EXHIBIT 2.1
19 MARCH 2002
AGREEMENT
FOR THE SALE AND PURCHASE OF SHARES IN
DRAEFERN HOLDINGS LIMITED AND
RIGHT4STAFF LIMITED
BETWEEN
AHL EUROPE LIMITED
AS SELLER
AHL SERVICES, INC
AS GUARANTOR
AND
EPOCH 2 LIMITED
AS BUYER
WEIL, GOTSHAL & ▇▇▇▇▇▇
ONE ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
020 7903 1000
▇▇▇.▇▇▇▇.▇▇▇
TABLE OF CONTENTS
PAGE
1 INTERPRETATION..................................................................................... 3
2 SALE AND PURCHASE.................................................................................. 10
3 CONSIDERATION...................................................................................... 10
4 COMPLETION......................................................................................... 11
5 SELLER RECEIVABLE.................................................................................. 13
6 WARRANTIES......................................................................................... 13
7 LIMITATIONS ON CLAIMS.............................................................................. 14
8 NOTICE OF AND CONDUCT OF CLAIMS.................................................................... 15
9 BUYER WARRANTIES................................................................................... 16
10 POST-COMPLETION RESTRICTIONS ON THE SELLER'S BUSINESS ACTIVITIES................................... 16
11 INDEMNITIES AND PROPERTY MATTERS................................................................... 18
12 ANNOUNCEMENTS...................................................................................... 21
13 ASSIGNMENT......................................................................................... 21
14 RIGHTS OF THIRD PARTIES............................................................................ 22
15 GUARANTEE.......................................................................................... 22
16 VARIATION.......................................................................................... 23
17 WAIVER............................................................................................. 23
18 WHOLE AGREEMENT AND BUYER'S REMEDIES............................................................... 23
19 EFFECT OF COMPLETION............................................................................... 24
20 COSTS.............................................................................................. 24
21 COUNTERPARTS....................................................................................... 24
22 NOTICES............................................................................................ 24
23 GOVERNING LAW...................................................................................... 25
24 JURISDICTION....................................................................................... 25
SCHEDULE 1 INFORMATION ABOUT THE COMPANIES AND THE SUBSIDIARIES............................................. 26
Part A The Companies...................................................................................... 26
Part B The Subsidiaries................................................................................... 28
SCHEDULE 2 ADDITIONAL LIMITATIONS ON THE SELLER'S LIABILITY................................................. 32
SCHEDULE 3 WARRANTIES....................................................................................... 34
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SCHEDULE 4 TAX WARRANTIES................................................................................... 47
SCHEDULE 5 REAL PROPERTY.................................................................................... 51
Part A The Properties....................................................................................... 51
Part B The Lettings......................................................................................... 64
SCHEDULE 6 MATERIAL CONTRACTS............................................................................... 65
SCHEDULE 7 EMPLOYMENT DISPUTES.............................................................................. 65
ii
THIS AGREEMENT is made on 19 March 2002 between the following parties:
(1) AHL EUROPE LIMITED, a company incorporated in England and Wales
(registered number 3804405) whose registered office is at ▇▇▇▇ ▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Road, ▇▇▇▇▇▇ End, Buckinghamshire, SL8 5AU (the
"SELLER");
(2) AHL SERVICES, INC, a Georgia corporation whose registered office is at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"GUARANTOR"); and
(3) EPOCH 2 LIMITED, a company incorporated in England and Wales
(registered number 4349174), whose registered office is at ▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ (the "BUYER").
RECITALS
(A) Draefern Holdings Limited ("DHL") and Right4Staff Limited
("RIGHT4STAFF") (each a "COMPANY" and together the "COMPANIES") are
private limited companies incorporated in England and Wales.
Particulars of the Companies and their subsidiaries are set out in
Schedule 1.
(B) The Seller is the legal owner of all the issued share capital of the
Companies.
(C) The Seller has agreed to sell and the Buyer has agreed to buy, the
Shares (as defined below) for the consideration and upon the terms and
subject to the conditions set out in this Agreement.
(D) The Guarantor has agreed, in consideration of the Buyer entering into
this Agreement, to guarantee the obligations of the Seller under this
Agreement in accordance with the terms set out in Clause 15.
IT IS AGREED as follows:
1 INTERPRETATION
1.1 In this Agreement, the following expressions have the following
meanings:
"ACCOUNTS" means the audited accounts of the Companies
and each Group Company for the twelve month
period ended on the Accounts Date comprising
in each case a balance sheet, a profit and
loss account, notes and directors' and
auditors' reports;
"ACCOUNTS DATE" means 31 December 2000;
"AHL SERVICES GROUP
REPORTING PACK means the 12 month group reporting package
for DHL, Right4Staff, TWSL, ERRC and the
Subsidiaries, comprising an income statement
and balance sheet drawn up under US GAAP and
under the Guarantor's accounting policies
for the purpose of consolidation into the
Guarantor's group results;
3
"AHL SERVICES GROUP
REPORTING PACK DATE" means 30 December 2001;
"BOURNE END AGREEMENT" means the agreed form agreement for
assignment to be entered into between
Right4Staff, the Guarantor and the Seller
for the assignment to the Seller of a lease
dated 19 March 2002 of ▇▇▇▇ ▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇;
"BUSINESSES" means the staffing and recruitment
businesses carried on by each Group Company
at Completion;
"BUSINESS DAY" means any day other than a Saturday or
Sunday on which banks are normally open for
general business in London and New York;
"BUYER'S ACCOUNTANTS" means KPMG;
"BUYER'S GROUP" means the Buyer, its holding company Epoch 1
Limited and any subsidiary of the Buyer;
"BUYER'S SOLICITORS" means Macfarlanes, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"CLAIM" means a claim by the Buyer for a breach of
Warranty;
"COMPANY" and "COMPANIES" bear the meaning ascribed to them in
Recital A;
"COMPANIES ACT" means the Companies ▇▇▇ ▇▇▇▇ (as amended by
the Companies Act 1989);
"COMPANY PERSONNEL" means any persons engaged by the Company or
any Group Company under a contract or terms
of engagement whether temporary or permanent
or other arrangements to do work for or on
behalf of any other person, company or
organisation whether the relationship
between such person and the Company or any
Group Company is not one of employment;
"COMPETING BUSINESS" means any business which is the same as or
directly competitive with the Business;
"COMPLETION" means completion of the sale and purchase of
the Shares in accordance with Clause 4 of
this Agreement;
"COMPLETION DATE" means the date of Completion in accordance
with Clause 4.1;
4
"COMPUTER SYSTEM" means the software used by the Companies in
the Businesses in the year ending on the
Completion Date;
"CONFIDENTIAL INFORMATION" means all information not publicly known
(other than by reason of a breach of any
confidentiality undertaking in relation to
the Businesses or any obligations under this
Agreement) which is used in or relating to
the business, customers and affairs of the
Businesses including without limitation
details of and information relating to (i)
all formulas, designs, specifications,
drawings, data, manuals and instructions;
(ii) all customer lists and details; (iii)
all commercial relationships and project
negotiations; (iv) all marketing and sales
materials and information; (v) all business
plans and forecasts; (vi) all technical or
other expertise; (vii) all computer
software; (viii) all accounting and tax
records; and (ix) all correspondence, orders
and enquiries;
"CONSIDERATION" means the consideration payable for the
Shares as set out in Clause 3;
"DHL AGREEMENT" means the share purchase agreement dated 26
July 1999 relating to the ADI Group
Limited's acquisition of Draefern Holdings
Limited;
"DATA ROOM" means the data room at the Seller's
Solicitors which prior to the signature of
this Agreement contained information and
documents relating to the Group and/or the
Businesses;
"DHL SHARES" means the 50,000 ordinary shares of (pound)1
each of DHL, comprising the whole of the
allotted and issued share capital of DHL;
"DISCLOSURE LETTER" means the letter dated the date of this
Agreement from the Seller to the Buyer for
the purpose of making disclosures against
the Warranties in accordance with Clause
6.3;
"ENCUMBRANCE" means a mortgage, charge, pledge, lien,
option, restriction, third party right or
interest, other encumbrance or security
interest of any kind;
"ERRC SHARES" means the 1,500 "A" ordinary shares of
(pound)1 each and the 30 "B" ordinary shares
of (pound)1 each of ERRC, comprising the
whole of the allotted issued share capital
of ERRC;
"ESCROW ACCOUNT" means an account in the joint names of the
Seller's Solicitors and the Buyer's
Solicitors at
5
the Royal Bank of Scotland formed for the
purposes of the Escrow Agreement;
"ESCROW AGREEMENT" means the escrow agreement between the Buyer
and the Seller in the agreed form;
"ESCROW AMOUNT" means(pound)700,000;
"EXCEL AGREEMENT" means the share purchase agreement
(incorporating a tax deed between
the said parties) dated 30 June 1999
relating to the acquisition of Excel
Resourcing (Recruitment Consultants) Limited
between Right Associates Employment Limited
and ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇;
"FIRST UNION" means First ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America;
"FIRST UNION CREDIT
AGREEMENT" means the second amended and restated credit
agreement dated 15 October 1999 (as amended)
entered into by First Union as
administrative agent and security trustee,
certain lenders from time to time party
thereto and AHL Services, Inc. and certain
of its subsidiaries;
"GROUP" means the Companies and each Subsidiary;
"GROUP COMPANIES" means the Companies and the Subsidiaries
each a "GROUP COMPANY";
"HOLDING COMPANY" and
"SUBSIDIARY" mean holding company and subsidiary
respectively as defined in sections 736 and
736A of the Companies Act;
"INFORMATION MEMORANDUM" means the UK staffing business information
memorandum dated January 2002 prepared by
the Seller relating to the Group and/or the
Business;
"INTELLECTUAL PROPERTY" means all rights in inventions, patents,
copyrights, database rights, design rights,
trade marks and trade names, service marks,
trade secrets, know-how and other
intellectual property rights (whether
registered or unregistered) and all
applications for any of them, anywhere in
the world;
"INTELLECTUAL PROPERTY
RIGHTS" means all Intellectual Property owned by any
Group Company;
"LICENCE" means a licence, permit, consent,
certification, notification, registration or
other authorisation,
6
used by, granted to, or required by any
Group Company in connection with the
carrying on of its Business;
"MANAGEMENT" means ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇'▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇;
"MANAGEMENT ACCOUNTS" means the unaudited profit and loss account
of the Businesses for the period starting on
the AHL Services Group Reporting Pack Date
and ending on the Management Accounts Date a
copy of which is annexed to the Disclosure
Letter;
"MANAGEMENT ACCOUNTS DATE" means 28 February 2002;
"MATERIAL CONTRACTS" means contracts with those persons listed in
Schedule 6;
"PERSONAL PENSION SCHEMES" means the DHL Group Personal Pension Plan
with Standard Life, the Right4Staff Group
Personal Pension Plan with Friends Provident
and the Jobspot Group Personal Pension Plan
with Sun Life;
"PROPERTY" means each of the leasehold properties
listed in Schedule 5 and together the
"PROPERTIES";
"R4S DEBT" means the net amount of (pound)1,047,991
payable to the Seller by Right4Staff at
Completion.
"▇▇▇▇ AGREEMENT" means the share purchase agreement dated 21
August 1998 relating to ADI Group Limited's
acquisition of Rights Associates Employment
Limited;
"▇▇▇▇ TAX DEED" means the tax deed dated 30 June 1999 and
made between ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ and
Right Associates Employment Limited;
"RELATED PARTY" means any holding company and subsidiary of
the Buyer and any subsidiary of such holding
company or advisers of the same and any
person who immediately following Completion
will become interested (within the same
meaning as in Section 208 of the Companies
Act) in the Shares;
"RIGHT4STAFF SHARES" means the 20,200 ordinary shares of (pound)1
each of Right4Staff comprising the whole of
the allotted and issued share capital of
Right4Staff;
"SELLER'S ACCOUNTANTS" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
7
"SELLER'S GROUP" means the Seller, or a company which is, on
or at any time after the date of this
Agreement, a subsidiary or holding company
of the Seller or a subsidiary of a holding
company of the Seller;
"SELLER RECEIVABLE" means the R4S Debt and the TWSL Debt;
"SELLER'S SOLICITORS" means Weil, Gotshal & ▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"SHARES" means the DHL Shares and the Right4Staff
Shares;
"STAKEHOLDER PLANS" means one or more stakeholder pension
schemes as construed in accordance with
section 1 of the Welfare Reform and Pensions
▇▇▇ ▇▇▇▇ which have been designated by a
Group Company as the designated scheme in
relation to the employees of the Group
Company for the purposes of section 3(2) of
the Welfare Reform and Pensions ▇▇▇ ▇▇▇▇.
"SUBSIDIARY" means a subsidiary of the Companies, as
listed in Part B of Schedule 1, and
"SUBSIDIARIES" means all such subsidiaries;
"TAX" and "TAXATION" have the meaning given in the Tax Deed;
"TAX AUTHORITY" and
"TAXATION AUTHORITY" have the meaning given in the Tax Deed;
"TAX DEED" means the deed relating to Tax in the agreed
form to be entered into by the Seller and
the Buyer;
"TAX WARRANTIES" means the statements set out in Schedule 4;
"TAXES ACT 1988" means the Income and Corporation ▇▇▇▇▇ ▇▇▇
▇▇▇▇;
"TCGA 1992" means the Taxation of Chargeable Gains ▇▇▇
▇▇▇▇;
"TWSL AGREEMENT" means the share purchase agreement
(incorporating a tax deed) dated 1 October
1999 relating to Rights Associates
Employment Limited's acquisition of Total
Work Services Limited;
"TWSL DEBT" means the amount of(pound)1,317,559 payable
by Total Work Services Limited to the Seller
at Completion;
8
"TWSL SHARES" means the 5,000 "A" ordinary shares of
(pound)1 each and the 5,000 "B" ordinary
shares of (pound)1 each of TWSL comprising
the whole of the allotted and issued share
capital of TWSL;
"TWSL TAX DEED" means the tax deed dated 1 October 1999 and
relating to Rights Associates Employment
Limited's acquisition of Total Work Services
Limited;
"UNDISCLOSED PROPERTIES" means the Properties briefly known as:-
(i) Second Floor, Maid ▇▇▇▇▇▇ Way,
Nottingham; and
(ii) ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
"UK GAAP" means the generally accepted accounting
principles currently adopted in the UK;
"VAT" means value added tax as provided for in the
VATA and any other tax of a similar nature;
"VATA" means the Value Added Tax ▇▇▇ ▇▇▇▇; and
"WARRANTY" means a statement set out in Schedule 3 or 4
and "WARRANTIES" means all such statements.
1.2 In this Agreement:
1.2.1 references to a "PERSON" include an individual, body corporate
(wherever incorporated), unincorporated association, trust or
partnership (whether or not having separate legal
personality), government, state or agency of a state, or two
or more of the foregoing;
1.2.2 references to a document in the "AGREED FORM" are to that
document in the form agreed to and initialled for the purposes
of identification by or on behalf of the parties;
1.2.3 references to a Clause or Schedule are to a Clause or Schedule
of this Agreement, and references to this Agreement include
the Schedules;
1.2.4 the headings in this Agreement do not affect its construction
or interpretation;
1.2.5 references to a statute or a statutory provision are to
include references to such statute or provision as amended or
re-enacted whether before or after the date of this Agreement
and include all subordinate legislation made under the
relevant statute whether before or after the date of this
Agreement save where that amendment or re-enactment would
extend or increase the liability on any party under this
Agreement;
1.2.6 a reference to a document is a reference to that document as
amended or modified from time to time in writing by the mutual
consent of the parties;
9
1.2.7 a person shall be deemed to be connected with another if that
person is connected with another within the meaning of section
839 of the Taxes Act;
1.2.8 references to writing shall be deemed to include any modes of
reproducing words in a legible or non-transitory form;
1.2.9 the singular includes the plural and vice versa and any gender
includes any other gender.
2 SALE AND PURCHASE
2.1 The Seller shall sell with full title guarantee and free from any
Encumbrance and the Buyer shall buy the Shares, with all rights
attaching to the Shares as at or after the date of this Agreement.
2.2 The Seller waives and agrees to procure the waiver of any restrictions
on transfer (including pre-emption rights) which may exist in relation
to the Shares under the articles of association of the Companies or
otherwise.
2.3 The Buyer shall not be obliged to complete the purchase of the Shares
unless the sale of all the Shares is completed simultaneously.
3 CONSIDERATION
3.1 The total consideration for the purchase of the Shares shall be the sum
of(pound)18,205,450 which shall be apportioned as follows:
3.1.1 (pound) 13,455,450 in respect of the DHL Shares (subject to
adjustment as provided in Clauses 3.3 and 3.4); and
3.1.2 (pound) 4,750,000 in respect of the Right4Staff Shares
(subject to adjustment as provided in Clauses 3.3 and 3.4),
which shall be payable by the Buyer to the Seller at Completion in
accordance with Clauses 4.1 and 4.5.
3.2 Within 2 Business Days of Completion, the Buyer shall obtain and
deliver to the Seller bank statements for all Group Companies to show
the updated aggregate cleared cash balance of each Group Company at
close of business on the Completion Date, without adjustment for
cheques drawn or deposited on or prior to the Completion Date which
have not been honoured or cleared on or before the Completion Date.
3.3 To the extent that the bank statements produced in accordance with
Clause 3.2 show a positive aggregate cash balance, the Consideration
shall be increased by an amount equal to the amount of such balance and
the Buyer shall immediately pay such amount to the Seller.
3.4 To the extent that the bank statements produced in accordance with
Clause 3.2 show a negative aggregate cash balance, the Consideration
shall be reduced by an amount equal to the amount of such balance and
the Seller shall pay such amount to the Buyer on the Business Day
following its receipt of the bank statements produced in accordance
with Clause 3.2.
10
3.5 Any payment under Clause 3.2 and 3.3 shall be apportioned to the DHL
Shares and the Right4Staff Shares in proportions to be agreed between
the Buyer and the Seller or, failing such agreement within thirty days
of such payment, in the proportions in which payment was made for such
shares in accordance with Clause 3.1.
3.6 If a party fails to pay a sum due by it under this Clause 3 on the due
date of payment in accordance with the provisions of this Agreement,
the party shall pay interest on the sum from the due date until the
date on which the party's obligation to pay the sum is discharged at a
rate of 2 per cent. per annum (whether before or after judgment) above
the Barclays Bank PLC base rate from time to time. Interest accrues
pursuant to this Clause 3.6 and is payable from day to day and on the
basis of a year of 365 days.
3.7 A payment made under this Clause 3 shall be made by telegraphic
transfer in pounds sterling ((pound)) to an account notified by the
party due to receive the payment to the other party not later than
three Business Days before the date of the payment.
4 COMPLETION
4.1 Completion shall take place at the office of the Buyer's Solicitors on
the date of this Agreement or such other date and place as the parties
may agree in writing.
4.2 At Completion, the Seller shall sell the Shares to the Buyer and the
Buyer will pay the Consideration to the Seller less the Escrow Amount
which will be paid into the Escrow Account and held in accordance with
the Escrow Agreement.
4.3 At Completion, the Seller shall deliver or procure the delivery to the
Buyer or the Buyer's Solicitors of the following:
4.3.1 duly executed transfer(s) of the Shares to the Buyer or the
Buyer's nominee(s) and the relevant share certificate(s) (or
an indemnity in the agreed form);
4.3.2 the certificate of incorporation (including any certificate on
change of name), of each Group Company, each register minute
and other book required to be kept by such Group Company
pursuant to the Companies Act, complete up to (but not
including) Completion, and the common seal (if any) of each
Group Company;
4.3.3 share certificates for all issued shares in the capital of the
Subsidiaries (or an indemnity in the agreed form);
4.3.4 a copy of a release in the agreed form from First Union of the
First Group Companies from all liabilities under the First
Union Credit Agreement and of all or any charges over the
Shares granted to First Union pursuant to the terms of the
First Union Credit Agreement, such release being conditional
only upon the receipt by First Union (with value as of the
Completion Date) of funds sufficient to satisfy the
indebtedness outstanding under the First Union Credit
Agreement;
4.3.5 evidence that, apart from the Seller Receivable, debts and
accounts between, on the one hand, each of the Group Companies
and, on the other, any other member of the Sellers' Group have
either been fully paid and settled or waived and that there
are no outstanding agreements or arrangements under which any
11
of the Group Companies have or would have any obligation to
any other member of the Seller's Group;
4.3.6 resignation letters in the agreed form signed by each director
and the secretary of each of the Group Companies (other than
▇▇▇ ▇▇▇▇▇▇▇▇) acknowledging that each has no claim against the
relevant Group Company in respect of breach of contract,
compensation for loss of office, redundancy or unfair
dismissal or on any other grounds whatsoever;
4.3.7 a copy of a letter of resignation in the agreed form from the
auditors of each of the Group Companies containing a statement
pursuant to section 394(1) of the Companies Act that there are
no circumstances connected with their ceasing to hold office
which they consider should be brought to the attention of any
members or creditors;
4.3.8 a legal opinion of King & Spalding in the agreed form in
respect of the capacity of the Guarantor to enter into this
Agreement, the Tax Deed and the Bourne End Agreement;
4.3.9 a counterpart of the Tax Deed duly executed by the Seller and
the Guarantor;
4.3.10 a copy of an extract from the board minutes of a meeting of
the Guarantor's board of directors authorising the execution
by each person executing a document on the Guarantor's behalf,
and the performance by the Guarantor of this Agreement;
4.3.11 the Bourne End Agreement duly executed by the Seller, the
Guarantor and Right4Staff;
4.3.12 insofar as they are not in the possession of or being held to
the order of a Group Company or have otherwise been disclosed
in the Disclosure Letter as being missing or otherwise
unavailable, the documents of title to the Properties; and
4.3.13 the Escrow Agreement duly executed by the Seller.
4.4 At Completion, the Seller shall procure that the directors of the Group
Companies shall hold a board meeting at which:
4.4.1 the transfer of the Shares (subject to stamping) to the Buyer
or its nominee(s) be approved for registration in the relevant
Company books;
4.4.2 such persons as the Buyer nominates be appointed as directors,
secretary and auditors of the Group Companies with effect from
the Completion Date;
4.4.3 the resignations of the directors and secretary referred to in
4.3.6 be tendered and accepted so as to take effect at the end
of the meeting; and
4.4.4 the registered offices and accounting reference dates of each
of the Group Companies be changed as directed by the Buyer.
4.5 At Completion, the Buyer shall:
12
4.5.1 pay the Consideration for the Shares (less the Escrow Amount)
by way of telegraphic transfer of funds to such account(s) as
the Seller shall have specified in writing to the Buyer;
4.5.2 pay the Escrow Amount to the Seller's Solicitors;
4.5.3 deliver or procure the delivery to the Seller of a copy of a
resolution of the Buyer's board of directors, in either case
certified by a director or the secretary of the Buyer,
authorising the execution by each person executing a document
on the Buyer's behalf, and the performance by the Buyer of
this Agreement, and all documents ancillary to it and in
agreed form;
4.5.4 deliver or procure the delivery to the Seller of a counterpart
of the Tax Deed duly executed by the Buyer; and
4.5.5 deliver or procure the delivery to the Seller of a counterpart
of the Escrow Agreement duly executed by the Buyer.
4.6 Neither the Seller nor the Buyer shall be obliged to complete this
Agreement until each of them has complied in all material respects with
the requirements of this Clause 4.
4.7 If the requirements of this Clause 4 are not complied with on the
Completion Date, the Seller may, without prejudice to any other rights
or remedies which it may have:
4.7.1 defer Completion to a date not more than 20 Business Days
after that date, (in which case this Clause shall apply to
Completion as so deferred); or
4.7.2 terminate this Agreement without any liability to the Buyer.
5 SELLER RECEIVABLE
Immediately after Completion (and in any event on the Completion Date)
the Buyer shall procure the payment in full by R4S and TWSL of the
Seller Receivable by way of telegraphic transfer to the account of the
Seller specified for the purposes of Clause 4.5.1.
6 WARRANTIES
6.1 The Seller warrants to the Buyer, in the terms of the Warranties,
that each Warranty is true and accurate at the date of this Agreement.
6.2 The Buyer acknowledges that it has not been induced to enter into this
Agreement by any representation or warranty other than the Warranties.
6.3 The Warranties (save for those set out in paragraphs 2, 3 and 4 of
Schedule 3) are qualified by matters fairly disclosed in the
Disclosure Letter.
6.4 Where a Warranty is qualified by the expression "to the best of the
knowledge, information and belief of the Seller" or "so far as the
Seller is aware", or any similar expression that reference shall mean
the actual knowledge of the Seller having made reasonable enquiries
of the Management (but without having made any further enquiry of any
other person). For the avoidance of doubt, for the purposes of this
Clause, (i) for any Warranty relating solely to DHL, its subsidiaries
and business "MANAGEMENT" shall be deemed to be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇'▇▇▇▇▇ only and for any Warranty
relating solely to Right4Staff, its subsidiaries and business
13
"MANAGEMENT" shall be deemed to be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ only; and (ii) actual
knowledge shall include all matters notified by the Seller's
Accountants to the Seller.
6.5 Each of the Warranties shall be construed as a separate and independent
warranty and (except where this Agreement provides otherwise) shall not
be limited or restricted in its scope by reference to or inference from
any other term of another Warranty or this Agreement.
6.6 The Seller undertakes (in the event that a Claim is made against it)
not to make a claim against any Group Company or any employee, officer
or director of any Group Company (including any such employee, officer
or director as at the date of this Agreement who subsequently ceases to
be so employed or to so act) on whom the Seller may have relied in
negotiating this Agreement or in preparing the Disclosure Letter save
in the case of fraud by such Group Company or person.
7 LIMITATIONS ON CLAIMS
7.1 Notwithstanding anything in this Agreement to the contrary, the
provisions of this Clause 7 and Schedule 2 shall operate to limit the
liability of the Seller in respect of any Claim by the Buyer or any
claim by the Buyer for breach of the provisions of this Agreement or
the Tax Deed.
7.2 The aggregate liability of the Seller for all Claims or any claim by
the Buyer for breach of the provisions of this Agreement or the Tax
Deed shall not exceed the Consideration.
7.3 Save in the event of fraud or wilful non-disclosure on the part of the
Seller or any of its officers, directors or employees, the Seller shall
not be liable:
7.3.1 for any Claim unless the aggregate amount of such claim and
any other Claims shall exceed (pound)300,000 (the "THRESHOLD")
in which event the liability of the Seller (subject to the
other provisions of this Clause 7 and Schedule 2 and for the
avoidance of doubt any amounts paid to the Buyer pursuant to
the Tax Deed shall be disregarded for the purpose of
determining whether any Claims exceed the Threshold) shall be
limited to the amount by which the liability exceeds
(pound)150,000;
7.3.2 for any Claim unless the amount of any individual Claim
exceeds (pound)20,000. For the avoidance of doubt, amounts for
which the Seller has no liability as a consequence of the
operation of this Clause, shall not be capable of constituting
a Claim or increasing the amount of such claim for the purpose
of this Clause;
7.3.3 for any Claim unless the Buyer notifies the Seller in writing
in reasonable detail of the Claim (specifying in writing and
insofar as the Buyer's awareness at the time of writing allows
it to do so, all material details of the alleged breach or
other event to which such Claim shall relate and the Buyer's
bona fide estimate of the amount thereof) as soon as
reasonably practicable after a Claim has arisen and in any
event not later than:
(A) seven years from Completion Date in the case of a
Claim for breach of any of the Tax Warranties or
under the Tax Deed; and
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(B) 18 months from Completion in respect of any other
Claim;
7.3.4 for any Claim which is:
(A) not satisfied, settled or withdrawn within six months
of the date of notification of such Claim under
Clause 7.3.3;
(B) contingent,
unless proceedings in respect of it have been commenced by
being both issued and served on the Seller.
7.4 The limitations set out and referred to in Clauses 7.2 and 7.3 do not
apply to a breach of Warranty resulting from fraud or wilful
non-disclosure or to a breach of any of those Warranties contained in
paragraphs 2-4 (inclusive) of Schedule 3.
8 NOTICE OF AND CONDUCT OF CLAIMS
8.1 If the Buyer and/or a Group Company are at any time entitled (whether
by reason of a right to take legal action, an insurance or payment
discount or otherwise) to recover from some other person any sum in
respect of any matter giving rise to a Claim (whether before or after
the Seller has made a payment hereunder) (a "THIRD PARTY CLAIM"), the
Buyer shall (subject to the Buyer or, as appropriate, the relevant
Group Company being fully indemnified to its reasonable satisfaction by
the Seller against all out-of-pocket costs and expenses reasonably
incurred by the Buyer or the relevant Group Company and provided that
the Buyer shall not be required to take any action where, in the
Buyer's reasonable opinion, to do so would prejudice the commercial
interests of the Businesses):
8.1.1 as soon reasonably practicable, notify the Seller in writing
stating in reasonable detail the nature of the matter on a
without prejudice basis, if practicable, the amount claimed,
and the relevant Warranty or Warranties which the Buyer
alleges have been or may have been breached and the Buyer
shall provide such information as the Seller may reasonably
require relating to such right of recovery and the steps taken
or to be taken by the Buyer or the relevant Group Company in
connection with it;
8.1.2 if so required by the Seller take, or procure that the Group
Company takes, all reasonable steps (whether by way of a claim
against its insurers or otherwise including but without
limitation legal proceedings) as the Seller may reasonably
require to enforce such recovery;
8.1.3 not admit liability in respect of the Third Party Claim, nor
compromise, nor settle any proceedings in defence of a Third
Party Claim, without the written consent of the Seller (such
consent not to be unreasonably withheld or delayed);
8.1.4 keep the Seller reasonably informed of the progress of any
action taken;
8.1.5 make available to accountants and other professional advisers
appointed by the Seller such reasonable access to the
personnel of the Companies and to any relevant records and
information as the Seller reasonably requests in connection
with such Claim or Third Party Claim save where to do so would
15
breach or endanger the Buyer's or any Group Company's legal
privilege in any accounts, documents or records; and
8.1.6 use all reasonable endeavours to procure that the current
auditors of the Companies make available their audit working
papers in respect of audits of the Companies accounts for any
relevant accounting period in connection with such Third Party
Claim;
provided that (to the extent that recovery has not previously been
received from the Seller) any claim against the Seller shall be limited
(in addition to the limitations on the liability of the Seller referred
to in this Clause 9 and Schedule 2) to the amount by which the loss or
damage suffered by the Buyer as a result of the matter giving rise to
the Third Party Claim shall exceed the amount so recovered.
8.2 References in Clause 8.1 to a Claim shall be deemed to include a claim
made under the indemnity in Clause 11.2.
8.3 Clause 7 of the Tax Deed shall apply in respect of the Tax Warranties
as they apply to the Tax Deed.
9 BUYER WARRANTIES
9.1 The Buyer warrants to the Seller that:
9.1.1 the Buyer is duly incorporated and validly existing under the
laws of England;
9.1.2 the Buyer has power to enter into this Agreement and to
perform the obligations expressed to be assumed by it (which
shall constitute lawful, valid and binding obligations of the
Buyer) and has taken all necessary corporate action to
authorise the execution, delivery and performance of this
Agreement;
9.1.3 this Agreement has been duly executed by the Buyer;
9.1.4 the execution, delivery and performance of the terms of this
Agreement by the Buyer will not violate any provision of:
(A) any law or regulation or any order or decree of any
authority, agency or court binding on the Buyer;
(B) the Memorandum or Articles of Association of the
Buyer;
(C) any loan stock, bond, debenture or other deed,
mortgage, contract or other undertaking or instrument
to which the Buyer is a party;
9.1.5 in acquiring the Shares the Buyer is acting as principal
and not as agent or broker for any other person; and
9.1.6 the Buyer is not aware that it has any Claim for which,
taking into account limitations in Clause 7 and Schedule 2,
the Seller could have a liability to pay, and for the purposes
of this Clause 9.1.6 the Buyer's knowledge or awareness
shall mean the actual knowledge or awareness of ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
16
10 POST-COMPLETION RESTRICTIONS ON THE SELLER'S BUSINESS ACTIVITIES
10.1 The Seller covenants with the Buyer and each Group Company that it
shall not, and shall procure that each member of the Seller's Group
shall not, either alone or in conjunction with or on behalf of any
other person, do any of the following activities without the written
consent of the Buyer:
10.1.1 during the period of 2 years after the Completion Date carry
on or be engaged by or be interested in any Competing Business
in the United Kingdom;
10.1.2 at any time after the Completion Date use for any purposes any
company name, trade or business name or distinctive ▇▇▇▇,
style or logo used by the Company or a Group Company at any
time during the 2 years up to and including Completion or
anything intended or likely to be confused by it; or
10.1.3 during the period of 12 months after the Completion Date
solicit, entice away from or attempt to solicit or entice away
from or discourage from being employed by the Group any person
employed by the Group at any time before the Completion Date
in a senior managerial capacity (whether or not such person
would commit any breach of his contract of employment or
engagement by reason of leaving the service of such company).
10.1.4 during the period of 12 months after the Completion Date
solicit business within the United Kingdom from any customer
of any Group Company in competition with the Businesses;
10.1.5 during the period of 12 months after the Completion Date
interfere adversely with or seek to interfere adversely with,
within the United Kingdom, contractual or other trade
relations between any Group Company and any of their
respective customers who were customers of a Group Company at
any time during the 12 months up to and including Completion;
10.1.6 during the period of 12 months after the Completion Date
interfere adversely with or seek to interfere adversely with
within the United Kingdom contractual or other trade relations
between any Group Company and any of its or their respective
suppliers who were suppliers of a Group Company at any time
during the 12 months up to and including Completion;
10.1.7 for the period of 2 years following the Completion Date, save
as required by applicable law or regulation, it will:
(A) not communicate or divulge to any person; and/or
(B) not make use or permit the use of; and/or
(C) use its best endeavours to prevent the publication
disclosure or unauthorised use of,
any Confidential Information concerning the business, finances
or affairs of any Group Company or of any of their respective
customers or suppliers;
17
10.1.8 at any time after the Completion Date use or apply to register
on any public register any trade or business name used by any
Group Company during the period of two years preceding the
Completion Date (including in particular the names Right4Staff
and Draefern (whether alone or in connection with other
names)) or any name similar to those names or likely to be
confused with them.
10.2 Nothing in Clause 10.1 shall prevent the Seller from acquiring or
holding an interest in another business, part of which is in
competition with any Group Company provided that such part represents
no more than 15 per cent. in aggregate of any class of securities
listed or traded on a recognised investment exchange.
10.3 The Seller shall not (and shall procure that all members of the
Seller's Group shall not) use or disclose any Confidential Information,
other than as required by law or a regulatory body to which it is
subject, or disclosed to its employees, officers or advisers where such
use or disclosure is required for the proper performance of such
person's duties and such person agrees to keep such information
confidential.
10.4 Each of the restrictions in this Clause are considered by the parties
to be reasonable for the legitimate protection of the business and
goodwill of the Companies and each Group Company but each of them is
separate and severable and if a restriction in this Clause is held to
be illegal, invalid or unenforceable, in whole or in part, that
restriction shall be ineffective to the extent of such illegality,
invalidity or unenforceability without rendering illegal, invalid or
unenforceable the remaining restrictions which will continue to bind
the Seller.
11 INDEMNITIES AND PROPERTY MATTERS
11.1 The Seller undertakes to hold the Buyer and the Group Companies
indemnified and to keep them indemnified from and against all actions,
claims, proceedings, losses, damages, payments, costs, expenses or
liabilities incurred by any of them in relation to or arising in
relation to any guarantees or indemnities given by any Group Company in
relation to the liabilities or obligations of the Seller or any member
of the Seller's Group.
11.2 The Seller shall indemnify the Buyer on its own behalf and as agent for
any of the Group from and against all and any Employment Liabilities.
The Seller's liability under this Clause 11.2 shall not exceed
(pound)100,000. "EMPLOYMENT LIABILITIES", for the purposes of this
Clause 11.2 means any costs, claims, liabilities or expenses (including
legal fees) which the Buyer or any of the Group may suffer or incur
from time to time in relation to any amounts agreed or determined to be
paid to any Employee or any of the Company Personnel insofar as they
relate to the disputes set out in Schedule 7 whether in contract or in
tort or by way of remedy for redundancy or dismissal or sex or race
discrimination or other breach of statute (including, without
limitation, compensation pursuant to any provision of Part X and/or
Part XI of the Employment Rights Act 1996 and/or pursuant to any
provision of Chapter II of Part IV of the Trade Union and Labour
Relations (Consolidation) Act 1992) where either;
11.2.1 such Employee's employment or such member of the Company
Personnel's engagement has been terminated by the Seller or by
any of the Group prior to Completion; or
11.2.2 such Employee or such member of the Company Personnel has
received notice of termination from the Seller or any of the
Group prior to Completion; or
18
11.2.3 such Employee or such member of the Company Personnel has
instigated proceedings against the Seller either at the
Employment Tribunal or the County Court or otherwise prior to
Completion.
11.3 The Seller undertakes to hold the Buyer and the Group Companies
indemnified and to keep them indemnified from and against all actions,
claims, proceedings, losses, damages, payments, costs, expenses or
liabilities incurred by any of them in relation to or arising in
relation to (i) any claims made by ADI (UK) Limited in respect of an
invoice dated on or around 28 February 2001 from ADI (UK) Limited to
Right4Staff for an amount of approximately(pound)448,913 and (ii) any
VAT payable by any Group Company on the transfers to the Seller by
Draefern Limited and Draefern Holdings Limited of the freeholds of
Units A and B and the car park at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ prior to
Completion. The Buyer undertakes to procure that, as soon as reasonably
practicable after Completion, Draefern Limited and Draefern Holdings
Limited issue the Seller with VAT invoices for such transfers.
11.4 The Seller shall not be liable for any claim under clause 11.2 or 11.3
unless notice of such claim is given before the third or seventh
anniversaries, respectively, of this Agreement.
11.5 CONSTRUCTION WARRANTIES
In this Clause 11.5 the following definitions shall apply:
"CONSTRUCTION WARRANTY" means any warranty relating to the construction
or design of the Premises including, without limitation, warranties
issued to DHL and its subsidiary Draefern Limited or which DHL or
Draefern Limited is entitled to demand from the contractors,
sub-contractors, professional team and manufacturers; and "CONSTRUCTION
WARRANTIES" shall be construed accordingly; and
"PREMISES" means ▇▇▇▇ ▇, ▇▇▇▇ ▇ and land at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ registered at HM Land Registry under title numbers
DY298788, DY308654 and DY310374.
(A) At the request of the Seller or the Guarantor, the Buyer shall
procure that DHL and Draefern Limited shall:
(I) where the Construction Warranties have been entered
into, assign (to the extent that it is able) to the
Seller or, at the request of the Seller and/or the
Guarantor, a purchaser of the freehold of the
Premises, the Construction Warranties and all claims
and causes of action to which DHL or Draefern Limited
(as the case may be) may have against the warrantor
under a Construction Warranty.
(II) where the Construction Warranties have not been
issued and DHL or Draefern Limited is entitled to
demand a Construction Warranty whether under the
terms of a building contract, terms of engagement or
other contract, take all steps reasonably requested
by the Seller or Guarantor thereunder to procure that
a Construction Warranty is issued in favour of the
person nominated by the Seller and/or the Guarantor.
(B) The Seller shall indemnify the Buyer against all proper costs
of DHL and Draefern Limited in relation to the observation of
the provisions of this Clause 11.5 and the assignment or the
procurement of the Construction
19
Warranties and any liability on the part of any Group Company
pursuant to any building contract, terms of engagement or
other contract in relation to the construction or design of
the Premises.
11.6 NETCOM LIMITED LEASE
11.6.1 The Buyer shall use all reasonable endeavours to agree with
Netcom Limited a lease of part of the ground floor of ▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ substantially in the
form of the draft supplied to the Buyer's solicitors prior to
signature of this Agreement but incorporating a provision
excluding sections 24 to 28 (inclusive) of the Landlord and
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
11.6.2 The Buyer shall procure that Draefern Limited agrees to grant
a lease in the form contemplated by Clause 11.6.1 upon the
grant of a valid court order excluding sections 24 to 28
(inclusive) of the Landlord and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
11.6.3 It is accepted that the current occupation by Netcom Limited
will not be a breach of the alienation provisions of the lease
of Unit B ▇▇▇▇▇▇▇ Court to Draefern Limited dated 11 March
2002.
11.7 SOLENT BUSINESS PARK
11.7.1 Following Completion the Buyer and the Seller shall use all
reasonable endeavours to procure the completion of the Lease
(which for the purpose of this clause 11.7 shall be the
"Lease") pursuant to the agreement dated 8 June 2000 (as
varied by a supplemental agreement dated 6 November 2001)
between Montpellier Group plc (formerly YJL plc) (1),
Right4staff Limited (formerly Right Associates Employment
Limited) (2) and ADI Group Limited (3) (which for the purpose
of this Clause 11.7 shall be the "Agreement for Lease") in
accordance with the terms of the Agreement for Lease and the
Buyer shall not agree or allow to be agreed any amendments to
the form of the lease attached to the Agreement for Lease
without the consent of the Seller, such consent not to be
unreasonably withheld or delayed.
11.7.2 If the Lease shall not have been completed by 20 June 2002 the
Buyer and Seller shall seek the written opinion of ▇▇▇▇ ▇▇▇▇▇▇
QC or, if he is unavailable, ▇▇▇ ▇▇▇▇▇▇▇ QC (at the joint cost
of the Buyer and the Seller) upon the enforceability of the
Agreement for Lease or the right to determine the Agreement
for Lease. If the opinion shall state unequivocally that the
Agreement for Lease is unenforceable against the tenant and
guarantor or is capable of being terminated on notice by the
tenant the Buyer shall procure that notice is given to the
landlord pursuant to the Agreement for Lease to either
determine the Agreement for Lease or, as appropriate, confirm
that it is unenforceable.
11.7.3 If the opinion obtained pursuant to clause 11.7.2 is equivocal
the Buyer shall use all reasonable endeavours to persuade both
the landlord and any superior landlord to accept the Buyer as
a replacement guarantor of the Lease and (regardless of
whether the Buyer is accepted as a replacement guarantor) the
Buyer and the Seller shall continue to use all reasonable
endeavours to procure the completion of the Lease.
20
11.7.4 If the Lease shall be completed pursuant to either clause
11.7.1 or 11.7.3 the Buyer shall procure that the tenant gives
notice to determine the Lease at the earliest possible
opportunity in accordance with the provisions of the Lease and
shall copy any notice to determine the Lease to the Seller.
11.7.5 If the Lease shall be completed pursuant to clause 11.7.3 the
Buyer and the Seller shall (at the Seller's written request)
use all reasonable endeavours to persuade both the landlord
and any superior landlord to accept in substitution for the
guarantee given by AHL Europe Limited in the Lease a bank
guarantee to be provided by the tenant under the Lease with
the cost of any such guarantee (including any costs while it
is subsisting) being met by both the Seller and the Buyer in
equal shares.
11.7.6 The Buyer shall indemnify the Seller and keep the Seller
indemnified from and against all actions, claims, proceedings,
losses, damages, payments, costs, expenses or liabilities
incurred by AHL Europe Limited in relation to any guarantee
given by AHL Europe Limited for the liabilities or obligations
of the tenant pursuant to the Agreement for Lease and the
Lease.
12 ANNOUNCEMENTS
12.1 Subject to Clause 12.2 and 12.3, no announcement or public statement
concerning the existence, subject matter or any term of this Agreement
shall be made by or on behalf of any party without the prior written
approval of the other such approval not to be unreasonably withheld or
delayed.
12.2 This Clause shall not apply to any announcement or public statement by
any party required by law, or the rules of any regulatory or
governmental body to which such party is subject, including the rules
of any stock exchange on which any securities of the relevant party are
listed, in which case the party concerned shall make all reasonable
attempts to agree the contents of such announcement or statement with
the other party before it is made.
12.3 An announcement previously approved in accordance with Clause 11.1 may
be repeated by one of the parties without obtaining further prior
written approval provided that such announcement is still true and
accurate at the time of repetition and Alchemy Partners (Guernsey)
Limited may report the terms of this Agreement to participants in the
Alchemy Investment Plan.
13 ASSIGNMENT
13.1 Neither party shall be entitled to assign or transfer all or any of its
rights, benefits or obligations under this Agreement without the prior
written consent of the other party except that:
13.1.1 the Buyer may assign or transfer any of its rights under this
Agreement (including, without limitation, its rights under
Clause 6) and the Tax Deed to another member of the Buyer's
Group provided that the Buyer agrees to procure that such
assignee re-assigns or transfers such rights or obligations
back to the Buyer before ceasing to be a member of the Buyer's
Group; and
13.1.2 the Buyer may grant security over or assign by way of security
all or any of its rights under this Agreement, to a person
providing finance for the acquisition
21
of the Shares or any refinancing of the existing debt of the
Group or to any person who provides finance on or in
connection with any subsequent refinancing of such funding or
to any person from time to time appointed by any financier to
act as security trustee on behalf of such financier and any
such person or financier may assign such rights on any
enforcement of the security under such finance arrangements,
provided that nothing in this Clause 13 shall either, relieve the
assigning party of any obligation hereunder unless the other party to
this Agreement specifically consents in writing to the assigning party
being so relieved or, increase the liability of the non-assigning
party.
14 RIGHTS OF THIRD PARTIES
14.1 Save as expressly provided for in the provisions of this Clause 14,
Clause 10 (Post-Completion Restrictions) and Clause 13 (Assignment), a
person who is not a party to this Agreement has no rights under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ or otherwise to enforce
any term of this Agreement but this does not affect any right or remedy
of a third party which exists or is available apart from pursuant to
such Act.
14.2 The Companies and the Subsidiaries and any director, officer or
employee of the Companies or any Subsidiary may enforce the terms of
Clause 6.6 in accordance with the Contracts (Rights of Third Parties)
▇▇▇ ▇▇▇▇, provided always that, as a condition thereto, any such third
party shall:
14.2.1 obtain the prior written consent of the Buyer; and
14.2.2 not be entitled to assign its rights under this Clause 13.
15 GUARANTEE
15.1 In consideration of the Buyer entering into this Agreement, the
Guarantor, as primary obligor and not merely as surety, unconditionally
and irrevocably guarantees to the Buyer the proper and punctual
performance of the Seller's obligations under this Agreement including
the due and punctual payment of any sum which the Seller is liable to
pay (the "GUARANTEED OBLIGATIONS") without condition, set off or
counterclaim and irrevocably and unconditionally undertakes with the
Buyer that, if the Seller shall fail in any respect to fulfil any of
its said obligations or shall be in breach of any of the Warranties or
of any of the covenants given to the Buyer under this Agreement, the
Guarantor will, subject to the limitation of Clause 15.5, indemnify the
Buyer against all losses, damages, costs, charges and expenses which
may be suffered or reasonably incurred by the Buyer by reason of such
failure or breach to the intent that, if the Seller shall so fail, the
Buyer shall be at liberty to act and the Guarantor shall be liable as
if the Guarantor were the Party principally bound by such obligations.
15.2 The Guarantor's liability in respect of the Guaranteed Obligations
shall not be affected by any act or omission or other circumstances
which but for this Clause might operate to impair, release or discharge
such obligations, including:
15.2.1 an extension of time for performance by the Seller of its
obligations under this Agreement or other amendment, waiver or
release;
22
15.2.2 a defect in the Guaranteed Obligations such as to make them
void, voidable or unenforceable against the Seller;
15.2.3 the change in constitution or control of, or the liquidation,
administration, receivership or winding-up of the Seller or
analogous proceedings; and
15.2.4 any legal limitation, disability, incapacity or other
circumstance relating to the Seller or any other person or any
amendment to or variation of the terms of this Agreement or
the Tax Deed save where such variation refers specifically to
the obligations of the Guarantor.
15.3 This guarantee and indemnity is a continuing guarantee and shall remain
in force until all of the Guaranteed Obligations have been satisfied in
full and, until the Guaranteed Obligations have been so satisfied, the
Guarantor shall have no rights of subrogation or indemnity and shall
not claim in competition with the Buyer against the Seller.
15.4 The guarantee and indemnity contained in Clause 15.1 may be enforced by
the Buyer without first having to take any steps or proceedings against
the Seller.
15.5 Notwithstanding any other provision of this Clause 15, the Guarantor's
liability under this Clause 15 for any Guaranteed Obligation shall not
exceed the liability of the Seller for its breach of that Guaranteed
Obligation.
16 VARIATION
Any variation of this Agreement must be in writing and signed by each
party or, in the case of a body corporate, a duly authorised officer or
representative of such party.
17 WAIVER
A delay in exercising, or failure to exercise, any right or remedy
under this Agreement does not constitute a waiver of such right or
remedy or other rights or remedies nor shall either operate so as to
bar the exercise or enforcement thereof.
18 WHOLE AGREEMENT AND BUYER'S REMEDIES
18.1 This Agreement (together with any documents referred to herein
including the instructions given pursuant to Clause 4.5.1 hereof)
constitutes the whole agreement between the parties hereto.
18.2 The Buyer (for itself and as agent and trustee for an on behalf of each
Related Party and their respective directors, officers, employees,
agents and advisers) irrevocably and unconditionally waives any right
it may have to claim damages and/or to rescind this Agreement in
respect of any false or misleading statement (other than a statement
made fraudulently) made to it or a Related Party or any of their
respective directors, officers, employees, agents and advisers and upon
which it relied in entering into this Agreement but which is not
expressly set out in this Agreement.
18.3 The Buyer (for itself and as agent and trustee for and on behalf of
each Related Party and their respective directors, officers, employees,
agents and advisers) agrees that no representation, warranty, covenant
or undertaking is or was given in or in relation to the Information
Memorandum or any information, expression of opinion or future
intention,
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forecast, speculation, assessment, projection, illustration, estimate,
budget or advice contained or referred to in the Information Memorandum
or in the Data Room.
18.4 No breach of this Agreement shall in any event give rise to a right on
the part of the Buyer to rescind or terminate this Agreement. The sole
remedy of the Buyer in respect of any breach of this Agreement shall be
limited to damages or, in relation to a breach of Clause 10, damages or
an injunction and shall be subject to the limitations contained in this
Agreement.
18.5 The Buyer acknowledges and agrees that the express terms of this
Agreement are in lieu of all warranties, conditions, terms,
undertakings and obligations implied by statute, common law or
otherwise, all of which are hereby excluded to the fullest extent
permitted by law.
19 EFFECT OF COMPLETION
Except to the extent that they have been performed and except where the
Agreement provides otherwise, the warranties and obligations contained
in this Agreement remain in force after Completion.
20 COSTS
Save as otherwise expressly stated in this Agreement, each party shall
pay its own costs in connection with the negotiation, preparation and
implementation of this Agreement and all agreements ancillary to it.
21 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which when executed and delivered constitutes an original of this
Agreement, but all the counterparts shall together constitute one and
the same agreement. No counterpart shall be effective until each party
has executed and delivered at least one counterpart.
22 NOTICES
22.1 A notice or other communication given under this Agreement shall be in
writing and shall be served by delivering it to the party due to
receive it at the address set out in this Clause 22 and shall be deemed
to have been delivered in accordance with this Clause 22.
22.2 The parties' addresses and fax numbers for the purposes of this
Agreement are:
Epoch 2 Limited
▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
For the attention of: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax number: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
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AHL Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
For the attention of: ▇▇▇▇▇ ▇▇▇▇▇
Fax number: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
AHL Europe Limited
To its registered office with a copy to AHL Services, Inc., as above.
or such other address or fax number as the relevant party notifies to
the other parties, which change of address shall only take effect if
delivered and received in accordance with this Clause.
22.3 A notice so addressed shall be deemed to have been received:
22.3.1 if personally delivered, at the time of delivery;
22.3.2 if sent by pre-paid first class post, recorded delivery or
registered post, two Business Days after the date of posting
to the relevant address;
22.3.3 if sent by registered air-mail, five Business Days after the
date of posting to the relevant address; and
22.3.4 if sent by fax, on successful completion of its transmission
as per a transmission report from the machine from which the
fax was sent, save that if such notice of communication is
received after the end of normal working hours (and "NORMAL
WORKING HOURS" shall be deemed to be 8.30 am to 5.30 pm on any
Business Day in the country of the recipient), such notice or
communication shall be deemed to have been received on the
next Business Day.
22.4 For the avoidance of doubt, notice given under this Agreement shall not
be validly served if sent by electronic mail.
23 GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance
with, English law.
24 JURISDICTION
The party irrevocably agrees that the courts of England have exclusive
jurisdiction to decide and to settle any dispute or claim arising out
of or in connection with this Agreement.
IN WITNESS WHEREOF THIS AGREEMENT WAS EXECUTED BY THE PARTIES HERETO ON THE DATE
SET OUT ON PAGE 1.
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EXECUTED by the parties:
Signed by a duly authorised representative )
for and on behalf of )
AHL EUROPE LIMITED )
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Signed by a duly authorised representative )
for and on behalf of )
AHL SERVICES, INC: )
▇▇▇▇▇ ▇▇▇▇▇
Signed by a duly authorised representative )
for and on behalf of )
EPOCH 2 LIMITED: )
▇▇▇ ▇▇▇▇▇▇▇▇
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