000 divided by the closing sales
price on the third business day preceding the Closing
Date ("First Closing") of the Agreement.
(b) Second Closing. That number of shares of Mark Stock
equal to US $ 300,000 divided by the closing sales
price on the third business day immediately preceding
a date six months from the First Closing (the "Second
Closing")
Notwithstanding the foregoing if the stock price of Mark's shares shall
fall below $0.75 at any time after the date of this Agreement and
before all the Mark Stock is issued to the Sellers the aggregate number
of shares of Mark Stock to be issued to the Sellers shall not exceed
500,000 shares and the balance of the Purchase Price shall be paid to
the Sellers in cash (US Dollars) within 10 days of the Second Closing
The First Closing and the Second Closing are collectively referred to
herein as the "Closings".
2. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers represent and warrants to the Purchaser as follows:
2.1. Authorisation; No Encumbrances. The Sellers have the legal
right and capacity to enter into this Agreement and to perform
the transactions contemplated to be performed hereunder. This
Agreement constitutes the legal, valid and binding agreement
of the Sellers and is enforceable against them in accordance
with its terms, except to the extent that enforceability may
be limited by bankruptcy, insolvency, moratorium or other laws
affecting the enforceability of creditor's rights generally
and that equitable remedies may be granted in the discretion
of a court. The Sellers have good, valid and marketable title
to the Shares, free and clear of all liens, security
interests, pledges, charges, claims and encumbrances of every
kind.
2.2. Approvals. No consents, approvals, permits, authorisations and
orders from any person or from any United Kingdom regulatory
governmental or other authority or agency are necessary for
the due execution and delivery by and on behalf the of Sellers
of this Agreement and for the consummation of the transactions
contemplated in this Agreement by the Sellers.
2.3. Capitalisation The authorised share capital of SMI consists of
900 Ordinary Shares of 1.00 pound each all of which have been
issued. To the best of the Sellers' knowledge and belief there
are no outstanding options, rights, warrants, convertible
securities or other agreements obligating SMI to issue any
additional shares of capital stock and as far as the Sellers
are aware SMI does not own, directly or indirectly, any of the
capital stock of any other corporation, association or
business entity.
2.4. Accounts.
(a) The Sellers shall deliver to the Purchaser the audited
Accounts of SMI for the year ended December 31 1995
(the "Audited Accounts") and Mr Cummins represents
that the Audited Accounts will fairly and accurately
reflect the financial condition of SMI for such period
in accordance with the Auditing Standards issued by
the Auditing Practices Board and the Companies Act of
1985. The Sellers shall also deliver unaudited
management accounts for the 31 March 1996 ("the
Management Accounts"). Mr Cummins represents that the
Management Accounts will fairly and accurately reflect
the financial condition of SMI for such period subject
to the normal recurring year-end adjustments and
except for the absence of certain footnote information
provided however no liability will arise under this
representation unless such inaccuracies in the
Management Accounts exceed 15,000 pounds in the
negative. For the avoidance of doubt the Management
Accounts shall consist of (i) profit and loss account
(ii) Balance Sheet (iii) purchase ledgers (aged) (iv)
sale ledgers (aged), together with explanatory
schedules
(b) From 31 March 1996 to the date of the First Closing
there will have been no material adverse change in the
operations or financial condition of SMI
2.5. Organisation, Good Standing, Power, etc. SMI has been duly
organised, is validly existing and in good standing under the
laws of England, has full corporate power and authority to
own, operate and lease its properties and to carry on its
business as presently conducted, and to the best of the
Sellers' knowledge and belief SMI is duly qualified to do
business and is in good standing in every jurisdiction in
which the nature of its business make such qualification
necessary.
2.6. Litigation and Contingent Liabilities. There are no actions,
suits, proceedings or investigations pending or, to the
knowledge of the Sellers, threatened against the Sellers,
which question or challenge the validity of this Agreement or
action to taken hereunder. To the best of Mr Cummins knowledge
and belief there is no pending or, to the knowledge of Mr
Cummins threatened litigation, order, writ, injunction or
decree of any court or governmental agency against or
effecting the business of SMI.
2.7. Taxes Save as already disclosed to the Purchaser and as far as
Mr Cummins is aware: all taxes required by law due and payable
by SMI have been paid; all taxes SMI is obligated to withhold
from amounts owing to any employee; creditor or third party
have been withheld; and SMI has filed all tax returns which
are required to be filed. Mr Cummins believes in good faith
that such returns are true and correct, and (save as already
disclosed to the Purchaser) that SMI has caused to be paid or
made provision for all taxes which have become due.
2.8. Intellectual Property Rights. The Sellers confirm that they
have no rights or claims to any of the patents, trade marks,
trade names, copyrights, and applications for patents used by
SMI in its business ("the Trade Property") and the Sellers
also confirm that they had not assigned or transferred to any
person any rights that would have comprised the Trade Property
of SMI at any time. Mr Cummins is not aware of any third party
infringement of any of the Trade Property and as far as Mr
Cummins is aware none of the Trade Property infringes the
rights of any other persons
2.9. Information Regarding The Purchaser The Sellers (i) have
received and reviewed the Purchaser's (a) Annual Report on
Form 10-K for the year ended June 30, 1995, (b) Quarterly
Report for the period ended December 31, 1995, and (c) Proxy
Statement for the Annual Meeting of Shareholders held on
December 18, 1995 (collectively the "SEC Reports"), (ii) no
oral or written statement or inducement which is contrary to
the information in the SEC Reports has been made by or on
behalf of the Purchaser and (iii) the Sellers have not been
furnished any other literature other than the SEC Reports
2.10. Exclusions The Sellers shall not be liable to the Purchaser
for any breach of representations or warranties given to
Purchase by any other party, including, but not limited to,
the other shareholders of SMI. The Purchaser acknowledges that
the Purchaser has not been induced to enter into this
Agreement in reliance upon any statement or representation
made by either of the Sellers not expressly set out or
referred to in this Agreement
2.11. The following provisions shall apply in respect of the
representations and warranties given by the Sellers to the
Purchaser in this Agreement:
(a) the Purchaser may not bring any claims against the
Sellers in respect of any matters already known to the
Purchaser prior to the First Closing;
(b) the Purchaser may only bring claims against the
Sellers relating to the representations and warranties
set out in Clause 2.4(b) in respect of matters of
which Mr Cummins was aware prior to the First Closing;
and
(c) the Purchaser may bring no claims against the Sellers
in respect of the representations and warranties in
Clause 2.4(b) in respect of any claims amounting to
less than 15,000 pounds
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to the Sellers as follows:
3.1. Organisation, Authorisation, No Conflict The Purchaser has
been duly organised, is validly existing and in good standing
under the laws of the State of Delaware and has full corporate
power to own, operate and lease its properties and to carry on
its business as presently conducted, and is duly qualified to
do business and is in good standing in every jurisdiction in
which the nature of its business make such qualification
necessary. The Purchaser has the legal right and capacity to
enter into this Agreement and to perform the transactions
contemplated to be performed by it hereunder. This Agreement
constitutes the legal, valid and binding agreement of the
Purchaser and is enforceable against it in accordance with its
terms except to the extent that enforceability may be limited
by bankruptcy, insolvency, moratorium or other laws affecting
the enforceability of creditors' rights generally and that
equitable remedies may be granted in the discretion of a
court.
The execution, delivery and performance of this Agreement by
the Purchaser and the related documents, transactions and
instruments contemplated hereby does not and will not violate,
conflict with, result in a breach of any provisions of,
constitute and default (or an event which, with or without due
notice or lapse of time, or both, would constitute a default)
under, result in the termination of, accelerate the
performance required by, or result in creation of any lien,
security interest, charge or other encumbrance upon any of the
Purchaser's assets under any of the terms, conditions or
provisions of any material note, bond, mortgage, indenture,
deed of trust, license, lease, loan agreement, judgement,
order, decree, statute, rule, regulation or other agreement,
instrument or obligation to which the Purchaser is a party.
3.2. Approvals No consents, approvals, permits, authorisations and
orders from any United States regulatory, governmental or
other authority or agency are necessary for the due execution
and delivery by and on behalf of the Purchaser in connection
with this Agreement and for the consummation of the
transactions contemplated in this Agreement by the Purchaser.
3.3. SEC Reports As of their respective date, the SEC Reports,
including financial statements, complied in all material
respects to applicable United States Federal securities laws
and no such report contained any information which was false
or misleading with respect to any material fact or omitted to
state any material fact which was necessary to make the
statements therein not misleading.
3.4. Absence of Adverse Changes Since the filing of the latest SEC
Report disclosed to the Sellers prior to the date of this
Agreement, there has been no material adverse change in the
operations or financial condition of the Purchaser
3.5. Litigation and Contingent Liabilities There are no actions,
suits, proceedings or investigations pending or, to the
knowledge of the Purchaser, threatened against the Purchaser,
which question or challenge the validity of this Agreement or
action to be taken hereunder. Except as disclosed in the SEC
Reports, there is no pendings or, to the knowledge of the
Purchaser, threatened litigation, order, writ, injunction or
decree of any court or governmental agency against or
effecting the business of the Purchaser. Except as disclosed
in the SEC Reports, there is no contingent or undisclosed
liability of the Purchaser known to the Purchaser
3.6. Status of Mark Stock The Mark Stock to be issued in payment of
the Purchase Price, when issued by the Purchaser to the
Sellers will be duly authorised, validly issued, fully paid
and nonassessable.
4. LIMITATIONS OF LIABILITY AMONG PARTIES
4.1. Maximum Liability
(a) The Maximum Liability of the Sellers to the Purchaser
under and in connection with this Agreement including
(but not limited to) in respect of any breach of
representations and warranties and in respect of the
indemnification given in Clause 10.2 shall be limited
to:
(i) the return of the Mark Stock issued to the Sellers
and any cash paid to the Sellers by the Purchaser
under this Agreement; and
(ii) (if any of the Mark Stock has been sold by the
Sellers)then instead of returning that Mark Stock to
the Purchaser the Sellers shall be liable instead for
the amount received by the Seller from the purchasers
of the Mark Stock
and for the purposes of calculating the Sellers'
liability to the Purchaser the value of any Mark Stock
issued to the Sellers that the Sellers return to the
Purchaser shall be the value of that Mark Stock at the
date it was issued as calculated under Clause 1
(b) The Maximum Liability of the Purchaser to the Sellers
under and in connection with this Agreement including
(but not limited to) in respect of any breach of
representations and warranties and in respect of the
indemnification given in Clause 10.3 shall be limited
to an aggregate sum of $600,000
4.2. The Sellers shall deposit the certificates representing the
Mark Stock issued to them on the First Closing ("the First
Certificates") with their solicitors Messrs Fennemores who
shall hold the First Certificates on the following basis:
(a) unless a claim has been made by the Purchaser against
the Sellers as provided for in the following
sub-clause Fennemores shall return the First
Certificates to the Sellers at the end of the holding
periods applicable to the Mark Stock issued at the
First Closing;
(b) in the event that Fennemores receive a certificate in
a form set out in Exhibit B ("the Professional
Certificate") Fennemores shall not release the First
Certificates to the Sellers as provided for above but
Fennemores shall hold the First Certificates instead
until Fennemores are served with a formal order from
any competent court requiring the First Certificates
to be released in accordance with that order or until
Fennemores receive joint written instructions from the
Sellers and the Purchaser in the form set out in
Exhibit C; and
(c) although Fennemores shall be obliged to take
reasonable care of the First Certificates they shall
not in any circumstances be liable to any of the
parties for their loss or destruction
4.3. The Purchaser confirms that if Fennemores have not been served
with a Professional Certificate within the holding periods
applicable to the Mark Stock issued at the First Closing then
the Purchaser shall issue or pay the Mark Stock or cash (as
the case may be) to the Sellers without retention or set-off
on the Second Closing but nothing in this clause shall
prejudice the Purchaser's rights to bring any action against
the Sellers at a later date under this Agreement
4.4. For the avoidance of doubt it is hereby confirmed that:
(a) the Purchaser may only exercise any rights of
retention or set off that it may have against any of
the Mark Stock or any cash due to the Sellers under
this Agreement in respect of any breaches by the
Sellers of representations and warranties (but not
under the indemnity given by the Sellers) only to the
extent that the amount of the retention or set-off is
reasonable in all the circumstances; and
(b) the Purchaser shall not be entitled to recover their
losses from both the Sellers and the other
shareholders of SMI in respect of the same matters
4.5. Prior to bringing any claim against the Sellers under this
Agreement in respect of the breach of any warranty or
representation the Purchaser shall provide the Sellers with an
appropriate Professional Certificate and no proceedings may be
commenced against the Sellers until this obligation has been
complied with
5. ISSUANCE OF MARK STOCK PURSUANT TO REGULATION S
5.1. Exemption, Reliance on Representations The Mark Stock to be
issued pursuant to this Agreement shall be effected in
reliance upon the transaction exemption afforded by Regulation
S ("Regulation S") as promulgated under the U.S. Securities
Act of 1933 ("Securities Act") as amended. The Purchaser
represents and confirms to the Sellers that the offer and sale
of the Mark Stock does not need to be registered under the
Securities Act and is subject to the rules governing offers
and sales made outside the United States pursuant to
Regulation S. The Sellers understand that the Purchaser is
relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgements and understandings of
the Sellers set forth in this Section 5 in order to determine
the applicability of such exemptions.
5.2. Sellers Representations The Sellers represents to the
Purchaser relative to Regulation S that:
(a) Offshore Transaction-Non U.S. Person. Neither of the
Sellers nor any person or entity for whom the Sellers
are acting as fiduciary is a U.S. Person. A "U.S.
Person" means any one of the following: (i) a natural
person resident in the United States; (ii) a
partnership or corporation organised or incorporated
under the laws of the United States; (iii) an estate
of which any executor or administrator is a U.S.
Person; (iv) a trust of which any trustee is a U.S.
Person; (v) an agency or branch of a foreign entity
located in the United States; (vi) an account held by
a dealer or other fiduciary organised, incorporated,
or (if an individual) resident in the United States;
of (viii) a partnership or corporation if: (A)
organised or incorporated under the laws of any
foreign jurisdiction; and (B) formed by a U.S. Person
principally for the purpose of investing in securities
not registered under the Securities Act
(b) Offshore Transaction-Offer and Sale Outside United
States. At the time the issuance of the Mark Stock was
originated, the Sellers were outside the United States
and no offer to the Purchaser the Mark Stock was made
in the United States.
(c) Investment Intent. The Sellers are acquiring the Mark
Stock for his and her own account and has full
investment discretion with respect to the Mark Stock.
The Sellers are acquiring the Mark Stock for
investment purposes and not with a view towards
distribution, the Sellers have no present intention to
sell the Mark Stock, and the Sellers have no present
arrangement (whether or not legally binding) at any
time to sell the Mark Stock to or through any person
or entity.
(d) Compliance with U.S. Securities Law. All subsequent
offers and sales of the Mark Stock shall be made in
compliance with Regulation S, pursuant to registration
of securities under the Securities Act or pursuant to
an exemption from registration. In any case, the
Sellers will not offer or resell the Mark Stock to
U.S. Persons as defined in Regulation S (whether such
transactions are within or outside the United States);
(i)(a) with regard to 10,000 shares of the Mark Stock
issued at the First Closing during the forty one day
holding period commencing the First Closing; (i)(b)
with regard to the remainder of the Mark Stock issued
at the First Closing during the six month holding
period commencing on the First Closing; and (i)(c)
with regard to the Mark Stock issued at the Second
Closing during the sixty day holding period commencing
the Second Closing (ii) the Mark Stock will not be
offered or resold (whether or not in transactions
outside the United States), after the holding period
unless a registration statement under the Securities
Act is in effect at the time of such offer or resale,
or the Purchaser shall have received the favourable
opinion of its counsel, to the effect that such sale
or other transfer may be made in the absence of
registration under the Securities Act and registration
or qualification in every applicable state.
The certificates representing the Mark Stock will be
subject to a stop-transfer instruction from the
Purchaser to the Purchaser's transfer agent and the
certificates for the Mark Stock shall also have
endorsed upon them a restrictive legend prohibiting
the sale of the stock in question during the relevant
holding period. The Purchaser shall ensure that the
stop-transfer instruction [and restrictive legend]
will be removed at the Sellers' request upon the
receipt by the Purchaser of Seller's representation
letter in the form set forth as Exhibit A and the
favourable opinion of the Purchaser's Counsel (which
opinion the Purchaser shall request immediately upon
obtaining the Seller's representation letter) to the
effect that such stop-transfer instruction and
restrictive legend may be removed in compliance with
Regulation S and all opinions from the Purchaser's
Counsel shall be in writing and copies shall be
supplied to the Sellers. The Sellers realise that the
Mark Stock is not a liquid investment.
(e) Conditioning the United States Market. The Sellers
will not engage in any activity for the purpose of, or
that could reasonably be expected to have the effect
of, conditioning the market in the United States for
any of the Mark Stock sold hereunder
(f) Transfers The Sellers shall by written agreement
require that any direct or indirect purchase from the
Sellers conform with the restrictions set forth in
this Section 5.
(g) Short Positions Neither of the Sellers nor any of
their affiliates will directly or indirectly maintain
any short position in any securities of the Purchaser
until after the end of the holding period
5.3. Purchaser Representations. The Purchaser represents to the
Sellers relative to Regulation S that:
(a) Reporting Company Status. The Purchaser is a
"Reporting Company" as defined by Rule 902 of
Regulation S. The Purchaser is in full compliance, to
the extent applicable, with all reporting obligations
under either Section 12(b) or 12(g) or 15(d) of the
Securities Exchange of 1934, as amended (the "Exchange
Act"). The Purchaser has registered its Common Stock
pursuant to Section 12 of the Exchange Act and the
Common Stock trades on NASDAQ.
(b) Offshore Transaction-Non U.S. Person. The Purchaser
has not offered the Mark Stock to any person in the
United States, any identifiable groups of U.S.
citizens abroad, or to any U.S. Persons as that term
is defined in Regulation S. At the time the issuance
of the Mark Stock was originated, the Purchaser and/or
its agents reasonably believed that both the Sellers
were outside of the United States and was not a U.S.
Person. The Purchaser and/or its agents believe that
the transaction has not been pre-arranged with a buyer
in the United States.
(c) Offshore Transaction-No Directed Selling Efforts. In
regard to the issuance of the Mark Stock, the
Purchaser has not conducted any "directed selling
efforts" as that term is defined in Rule 902 of
Regulation S nor has the Purchaser conducted any
general solicitation relating to the offer and sale of
the securities which are the subject of this
transaction to person resident within the United
States or elsewhere.
6. CLOSING
6.1. Date and Place The Closing for the consummation of the
transactions contemplated by this Agreement shall take place
on a date mutually agreed to between the Parties as soon as
practicable after the satisfaction or waiver of all conditions
precedent to this Agreement and in any event within 14 days of
the satisfaction or waiver of all conditions precedent to this
Agreement (the "Closing Date"). The Closing shall take place
at the offices of SMI, or at such other place as may be
mutually agreed upon in writing by the Purchaser and the
Sellers.
6.2. Sellers Closing Documents and Instruments At the Closing, the
Sellers shall deliver the following:
(a) Delivery of the Shares. The Sellers shall deliver to
the Purchaser certificate(s) evidencing the Shares
duly endorsed for transfer or accompanied by stock
powers endorsed in blank with signatures guaranteed,
free and clear of all liens, security interests,
pledges, charges, claims and encumbrances of every
kind and (ii) the Purchaser shall immediately possess
and exercise all rights of ownership in the Shares
including the right to vote and transfer the Shares
(b) Relinquishment of rights in Trade Property Assignments
or relinquishment of all rights to SMI assets,
including Trade Property
(c) Other Items Such other items as may be necessary or
appropriate to effectuate the transactions
contemplated by this Agreement
6.3. Purchaser's Closing Documents and Instruments At the Closing,
the Purchaser shall deliver the following:
(a) Delivery of the Mark Stock The Purchaser shall deliver
to the Sellers certificate(s) evidencing the Purchase
Price, free and clear of all liens, security
interests, pledges, charges, claims and encumbrances
of every kind, except as provided for in this
Agreement
(b) Corporate Resolutions Copies of resolutions of the
Board of Directors of the Purchaser certified by its
Secretary, which constitute all necessary corporate
authorisation for the consummation of the transactions
contemplated by this Agreement.
(c) Such other items as may be necessary or appropriate to
effectuate the transactions contemplated by this
Agreement
7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PURCHASER
7.1. Conditions Precedent The obligations of the Purchaser to
consummate the transactions contemplated by this Agreement are
subject to and conditioned upon the satisfaction or waiver by
the Purchaser, at or prior to the Closing, of the following:
(a) Representations and Warranties True. The
representations and warranties of the Sellers
contained herein shall be true and accurate in all
material respects as of the Closing Date as though
such representations and warranties were made on and
as of such date, except for any changes permitted by
the terms of this Agreement, or consented to, at or
prior to the applicable closing, in writing by the
Purchaser.
Performance of Covenants. The Sellers shall have
performed and complied in all material respects with
each covenant, agreement and condition required to be
performed or complied with by them prior to or on the
Closing Date.
(b) No Governmental or Other Proceeding or Litigation No
injunction or order (preliminary or permanent and
regardless of the failure of any plaintiff to post any
bond or undertaking) shall have been issued or
statute, rule or regulation enacted or promulgated by
any court, tribunal or other judicial, administrative
or legislative body which shall enjoin, prohibit or
otherwise make unlawful the consummation of this
Agreement and transactions contemplated herein
(c) Acquisition of all the Issued Share Capital of SMI.
The Purchaser through simultaneous transaction(s)
shall have acquired all the outstanding shares of SMI.
(d) Satisfactory Due Diligence. The Purchaser shall have
completed a due diligence investigation regarding the
financial statements, results of operations, financial
condition and operations of SMI and the results of
such investigation shall be satisfactory to the
Purchaser. During the period from the date hereof to
the Closing Date Mr Cummins shall afford to the
Purchaser, and its counsel, accountants, and other
representatives, full access during normal business
hours to the facilities, properties books, records and
personnel of SMI so that Buyer may have the
opportunity to make such reasonable investigation of
the affairs of SMI as it shall desire and SMI will
provide such additional financial and operating data
and other information as the Purchaser shall from time
to time reasonably request.
7.2. Certain Notifications At all times prior to the applicable
Closing Date, the Sellers shall promptly notify the Purchaser
in writing of the occurrence of any event which will or might
result in the failure to satisfy the conditions contained in
this Section 7
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE SELLERS
8.1. Condition Precedent The obligation of the Sellers to
consummate the transactions contemplated by this Agreement are
subject to and conditional upon the satisfaction or waiver by
the Sellers, at or prior to Closing, of the following:
(a) Representations and Warranties True. The
representations and warranties of the Purchaser
contained in this Agreement shall be true and accurate
in all material respects as of the Closing Date as
though such representations and warranties were made
on and as of such date, except for any changes
permitted by the terms of this Agreement or consented
to, at or prior to Closing, in writing by the Sellers
(b) Performance of Covenants. The Purchaser shall have
performed and complied in all material respects with
each covenant, agreement and condition required by
this Agreement to be performed or complied with by it
prior to or on the Closing Date
(c) No Governmental or Other Proceeding or Litigation. No
injunction or order (preliminary or permanent and
regardless of the failure of any plaintiff to post any
bond or undertaking) shall have been issued or
statute, rule or regulation enacted or promulgated by
any court, tribunal or other judicial, administrative,
or legislative body which shall enjoin, prohibit or
otherwise make unlawful the consummation of this
Agreement and the transactions contemplated hereby.
(d) Employment Agreement. SMI shall have executed an
employment agreement with Mr Cummins in the form
attached hereto as Exhibit D.
8.2. Certain Notifications. At all times prior to the Closing Date,
the Purchaser shall promptly notify the Sellers in writing of
the occurrence of any event which will or might result in the
failure to satisfy the conditions contained in this Section 8.
9. AGREEMENTS AND COVENANTS SUBSEQUENT TO THE CLOSING
9.1. Agreement Not to Sell. Each of the Sellers agree not to sell,
pledge, hypothecate or otherwise transfer (i) in the aggregate
10,000 shares of the Mark Stock issues at the First Closing
for a period of 41 days from such date, (ii) the remaining
Mark Stock issues at the First Closing for a period of
six-months from such date and (iii) the Mark Stock issues at
the Second Closing for a period of 60 days from such date.
During such periods, the shares will be subject to
stop-transfer instructions issued to the Purchaser's transfer
agent and the certificates shall include a restrictive legend.
9.2. Acknowledgement of No Ownership in Trade Properties. Each of
the Sellers hereby confirms and in the alternative
relinquishes any and all rights, title and interest he or she
may have in the assets, including Trade Property, of SMI and
agrees to execute any and all documents necessary to evidence
the foregoing.
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES: INDEMNIFICATION
10.1. Survival. All representations, warranties and agreements to
indemnify made in this Agreement by the Sellers (or either of
them) to the Purchaser and by the Purchaser to the Sellers
shall survive the Closing, except that no action may be
maintained by either party hereto based on a claim arising
under this Agreement unless commenced within two years of the
closing, provided always that no action may be brought against
the Sellers (or either of them):
(a) if SMI shall fail to pay Mr Cummins any sums due to
him under his contract of employment for more than 30
days (and Mr Cummins confirms that he shall not in any
way delay or prevent SMI from paying any sums due to
him); or
(b) SMI should terminate Mr Cummins employment within 2
years of this Agreement for reasons other than those
set out in Clauses 5(ii) - (viii) of his Employment
Agreement
10.2. The Sellers Indemnification of The Purchaser Notwithstanding
anything contained herein to the contrary, the Sellers shall
indemnify to hold harmless the Purchaser, its representatives
and agents against any reasonable expenses, including
attorney's fees, fines, losses, claims, damages, liabilities,
costs, monetary judgements and amounts paid in settlement in
connection with any threatened, pending or completed claim,
action, suit, proceeding or investigation arising out of or
pertaining to any act or omission which arises out of or is
based upon the breach of any representation, warranty,
convenant or agreement of the Sellers in this Agreement or in
any certificate or other instrument furnished to the Purchaser
hereunder.
10.3. The Purchaser's Indemnification of the Sellers Notwithstanding
anything contained herein to the contrary, the Purchaser shall
indemnify and hold harmless the Sellers, their employees,
representatives and agents against any reasonable expenses,
including attorney's fees, fines, losses, claims, damages,
liabilities, costs, monetary judgements and amounts paid in
settlement in connection with:
(a) any threatened, pending or completed claim, action,
suit, proceeding or investigation arising out of or
pertaining to any act or omission which arises out of
or is based upon the breach of any representations,
warranty, convenant or agreement of the Purchaser in
the Agreement or in any certificate or other
instrument furnished to the Sellers by the Purchaser;
and
(b) (without limitation or prejudice to the foregoing) any
breach by the Purchaser of its obligations under
Clauses 12.2.(b) and 12.2.(c)
10.4. Indemnification Notice Procedure Whenever any claim shall
arise for indemnification hereunder, the party seeking
indemnification shall promptly notify the indemnifying party
as set forth below.
The party seeking indemnification shall promptly notify the
other party as the indemnifying party of the claim and, when
known, the facts constituting the basis for such claim. In the
event of any claim for indemnification hereunder resulting
from or in connection with any claim or legal proceedings by a
third party, the notice to the indemnifying party shall
specify, if known, the amount or an estimate of the amount of
the liability arising therefrom. The indemnified party shall
not settle or compromise any claim by a third party for which
it is entitled to indemnification hereunder, without the prior
written consent of the indemnifying party (which shall not be
unreasonably withheld) unless suit shall have been instituted
against it and the indemnifying party shall have taken control
of such suit after notification thereof as provided for below.
In connection with any claim giving rise to indemnity
hereunder resulting from or arising out of any claim or legal
proceeding by a person who is not a party to this Agreement,
the indemnifying party at its sole cost and expense may, upon
written notice to the indemnified party, assume the defence of
any such claim or legal proceeding if it acknowledges to the
indemnified party in writing its obligations to indemnify the
indemnified party with respect to all elements of such claim.
The indemnified party shall be entitled to participate in (but
not control) the defence of any such action, with its counsel
and at its own expense. If the indemnifying party does not
assume the defence of any such claim or litigation resulting
therefrom (i) the indemnified party may defend against such
claim or litigation, in such manner as it may deem
appropriate, including, but not limited to, settling such
claim or litigation, after giving notice of the same to the
indemnified party, on such terms as the indemnified party may
deem appropriate, and (ii) the indemnifying party shall be
entitled to participate in (but not control) the defence of
such action, with its counsel and at its own expense. If the
indemnifying party thereafter seeks to question the manner in
which the indemnified party defended such third party claim or
the amount or nature of any such settlement, the indemnifying
party shall have the burden to prove by a preponderance of the
evidence that the indemnified party did not defend or settle
such third party claim in a reasonably prudent manner. All
indemnifications any party hereunder shall be effected by
payment of cash or delivery of a certified or official bank
check (cheque) in the amount of the indemnification liability.
11. TERMINATION
11.1. Termination This Agreement may be terminated at any time prior
to the Closing Date:
(a) by mutual consent of the Purchaser and the Sellers;
(b) by either the Purchaser or the Sellers if the Closing
shall not have been consummated by May 31, 1996;
(c) by the Sellers if the Purchaser fails to perform in
any material respect any of its obligations under this
Agreement or any of the Sellers' conditions precedent
are not satisfied;
(d) by the Purchaser, if the Sellers fail to perform in
any material respect any of its obligations under this
Agreement or any of the Purchaser's conditions
precedent are not satisfied;
(e) by either the Purchaser or the Sellers, if a court of
competent jurisdiction or governmental, regulatory or
administrative agency or commission shall have issued
an order, decree or ruling (other than an ex-parte
order or temporary restraining order) or taken any
other action, in each case restraining, enjoining or
otherwise prohibiting the transactions contemplated by
this Agreement
11.2. Effect of Termination In the event of termination of this
Agreement by the Purchaser and/or the Sellers, as provided
above:
(a) this Agreement shall become void, with no further
effect; and
(b) the Purchaser shall have no claim of any kind against
the Sellers under this Agreement or generally
12. GENERAL PROVISIONS
12.1. Unless specified to the contrary in this Agreement:
(a) the Sellers obligations and liabilities under this
Agreement shall be joint not joint and several;
(b) all references to the Sellers in this Agreement shall
be a reference to the Sellers jointly and not to the
Sellers jointly and severally; and
(c) (for the avoidance of doubt) the maximum liability of
the sellers to the Purchaser set out in Clause 4.1(a)
shall also relate to and include the amount of all
claims brought against any of the Sellers individually
12.2. It is hereby agreed between Mr Cummins and the Purchaser:
(a) that prior to the Closing Date Mr Cummins shall not
use SMI's existing credit facility with Barclays Bank
Plc to repay himself any more than 25,000 pounds of
the sums owing to him from SMI; and
(b) that the Purchaser shall ensure that Mr Cummins is
paid the balance of all sums owing to him from SMI at
the Closing Date in three consecutive equal monthly
instalments the payments in question commencing at the
end month during which the Closing Date falls; and
(c) Mr Cummins agrees to use his reasonable efforts to
maintain the existing credit facility with Barclays
Bank Plc and to increase its limit to 50,000 pounds by
giving his personal guarantee or otherwise and the
Purchaser hereby undertakes that it shall ensure that
Mr Cummins personal liability under the credit
facility in question shall be terminated and paid off
no later than 90 days following the Closing Date
12.3. Time shall be of the essence as regards the Purchasers
obligations under this Agreement
12.4. Entire Agreement This Agreement and the schedules and Exhibits
referred to herein contain the entire agreement between the
parties hereto with respect to the transactions contemplated
in this Agreement and supersede all previous written or oral
negotiations, commitments and writings.
12.5. Amendment This Agreement may not be amended except by an
instrument in writing signed on behalf of each of this parties
12.6. Waiver Any term or provision of this Agreement may be waived
in writing at any time by the party which is entitled to the
benefits thereof
12.7. Expenses Whether or not the Closing occurs, all costs and
expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such expense.
12.8. Headings. The headings in this Agreement are for convenience
of reference only and shall not affect its interpretation.
12.9. Counterparts. This Agreement may be executed in counterparts
and by facsimile, each of which shall be an original and all
of which taken together will constitute one instrument.
12.10. Assignment. This Agreement may not be assigned by any party
without the prior written consent of the other party.
12.11. Successors and Assigns. This Agreement binds, inures to the
benefit of, and is enforceable by the successors and assigns
of the parties, and does not confer any rights on any other
persons or entities.
12.12. Independent Legal Advice Mr Cummins and Mrs Addington each
confirm that they each received independent legal advice
before entering into this Agreement
12.13. Governing Law. This Agreement shall be construed and enforced
in accordance with the substantive laws of the State of New
Jersey.
12.14. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered
personally or sent by telex, facsimile transmission or other
telecommunications device capable of creating written record
(and promptly confirmed in writing) to the parties at the
following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to the Sellers, to
Christopher Cummins Telephone: (01372) 362492
Eastcote House Facsimile: (01372) 372469
16 The Mount
Fetcham
Surrey
KT22 9EE
with a copy to:
John Fleming, Esq Telephone:(01908) 678241
Fennemores Facsimile:(01908) 665985
Bouverie House
200 Silbury Boulevard
Central Milton Keynes
MK9 1LL
(b) if to the Purchaser, to:
Mr. Carl Coppola Telephone: (201) 893-0500
1515 Broad Street Facsimile: (201) 893-0013
Bloomfield NJ 07003
with a copy to:
Timothy J. McCartney, Esq Telephone: (215) 396-7156
Elsa Way Facsimile: (215) 396-7157
Richboro, PA 18954
12.15. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other
jurisdictions.
IN WITNESS WHEREOF, intending to be legally bound, the parties have executed
this Agreement as of the date first above written.
SELLERS
- -------------------------------------
Christopher Peter Rowson Cummins
- -------------------------------------
Moira Louise Addington
PURCHASER
MARK SOLUTIONS, INC.
By:
---------------------------------
Carl Coppola, President
EXHIBIT A
[PURCHASERS LETTERHEAD 1]
_______________________________ 1996
Mark Solutions, Inc.
1515 Broad Street
Bloomfield, New Jersey 07003
Dear Sirs:
We refer to the agreement dated 2
between the undersigned and Mark Solutions, Inc. ("Mark") regarding the
acquisition of 3 shares of Mark Common
Stock. This will confirm that 4 has complied
with the provision thereof, and that 4 will
continue at all times to conform and comply with the representations,
warranties and agreements set forth therein.
Very truly yours,
4
- -------------------------------
By: 5
---------------------------
- -------------------------------
(Type in Name and Title)
INSTRUCTIONS
1. Letter must be typed on Purchaser's letterhead and date filled in no
earlier than the expiration date of the restricted period.
2. Insert date of subscription agreement.
3. Insert number of shares purchased.
4. Insert full name of purchaser.
5. Sign and identify the name and title of authorised signatory.
EXHIBIT B
The Professional Certificate
Part A - The form of the certificate to be issued in respect of any intended
claim by the Purchaser against the Sellers under Clause 2.4 of this
Agreement.
This certificate must be given by a firm of UK Certified Accountants.
[LETTERHEAD]
We have been instructed by Mark Solutions, Inc. ("Mark") in connection with its
possible claims against Mr Cummins and Mrs Addington under a Share Sale
Agreement dated [insert date] made between Mark (1) CPR Cummins (2) and ML
Addington (3) ("the Agreement").
We hereby certify that having considered the terms of the warranty set out in
Clause 2.4 of the Agreement we have advised Mark as follows:
1. that our examination of the financial records of Simis Medical Imaging
Limited ("SMI") indicate that the Management Accounts (as defined in
the Agreement) do not fairly and accurately reflect the financial
condition of SMI for the period to which it relates; and
2. that in our reasonable opinion SMI's financial condition was inaccurate
in the Management Accounts by an amount in excess of 15,000 pounds in
the negative
Full particulars of the matters to which points 1 and 2 above relate are set out
in the attached summary.
Signed by
For and on behalf of
[Name of Firm]
Date:
EXHIBIT B Cont.
Part B - The form of the certificate to be issued in respect of any intended
claim by the Purchaser against the Sellers under any provision of this
Agreement other than Clause 2.4.
This certificate must be given by a firm of UK Solicitors.
[LETTERHEAD]
We have been instructed by Mark Solutions, Inc. ("Mark") in connection with its
possible claims against Mr Cummins and Mrs Addington under a Share Sale
Agreement dated [insert date] made between Mark (1) CPR Cummins (2) and ML
Addington (3) ("the Agreement").
We hereby certify that having considered the terms of the Agreement we have
advised Mark as follows:
1. the Sellers have been in breach of one or more representations or
warranties given by them under the Agreement; and
2. the breaches in question are material and in our reasonable opinion
have resulted in losses to Mark exceeding 15,000 pounds.
Full particulars of the matters to which points 1 and 2 relate are set out in
the attached summary.
Signed by
For and on behalf of
[Name of Firm]
Date:
EXHIBIT C
[LETTER TO FENNEMORES]
Dear Sirs
We are writing to you in connection with a Share Sale Agreement dated [state
date] made between Mark Solutions, Inc (1) CPR Cummins (2) and ML Addington (3),
with regard to the certificates for Mark Stock held by you as provided for in
Clause 4.2 of that agreement.
Please send the certificates in question by registered mail to [state name] at
[address].
Signed by
.........................................................
for and on behalf of Mark Solutions, Inc.
.........................................................
CPR Cummins.
.........................................................
ML Addington.
Date:
CONFORMING COPY
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and dated the 28th day of May 1996, by and
between SIMIS MEDICAL IMAGING LIMITED whose registered office is at Abbots Fee,
Greenhill, Sherborne, Dorset DT9 4ET ("the Company") and CHRISTOPHER PETER
ROWSON CUMMINS of Eastcote House, 16 The Mount, Fetcham, Surrey KT22 9EE ("the
Employee").
RECITAL:
The Company has agreed to employ the services of the Employee to act as Managing
Director of the Company and the Employee has agreed to accept such employment,
each upon the terms contained herein.
NOW THIS AGREEMENT WITNESSETH as follows:
1. Initial Term. The Company shall employ the Employee for a fixed term of
three years commencing on 28th May, 1996 and ending 27th May , 1999,
("the Initial Term") and this Agreement shall be subject to subsequent
annual renewals after the end of the Initial Term as provided herein
2. Duties. Throughout the term of this Agreement, the Employee shall serve
the Company as Managing Director. The Employee shall faithfully and
diligently devote his best efforts, energies and abilities to the
duties and responsibilities reasonably required of him in his capacity
and his position, such responsibilities being similar to those
performed by other executives in the same capacity in similar sized
companies in the same industry as the Company. The Employee shall
discharge his duties in accordance with the policies, goals and
objectives established by the Board of Directors of the Company. During
the period of his employment the business affairs of the Company shall
occupy all the business time of the Employee.
3. Remuneration. The remuneration due to the Employee for the services
provided for herein shall be as follows:
(i) The Employee shall receive a base salary of 60,000 pounds in
the first year; 65,000 pounds in the second year and
70,000 pounds in the third year of this Agreement and such
higher amount as the Company's Board of Directors may, in its
sole discretion, from time to time fix, and the Employee's
salary shall be payable in equal (bi-weekly) instalments.
(ii) In addition to the base salary provided for herein, the
Employee shall also receive a bonus equal to 10% of the post
tax profits of Simis Medical Imaging Limited and this bonus
shall be paid to the Employee by the Company in respect of
each year of this Agreement within one month of the audited
accounts for the Company relating to the year in question
being produced.
(iii) At the Employee's option the Company shall either:
i) provide the Employee with a company car and the
benefit of a private health policy provided that the
total cost to the Company of providing both these
benefits does not exceed 750.00 pounds per month and
the Employee shall determine how the sum in question
shall be apportioned by the Company between the car
and the private health policy; or
ii) (as an alternative to the Company providing the
benefits referred to in the preceding sub-clause) the
Company shall increase the Employee's base salary by
750 pounds per month
(iv) The Company shall pay a sum equivalent to 5% of the Employee's
base salary per year into a pension policy in the Employee's
name and this sum shall be paid by the Company in monthly
instalments unless specified to the contrary by the Employee
(v) The Company shall pay reasonable business expenses incurred by
the Employee in connection with the promotion of the Company
and in connection with the business of the company, including
but not limited to travel and entertainment expenses, subject
to the presentment of appropriate receipts and documentation
of such expenses. The Company shall reimburse Employee not
less then monthly for such approved business expenses. At the
Employee's request the Company shall pay (in advance if
necessary) any reasonable expenses that may be incurred by the
Employee performing his duties under this Agreement and the
Company shall also provide the Employee with phone cards and
with a company credit card and a fuel card. The Company shall
reimburse the Employee all his reasonable business expenses
referred to above within 10 days of the Company receiving the
Employee's written request for payment together with
appropriate receipts and documentation.
4. Renewal of Employment. Not less than sixty (60) days prior to the
expiration of the then current term of this Agreement, each party
agrees to give written notice to the other of its desire to renew this
Agreement. If both parties agree to renew this Agreement the employment
of the Employee shall be extended for successive one (1) year periods
on the same terms and conditions as contained herein or on such other
terms and conditions as may be agreed.
5. Termination of Employment. Employee's employment with the Company shall
be terminated if any of the following occurs:
(i) if the Employee shall serve 12 months written notice
terminating his employment;
(ii) if the Employee dies;
(iii) if the Company in its reasonable discretion so decides, if the
Employee is unable through mental or physical illness, to
perform his duties under this Agreement for a period of four
(4) consecutive months;
(iv) if the Employee shall have been convicted of any crime other
than a driving or road traffic offence (as determined by a
court of competent jurisdiction);
(v) if the Employee shall have committed fraud or engaged in other
self-dealing acts regarding the Company;
(vi) if the Employee should materially breach the provisions of
Clause 6 to the Company's detriment;
(vii) if the Employee should materially and repeatedly fail, refuse
or wilfully neglect to carry out his duties under this
Agreement following written notice of such failure from the
Company; or
(viii) if the representations and warranties of Sellers contained in
that Share Purchase Agreement dated April 24 1996 are
negatively inaccurate by 15,000 pounds or greater
If Employee's employment is terminated under any of the above
provisions the Employee shall only be entitled to receive any base
salary, bonus (calculated pro rata in respect of any incomplete twelve
month period), and other benefits accruing prior to such termination
and he shall not be entitled to any other payments or compensation. If
Employee's employment is otherwise terminated by the Company, the
Employee shall be entitled to receive his base salary and bonus for the
remaining term payable (if possible as an ex gratia payment) at the
times that such sums would have been paid if the Employee had remained
employed by the Company.
6. Confidential Information; Noncompete.
Employee acknowledges that while providing services under this
Agreement, he will be privy to financial and other information
relating to the business and industry of the Company. Accordingly,
Employee acknowledge that he is acting in a fiduciary capacity with
respect to the Company and agrees as follows:
(i) During the term of this Agreement and at any time thereafter,
Employee shall not divulge, furnish or make accessible to
anyone (other than in the regular course of business) any
knowledge or information with respect to any confidential or
secret aspect of the business of the Company, including, but
not limited to, trade secrets and proprietary technology, or
any customer lists or other information relating to the
customers of the Company;
(ii) During the term of this Agreement and for a period of two (2)
years following the termination thereof, the Employee shall
not engage, as a 10% or greater shareholder, partner, sole
proprietor, employee, consultant or independent contractor of
any corporation, partnership or other business entity, in any
business activities which are in direct or indirect
competition with the Company, provided, however, the
restrictions of this section shall not apply in the event this
Agreement expires by its terms in three (3) years or the
Company terminates the Agreement other than in accordance with
Section 5(ii) - (viii)
During the term of this Agreement and for a period of two (2)
years following the termination hereof, he shall not, directly
or indirectly solicit any person who has been a client of the
Company one (1) year prior to the termination of this
Agreement;
During the term of this Agreement and for a period of two (2)
years following the termination hereof, he shall not solicit,
encourage or otherwise participate in any effort or attempt to
influence any of the then employees or agents to terminate
their affiliation or other relationship with the Company; and
Provided always that the restrictions set out in Clause 6(ii)
and the provisions of this clause following that sub-clause
shall not apply if the Company shall fail to pay the Employee
any sums due hereunder for more than 30 days and the Employee
confirms that he shall not in anyway delay or prevent the
Company from paying sums due to him
The Employee acknowledges that the scope of the restrictions
set forth in this Section 6 is reasonably required to protect
the Company's business interests for which the Employee is
being compensated under this Agreement, and if any such
restriction is nevertheless determined to be too broad for
enforcement in accordance with its terms, the Employee agrees
that such restriction shall be enforced to the maximum extent
permitted by law.
7. Vacation/Sick Days. During each year of the term of this Agreement,
Employee shall be entitled to 28 days vacation and the Company's
customary sick leave.
8. Indemnification. In the event Employee is, or was a party, or is
threatened to be made a party to any threatened, pending or completed
action, suit, or proceeding by reason of the fact he is or was an
officer, director, agent or employee of the company he shall be
indemnified by the Company to the maximum extent permitted by law not
inconsistent with the provisions of the Memorandum of Association and
Articles of Association of the Company. The right of indemnification
herein provided for shall not be deemed exclusive of any other rights
to which Employee may be entitled to as a matter of law or otherwise,
but shall be deemed to be in addition thereof.
9. Transferability. This Agreement is a contract for the Employee's
personal services and shall not be assigned, delegated or transferred
in whole or in part by Employee.
10. Successors and Assigns. This Agreement binds, inures to the benefit of,
and is enforceable by the successors and assigns of the parties, and
does not confer any rights on any other persons or entities.
11. Entire Agreement; Amendments. This Agreement contains the entire
agreement between the parties. No amendment or modification of this
Agreement shall be effective unless it is in writing and signed by both
parties. Any amendments shall be attached hereto and become a part of
this Agreement.
12. Severability. The provisions of this Agreement shall be severable and
if any provision shall be prohibited by law, invalid or unenforceable
in whole or in part for any reason, the remaining provisions shall
remain in full force and effect.
13. Governing Law. The validity, construction and performance of this
Agreement shall be governed by the substantive laws of the United
Kingdom as applied to agreements entered into and performed entirely
within such jurisdiction.
14. Counterparts. This Agreement may be executed in counterparts and by
facsimile, each of which shall be an original and all of which taken
together will constitute one instrument.
AS WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement, in a manner legally binding upon them at the date first above
written.
Simis Medical Imaging, Ltd.
By:
----------------------------------------
- --------------------------------------------
(Print Name and Title) on behalf of
SIMIS MEDICAL IMAGING LIMITED
and
- --------------------------------------------
CHRISTOPHER PETER ROWSON CUMMINS
