19, 20, 22, 23 AND 25 TO 31 INCLUSIVE WHICH WILL
CONTINUE IN FULL FORCE AND EFFECT.
11
3.3
THE VENDOR SHALL AS SOON AS REASONABLY
PRACTICABLE AND IN ANY EVENT BY 15 APRIL 2005 DESPATCH TO ITS SHAREHOLDERS THE
CIRCULAR (AND ANY RESOLUTION TO BE PUT TO THE SHAREHOLDERS OF THE VENDOR TO
APPROVE THIS AGREEMENT SHALL NOT BE COMBINED WITH ANY RESOLUTION TO APPROVE ANY
OTHER MATTER OR TRANSACTION), AND SHALL NOTIFY THE PURCHASER AS SOON AS
PRACTICABLE AFTER IT BECOMES AWARE THAT THE CONDITION IS SATISFIED OR HAS BECOME
OR IS LIKELY TO BECOME INCAPABLE OF BEING SATISFIED.
3.4
IF THIS AGREEMENT IS TERMINATED BECAUSE THE
CONDITION HAS NOT BEEN FULFILLED OR WAIVED BY 1 MAY 2005 THEN NO LATER THAN FIVE
BUSINESS DAYS FOLLOWING SUCH TERMINATION, THE VENDOR SHALL (I) PROVIDE WRITTEN
INSTRUCTION TO VOYAGEUR ASSET MANAGEMENT (MA) INC RELEASING IT FROM ITS
OBLIGATIONS UNDER, AND TERMINATING, THE US ESCROW LETTER AND (II) PAY TO THE
PURCHASER THE AMOUNT OF £275,000 (TWO HUNDRED AND SEVENTY-FIVE THOUSAND POUNDS),
TOGETHER WITH ANY PROPERLY INCURRED COSTS OF ANY ACCOUNTANTS INSTRUCTED OR
ENGAGED BY THE PURCHASER INCURRED UP TO THE DATE OF SUCH TERMINATION IN
CONNECTION WITH THE PREPARATION OF THE US GAAP ACCOUNTS.
THE PARTIES AGREE THAT
SUCH AMOUNT REPRESENTS A GENUINE AND REASONABLE PRE-ESTIMATE OF THE LOSSES
(INCLUDING WITH RESPECT TO LEGAL FEES) THAT WILL BE INCURRED BY THE PURCHASER AS
A RESULT OF SUCH TERMINATION.
3.5
IN THE EVENT OF ANY PERSON SEEKING AN ORDER
("ORDER") WHICH MAY PREVENT COMPLETION OF THE SALE AND PURCHASE OF THE SHARES
PURSUANT TO THIS AGREEMENT, THE PURCHASER AGREES TO USE ALL REASONABLE
ENDEAVOURS TO OPPOSE AND/OR HAVE SET ASIDE SUCH ORDER AND SHALL KEEP THE VENDOR
INFORMED OF THE PROGRESS OF ANY PROCEEDINGS IN RELATION THERETO AND THE
LIKELIHOOD OF THE PURCHASER SUCCEEDING AND THE PURCHASER SHALL, IF REQUIRED, USE
ALL REASONABLE ENDEAVOURS TO SEEK THE APPROVAL OF ITS SHAREHOLDERS TO THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT UNLESS, IT IS NOT REASONABLY
PRACTICABLE TO DO SO DUE TO LEGAL OR REGULATORY REQUIREMENTS.
4.
EBITA
4.1
BETWEEN THE DATE OF THIS AGREEMENT AND
COMPLETION, THE VENDOR SHALL AS SOON AS REASONABLY PRACTICABLE PREPARE AND
DELIVER TO THE PURCHASER:
4.1.1
AUDITED STATUTORY ACCOUNTS FOR EACH OF THE
COMPANIES AND SUBSIDIARIES FOR THE YEAR ENDING 31 DECEMBER 2004 (TOGETHER THE
"STATUTORY ACCOUNTS"); AND
4.1.2
A STATEMENT OF THE 2004 EBITA (THE "EBITA
STATEMENT").
4.2
THE STATUTORY ACCOUNTS SHALL BE PREPARED ON
A BASIS CONSISTENT WITH THE ACCOUNTS USING THE SAME ACCOUNTING PRINCIPLES,
POLICIES AND PRACTICES, AND IN ACCORDANCE WITH THE LAW AND APPLICABLE STANDARDS,
PRINCIPLES AND PRACTICES GENERALLY ACCEPTED IN THE UNITED KINGDOM.
4.3
THE PURCHASER MAY, BY NOTICE IN WRITING TO
THE VENDOR GIVEN AT ANY TIME WITHIN THREE BUSINESS DAYS AFTER DELIVERY BY THE
VENDOR TO THE PURCHASER OF THE EBITA STATEMENT OR, (IF REQUESTED BY THE
PURCHASER PURSUANT TO CLAUSE 4.4) A CERTIFIED EBITA STATEMENT, TERMINATE THIS
AGREEMENT IF THE 2004 EBITA AS SET OUT IN THE EBITA STATEMENT