DATED 2000
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ELTRAX UK LIMITED (1)
AREMISSOFT HOSPITALITY (UK) LIMITED (2)
VERSO TECHNOLOGIES, INC.
(formerly ELTRAX SYSTEMS, INC.) (3)
AREMISSOFT CORPORATION (4)
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ASSET SALE AND PURCHASE AGREEMENT
relating to the business of
ELTRAX UIMITED
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Ref: PIW.PPS.LS.2289.9
INDEX
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Page No:
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1. Definitions 1
2. Sale and Purchase of the Business 11
3. Consideration 11
4. Completion 12
5. Excluded Assets and Liabilities 13
6. Value Added Tax 13
7. Conduct of the Business 14
8. Debts and Liabilities 15
9. Risk and Liabilities 15
10. Title 17
11. Cash 18
12. Warranties by the Vendor 19
13. Employees 19
14. Vendor's Undertakings 20
15. Guarantees 21
16. Conditions 22
17. Property 22
18. Generally 25
19. Notices 26
Schedule 1 - Warranties 29
Schedule 2 - Transferring Employees 43
Schedule 3 - Agreed Liabilities 44
Schedule 4 - Debts 45
Schedule 5 - The Property 46
Schedule 6 - Apportionment of Consideration 47
Schedule 7 - Limitation of Liability on Warranties 48
Schedule 8 - Schedule of Condition 49
Appendix 1 - Computer Software Licences 51
Appendix 2 - Equipment 51
Agreed Form Documents:
1. Assignment of Debts 52
2. Assignment of Goodwill 57
3. Assignment of Intellectual Property Rights 64
4. Balance Sheet 70
THIS AGREEMENT is made the day of 2000
BETWEEN:
(1) ELTRAX UK LIMITED whose registered office is at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ (Registered No: 02042869) ("the Vendor");
(2) AREMISSOFT HOSPITALITY (UK) LIMITED whose registered office is at ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (Registered No: 4098063)
("the Purchaser");
(3) VERSO TECHNOLOGIES, INC. (formerly ELTRAX SYSTEMS, INC.) a corporation
incorporated under the law of the State of Minnesota USA whose principal
place of business is at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ("Verso Technologies"); and
(4) AREMISSOFT CORPORATION a corporation incorporated under the laws of the
State of Delaware USA whose principal place of business is at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ("the Purchaser's Parent
Company").
WHEREAS:
(A) The Vendor is an indirect wholly-owned subsidiary of Eltrax International
Inc. (a Pennsylvania corporation) whose holding company is Verso
Technologies.
(B) The Vendor provides turnkey hardware and software solutions and services to
the hospitality industry in the United Kingdom.
(C) The Purchaser's Parent Company is the ultimate holding company of the
Purchaser.
(D) The Purchaser's Parent Company (1) Verso Technologies (2) and Eltrax
Hospitality Group, Inc. (a Georgia Corporation) ("EHGI") (3), have agreed
under the terms of the Head Agreement (as defined below) that the
Purchaser's Parent Company will purchase certain of the assets and the
agreed liabilities of EHGI as provided in and on the terms of the Head
Agreement and pursuant thereto it has been agreed that the Vendor will sell
to the Purchaser the Business (as defined below) upon the terms and
conditions of this Agreement as the parties hereto agree.
NOW IT IS ▇▇▇▇▇▇ AGREED as follows:-
1. DEFINITIONS
1.1 In this Agreement the following words and expressions have the
following meanings unless inconsistent with the context:
"Accounting Date" means 31 December 1999;
"Accounts" means the accounts relating to the Business incorporated
into the audited financial statements of the Vendor for the
accounting reference period ended on the Accounting Date
comprising balance sheet, profit and loss account, notes, the
directors' and auditor's reports and cash flow statement as
included in Schedule 1 to the Disclosure Letter;
"Agreed Form" means in relation to any documents such document in the
form agreed between the parties and initialled by the Purchaser's
Solicitors and the Vendor's Solicitors for the purpose of
identification;
"Agreed Liabilities" the aggregate amount (including VAT) owed by the
Vendor at the Completion Date in connection with the Business to
or in respect of trade creditors which are set out in Schedule 3
exclusive of VAT to be assumed by the Purchaser pursuant to
Clause 8.3 and in addition any liabilities to be included in the
Management Accounts which the Purchaser agrees in writing to
assume in connection with the Business (but excluding any
liabilities relating to any other division of the Vendor or
liabilities due to any other company in the Vendor's Group and
also excluding any direct or indirect costs or liabilities
incurred in connection with the sale and purchase of the Business
whether under this Agreement or otherwise);
"Assets" means all assets and rights of the Vendor used in the conduct
of Business as at the Completion Date to be bought and sold
pursuant to Clause 2.1, including, but not limited to, all
intellectual property and software and hardware products used in
the Business and all other Assets of the Vendor save the Excluded
Assets;
"Balance Sheet Date" means the 30 September 2000; "Business" means the
business of providing turnkey hardware and software solutions and
services to the hospitality industry carried on by the Vendor at
the date hereof in the event that this Agreement is entered into
on a date prior to the Completion Date and at the Completion
Date;
"Business" means the business of providing turnkey hardware and
software solutions and services to the hospitality industry
carried on by the Vendor at the date hereof in the event that
this
Agreement is enetered into on a date prior to the Completion Date
and at the Completion Date;
"Business Contracts" means the Customer Contracts, the Supplier
Contracts and the Lease Contracts ;
"Business Day" means any day which is not a Saturday, a Sunday or a
Bank or Public Holiday in England and Wales;
"Business Information" means all information, know-how and techniques
(whether or not confidential and in whatever form held) which in
any way relates to:-
(i) all or any part of the Business or Assets;
(ii) any products manufactured and/or sold or services rendered
by the business;
(iii)any formulas, designs, specifications, drawings, data,
manuals or instructions;
(iv) the operations, management, administration, or financial
affairs of the Business (including any business plans or
forecasts, information relating to future business
development or planning and information relating to
litigation or legal advice); and
(v) the sale or marketing of any of the products manufactured
and/or sold or services rendered by the Business, including
but without limiting the generality of the foregoing words,
customer names and lists, sales and marketing information
including but not limited to targets, sales and market share
statistics, market surveys and reports on research;
"Business Name" means Eltrax UK or any name including the word Eltrax
or any colourable imitation of it;
"Cash" means any cash balances held at the Completion Date for the
purpose of reimbursing out-of-pocket expenses in connection with
the Business and cash at the bank in accordance with Clause 11
and all cheques and other securities representing the same;
"Completion" means the completion of the sale and purchase of the
Business and the Assets in accordance with Clause 4;
"Completion Date" means the date hereof;
"Completion Time" means the time at which the Completion actually
occurs, which shall take place at 3.30 p.m. in the United Kingdom
where the Vendor conducts its Business;
"Computer Software Licences" means the computer software licences held
by the Vendor as listed in Appendix 1 together with the benefit
of all guarantees given to the Vendor in respect thereof or
relating thereto;
"Computer Systems" means all computer hardware, software and networks
owned or used by the Business including all arrangements relating
to the provision of maintenance and support, security, disaster
recovery, facilities management, bureau and online services to
the Business;
"Computer Systems Agreements" means all arrangements and agreements
pursuant to which any third party, including any member of the
Vendor's Group provides any element of the Computer Systems to
the Business including without limitation the agreements
particulars of which are set out in Schedule 2 to the Disclosure
Letter and in addition any agreements to be included in Schedule
2 to which the Vendor and the Purchaser agree in writing prior to
Completion;
"Consideration" means the purchase price payable by the Purchaser to
the Vendor for the Business and Assets hereby agreed to be sold
of US Dollars ten thousand (US$10,000) apportioned as provided in
Schedule 6;
"Creditors"* means all trade and other debts, accrued charges and all
other amounts owing by the Vendor in connection with the Business
on the Completion Date except the Excluded Liabilities to the
extent taken into account in the Management Accounts together
with such debts as have properly been incurred in the ordinary
course of business between the 30 September 2000 and
Completion except the Excluded Liabilities; *NB referred to in
Warranties only
"Customer Cash" means all cash sums belonging or referable to
customers or potential customers of the Business which are held
or deposited with the Vendor as deposits for or advances of
instalment payments in relation to, any Business Contract or so
held or deposited in relation to any future contract or order
which any such customer may place with the Business in the
future;
"Customer Contracts" means all those contracts, engagements or orders
entered into on or by the Completion Date by or on behalf of the
Vendor with its customers for the sale, loan or hire of goods or
equipment or provision of services by the Vendor in connection
with and in the ordinary course of business which at the
Completion Date remain to be performed in whole or in part by the
Vendor including, without limiting the generality of the
foregoing words, all those contracts, particulars of which are
set out in Schedule 3 to the Disclosure Letter and in addition
any Customer Contracts to be included in Schedule 3 to which the
Vendor and the Purchaser agree in writing prior to Completion;
"Debts" means the aggregate amount (including VAT) owed to the Vendor
at the Completion Date in connection with goods and services
supplied in the Business by or in respect of trade debtors
including (but without limitation) those trade debtors set out in
Schedule 4 (which are set out exclusive of VAT) and in addition
any debtors in connection with the Business to be included in the
Management Accounts which have fallen due between the 30
September 2000 and Completion to be assigned to the Purchaser
pursuant to a Deed of Assignment of Debts in the Agreed Form;
"Disclosed" means fully and fairly disclosed to the Purchaser
expressly for the purposes of this Agreement in the Disclosure
Letter and for the purposes of this definition the expression
"fully and fairly" means that a matter shall be Disclosed only if
it has been disclosed with reference to a particular Warranty
identified by its number in Schedule 1
with sufficient particularity to enable the Purchaser to assess
the full impact on the Business of the matter disclosed;
"Disclosure Letter" the letter disclosing exceptions to the Warranties
dated the date hereof and written and delivered by the Vendor to
the Purchaser ;
"the Eltrax Guarantor" means Verso Technologies;
"Equipment" means the loose equipment comprising furniture, plant and
machinery, computer hardware, computer software, facsimile,
filing systems, archives and any other equipment wherever situate
belonging to the Vendor and used in connection with the Business
including, without limitation to the generality of the foregoing
words, all those items particulars of which are set out in
Appendix 2 and in addition any Equipment to be included in
Appendix 2 which the Vendor and the Purchaser agree in writing
prior to Completion;
"Excluded Assets" means the assets listed in Clause 5 which are owned
by the Vendor and excluded from the sale;
"Excluded Employees" means all employees if any other than the
Transferring Employees as listed in Schedule 2 Part 2;
"Excluded Liabilities" means the liabilities of the Vendor in relation
to the Business outstanding at the Completion Date save for the
Agreed Liabilities;
"Goodwill" means the goodwill of the Vendor in connection with the
Business including the exclusive right for the Purchaser to
represent itself as carrying on the Business in succession to the
Vendor, and under the names and in connection with products of
the Business under the trade names Medallion, Medallion 2000,
Medallion 3000, Check, Innmaxx, Lanmark, Winnmaxx, EIS and SCMS
and all other trade names of the Business but excluding "Eltrax"
and "Eltrax Hospitality" and all other trading names and styles
of the Vendor;
"Head Agreement" means the Agreement dated 29 September 2000 between
the Purchaser's Parent Company (1) and Verso Technologies (2) and
EHGI (3) by virtue of which the Purchaser's Parent Company has
agreed to purchase the acquired assets and assume the assumed
liabilities for the consideration (as such terms are defined in
the Head Agreement) and upon the terms of the Head Agreement;
"Information" means other than the Retained Records all stationery
promotional material brochures sales publications advertising
material terms of business and all other written or printed
material issued solely in connection with the Business and owned
by the Vendor;
"Intellectual Property Rights" means patents, know-how, registered and
unregistered trademarks and service marks (including any trade,
brand or business name and any distinctive sounds used to
differentiate the goods or services of the Business), domain
names, registered designs, registered rights, utility models,
copyright (including all such rights in computer software and
hardware, the Business Information and any databases), moral
rights and topography rights, (in each case for the full period
thereof and all extensions and renewals thereof), applications
for any of the foregoing and the right to apply for any of the
foregoing in any part of the world and any similar rights
situated in any country; and the benefit (subject to the burden)
of any and all agreements, arrangements and licences in
connection with any of the foregoing and without prejudice to the
generality of the foregoing the rights to use, assign, licence or
grant rights over any trade or service mark of the Vendor or any
member of the Vendor including the rights to Medallion, Medallion
2000, Medallion 3000, Check, Innmaxx, Lanmark, Winnmaxx, EIS and
SCMS but save for "Eltrax" and "Eltrax Hospitality";
"Landlord" means the person or corporation for the time being entitled
to the reversion expectant on the term granted by the Lease and
shall include any superior landlord and the freeholder of the
Property excluded from the sale hereby agreed;
"Lease" means the Lease of the Property as defined below;
"Lease Contracts" means those contracts and other contractual
arrangements particulars of which are set out in Schedule 6 to
the Disclosure Letter (including, without limitation, finance
leases, but excluding leases of real property) entered into by or
on behalf of the Vendor in connection with the Business and which
remain unperformed as at the Completion Date pursuant to which
tangible assets used by the Vendor in or in connection with the
Business at that date (together "the Leased Assets") have been
supplied to or are held by the Vendor on hire or other rental,
lease, licence, hire purchase, or in other terms such that title
thereto does not pass or has not passed to the Vendor;
"Management Accounts" means the balance sheet of the Business made up
at 30 September 2000 and the trading and profit and loss account
of the Business for the period of 9 months ended on that date in
the Agreed Form;
"Motor Vehicles" means those, motor vehicles, details of which are set
out in Schedule 4 to the Disclosure Letter and in addition any
Motor Vehicles to be included in Schedule 4 which the Vendor and
the Purchaser agree in writing prior to Completion;
"Planning Acts" means the Town and Country Planning Act 1990, the
Planning (Listed Building Conservation Areas) Act 1990, the
Planning (Hazardous Substances) Act 1990 and the Planning
Compensation Act 1990;
"the Property" means the leasehold property owned by the Vendor
described in Schedule 5;
"Purchaser's Solicitors" means Messrs ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co of ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇;
"Records" means all sale and purchase records and lists of customers,
suppliers, agents, distributors and prospective customers,
contracts, correspondence, data, information reports, all
consultancy reports prepared for the Vendor or its customers,
personnel, payroll and national insurance records, orders for
services and other books and records in whatever form the same
are maintained (including computer programmes) in respect of the
Business as are within the power possession or control of the
Vendor and as may exist but excluding the Retained Records and
any other records the Vendor is required to retain including
(without limit) all national insurance and PAYE records and all
records which relate both to the Business and other operations or
businesses of the Vendor's Group;
"Retained Records" means records and other documents of the Vendor
relating to the Business required to be retained by the Vendor by
law;
"Stock" all unsold products and stock in trade, raw materials,
components and work in progress of the Business at the Completion
Date;
"Supplier Contracts" means all those contracts, engagements or orders
entered into on or prior to the Completion Date by or on behalf
of the Vendor for the supply or sale of goods to the Vendor in
connection with and in the ordinary course of the Business which
at the Completion Date remain to be performed in whole or in part
including, without limiting the generality of the foregoing
words, all those contracts, particulars of which are set out in
Schedule 5 to the Disclosure Letter and in addition any Supplier
Contracts to be included in Schedule 5 which the Vendor and the
Purchaser agree in writing prior to Completion;
"Third Party Rights" means rights of the Vendor against third parties
arising out of the Business in respect of manufacturer's or
supplier's warranties guarantees and other contractual
obligations and assurances (express or implied) in relation to
Stock, Equipment and Computer Systems so far as the Vendor can
assign the same but excluding any claim or right by the Vendor in
respect of taxation or insurance;
"Transferring Employees" means the employees listed in Schedule 2 Part
1 and in addition any other Transferring Employee which the
Vendor and the Purchaser agree in writing prior to Completion;
"VAT Records" means all records relating to the Business referred to
in Section 49 of and Schedule 11 to the Value Added Tax 1994;
"Vendor's Group" means the holding company of the Vendor and all of
the subsidiaries of such holding company;
"Vendor's Solicitors" Ormerods of Green Dragon House, ▇▇-▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇;
"Warranties" the warranties representations and undertakings given by
the Vendor and guaranteed by the Eltrax Guarantor set out in
Schedule 1 to this Agreement and "Warranty" shall be construed
accordingly.
1.2 The schedules and appendices attached hereto form part of this Agreement
and have the same force and effect as if expressly set out in the body of
this Agreement and any reference to this Agreement includes the schedules,
appendices and the recitals hereto
1.3 In this Agreement and its schedules:
1.3.1 words and expressions defined in the Companies Acts 1985-1989 bear
the same respective meanings
1.3.2 reference to any statute or statutory provision includes any
statute or statutory provision which amends or replaces or has
amended or replaced it or which it has replaced and includes any
subordinate legislation made under the relevant statute except to
the extent that any amendment or modification enacted after the date
of this Agreement would extend or increase the liability of the
Vendor under the Warranties
1.3.3 the paragraph headings and index are for reference purposes only and
shall not affect interpretation
1.3.4 unless otherwise stated a reference to a clause or schedule is a
reference to the clause or schedule so numbered in this Agreement
1.3.5 unless the context otherwise requires words importing one gender
include the other genders and words importing the singular include
the plural and vice versa
2. SALE AND PURCHASE OF THE BUSINESS
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2.1 Subject to the provisions of this Agreement the Vendor shall sell and the
Purchaser shall purchase for the Consideration with effect from the
Completion Date the Business as a going concern and the Assets and without
prejudice to the generality of the foregoing the Assets shall include in
particular the following assets of the Business:
2.1.1 the Goodwill;
2.1.2 the Equipment;
2.1.3 the benefit (subject to the burden) of the Business Contracts;
2.1.4 the benefit (subject to the burden) of the Computer Software Licences
(including for the avoidance of doubt the benefit of all guarantees
given to the Vendor in respect thereof or relating thereto);
2.1.5 the Stock;
2.1.6 the Intellectual Property Rights;
2.1.7 the Cash;
2.1.8 the Computer Systems and the benefit of the Computer Systems
Agreements;
2.1.9 the Motor Vehicles;
2.1.10 without in any way limiting the generality of the foregoing all
other assets (if any) of the Vendor of whatever nature employed in the
Business at the Completion Date but excluding the Excluded Assets
2.2 The Consideration (apportioned as provided in Schedule 6) shall be paid in
cash upon Completion in accordance with Clause 4.3;
2.3 The Eltrax Guarantor shall procure that the Vendor complies with its
obligations under clause 2.1
2.4 The Purchaser's Parent Company shall procure that the Purchaser complies
with all the Purchaser's obligations under this Agreement;
3. CONSIDERATION:
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3.1 The Consideration payable for the sale by the Vendor of the Business and
the Assets shall be the sum of US Dollars ten thousand (US$10,000) equal to
the aggregate of the values of the Goodwill, the Equipment, the Business
Contracts, the Computer Software Licences, the Stock, the Intellectual
Property Rights, the Cash, the Computer Systems and the Computer Systems
Agreements, and the Motor Vehicles.
4. COMPLETION
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4.1 Completion shall take place at the Purchaser's Solicitors offices on the
Completion Date at the Completion Time or at such other place as the
parties may agree whereupon the transactions set out in Clauses 4.2 and 4.3
shall take place.
4.2 The Eltrax Guarantor shall procure and the Vendor shall deliver or cause to
be delivered to the Purchaser:
4.2.1 a Deed of Assignment of the Intellectual Property Rights in the
Agreed Form duly executed by the Vendor;
4.2.2 a Deed of Assignment of the Goodwill in the Agreed Form duly executed
by the Vendor
4.2.3 a Deed of Assignment of the Debts in the Agreed Form duly executed by
the Vendor
4.2.4 the Equipment, the Computer Systems, the Motor Vehicles and all other
of the Assets as are capable of passing by delivery
4.2.5 such documents as shall be reasonably necessary or appropriate to
complete the sale and purchase of the Assets and vest title in them
in the Purchaser
4.2.6 the Records and VAT records and copies of the PAYE and National
Insurance records
4.2.7 the Stock
4.2.8 the Business Contracts which the Vendor hereby assigns to the
Purchaser
4.2.9 the Business Information and the Information
4.2.10 the Computer Software Licences and the Computer Systems Agreements
4.2.11 deeds of release in respect of all charges mortgages debentures and
other security interests created by the Vendor or to which any of
the Assets are subject in terms satisfactory to the Purchaser
4.2.12 transfer documents in respect of Motor Vehicles
4.3 At the request and on the authority of the Vendor the Purchaser shall pay
or cause to be paid to Verso Technologies Inc the Consideration.
4.4 The Purchaser shall not be obliged to complete the purchase of any of the
Assets unless the purchase of all the Assets is completed in accordance
with this Agreement (and completion of the Head Agreement is or shall have
been effected).
4.5 The Vendor undertakes with the Purchaser to allow the Purchaser on
reasonable notice access to or copies of such of the Retained Records
relating to the period before Completion as the Purchaser may reasonably
require in order to comply with any legal obligations imposed on the
Purchaser after Completion and the Vendor undertakes that it shall give
such reasonable assistance to the Purchaser as shall be agreed by the
Purchaser and the Vendor after the Completion Date to facilitate the
transition of the Business to the Purchaser including if requested by the
Purchaser attending meetings with customers of the Business
5. EXCLUDED ASSETS AND LIABILITIES
There shall be excluded from the sale and purchase of the Business and retained
by the Vendor:
5.1 all the statutory books and statutory records of the Vendor and the
Retained Records
5.2 any amounts recoverable by the Vendor in respect of taxation paid or
payable by the Vendor in connection with matters or events occurring on or
before the Completion
5.3 the Excluded Liabilities
5.4 the Property
6. VALUE ADDED TAX
6.1 The parties intend that Section 49 of the Value Added Tax Act 1994 and
Article 5 of the Value Added Tax (Special Provisions) Order 1995 shall
apply to the transfer of the Business and the parties shall use all
reasonable endeavours to secure that the sale of the Business as a going
concern is treated as neither a supply of goods nor a supply of services
for the purposes of VAT
6.2 In the event that VAT is chargeable on the transfer of the whole or any
part of the Business pursuant to this Agreement the Purchaser shall pay
within sufficient time for the Vendor to pay such VAT in due time to the
Vendor (in addition to the Consideration referred to in Clause 2.2) an
amount equal to the VAT payable in respect of the transfer following
delivery by the Vendor to the Purchaser of tax invoices in respect of the
purchase price (or such part that attracts VAT)
6.3 The Purchaser hereby undertakes to preserve the VAT Records for such
periods as are required by law and, upon reasonable notice but only during
normal business hours, to permit the Vendor or its duly authorised
representatives to inspect and at the Vendor's costs to make copies of the
VAT records
7. CONDUCT OF THE BUSINESS
7.1 In the event that this Agreement is entered into on a date prior to the
Completion Date the Vendor shall carry on the Business as a going concern
and prudently and in an efficient and business-like manner from the date of
this Agreement to the Completion Date and during such period shall:
7.1.1 not sell or dispose of any of the Assets or remove any physical
Assets of the Business from the Property save in the course of
normal day to day trading;
7.1.2 use its best endeavours to maintain the trade and trade connection of
the Business and shall not by any action omission default or
neglect knowingly damage or risk damage to the same;
7.1.3 settle the debts incurred by it in the course of the Business
including (without limitation) salaries wages and other emoluments
payable to the employees of the Business;
7.1.4 not enter into any material contract or incur capital expenditure
(other than as disclosed in writing to the Purchaser prior to the
date of this Agreement or except with the prior written consent
of the Purchaser or at its request);
7.1.5 not in any way depart from the ordinary course of the day-to-day
conduct of the Business either as regards the scope or the manner of
conducting the same;
7.1.6 not enter into any unusual or abnormal contract or commitment which
is material to the Business;
7.1.7 not grant or create or agree to grant or create any mortgage charge
debenture or other incumbrance over or affecting any of the Assets;
7.1.8 not permit any of its insurances to lapse or do or omit to do any
thing which would make any policy of insurance void or voidable.
7.2 The Purchaser shall take over the Business with effect from the Completion
Date and shall assume responsibility for the management of the Business in
all respects.
8. DEBTS AND LIABILITIES
8.1 The Vendor shall assign the Debts to the Purchaser on Completion by
executing a Deed of Assignment in the Agreed Form as provided in Clause
4.2.3.
8.2 The Vendor shall be solely responsible for and in the ordinary course of
business shall discharge the Excluded Liabilities promptly and
notwithstanding Completion shall be responsible for all debts payable by
and claims accruing or outstanding against it in relation to the Business
at Completion (save for the Agreed Liabilities) which it hereby agrees to
discharge and satisfy in a timely manner. In relation to any claim made by
a third party the Vendor will promptly give notice thereof to the Purchaser
and will not take any steps which might reasonably be expected to damage
the commercial interests of the Purchaser without prior consultation with
and the approval of the Purchaser such approval not to be unreasonably
withheld or delayed.
8.3 The Purchaser shall be responsible for discharge of the Agreed Liabilities
in accordance with their terms as from Completion
8.4 The Purchaser shall fully and effectively indemnify and keep indemnified
the Vendor on demand against all demands, claims, liabilities, costs and
expenses properly incurred by it in relation to the Agreed Liabilities
9. RISK AND LIABILITIES
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9.1 The assets rights and property to be sold pursuant to this Agreement shall
be at the sole risk of the Purchaser from the Completion Time
9.2 Save for the Agreed Liabilities and the other obligations of the Purchaser
assumed hereunder the Vendor hereby undertakes to indemnify and hold
harmless the Purchaser from and against any and all
9.2.1 losses costs liabilities and expenses arising out of or in connection
with the ownership or carrying on of the Business arising or relating
to all periods up to or on Completion and any and all actions suits
proceedings claims demands assessments awards and judgements in
respect thereto and (save in respect of work in progress and
unfinished products and any steps required to be taken by the
Purchaser under Clause 7.2)
9.2.2 liabilities arising under or in respect of all contractual
commitments entered into by the Vendor in respect of the Business
(save as provided in Clause 2.1.3 in respect of the Business
Contracts)
9.3 The Purchaser covenants with the Vendor that it will pay, satisfy,
discharge, and fulfil all costs, claims, expenses, liabilities, obligations
and undertakings whatsoever relating to the Business in respect of any
period commencing after Completion except the Excluded Liabilities and will
indemnify and hold harmless the Vendor in respect of the same (except the
Excluded Liabilities)
9.4.1 Subject to Clause 9.4.2 after Completion the Purchaser shall meet and
discharge all claims for fulfilment of warranties given by the Vendor
in relation to the Business to customers which have been disclosed to
the Purchaser or are normal warranties given in the ordinary course
of the Business which arise after that date in respect of products
sold or supplied or services provided by the Vendor before Completion
and the Purchaser shall indemnify the Vendor against all reasonable
costs and liabilities incurred by the Vendor under such warranties
9.4.2 In respect of liability for the costs to upgrade Squirrel software to
"Version 1.1" pursuant to an international distribution agreement
made between Squirrel Systems, Inc. ("Squirrel") (1) and
AremisSoft Hospitality (US), Inc., (2) dated 18 October 2000 (the
"Distribution Agreement"), neither the customers of the Business nor
the Purchaser, the Purchaser's Parent Company nor its subsidiaries
with respect to such customers, will be liable for the cost of
providing the Version 1.1 upgrade pursuant to and in accordance
with the terms of the Distribution Agreement. Other than the rights,
duties, liabilities and obligations created by the Distribution
Agreement, no rights, duties, liabilities or obligations are granted
to or imposed upon any party by this clause.
9.5 All rents, rates, gas, water, electricity and telephone charges and service
charges and other outgoings relating to or payable in respect of the
Business (including but not exclusively repairs, decoration, damages for
breach of covenant landlord's costs including surveyors fees in respect
thereof) up to and including Completion shall be borne by the Vendor and
after Completion such charges and other outgoings (excluding damages for
breach of covenant arising from lack of repair, decoration and any other
breach prior to Completion and landlord's costs including surveyors fees
relating to a claim for damages for a breach of covenant prior to
Completion) relating to or payable in respect of the Business and the
Property whilst it is used for the purpose of the Business or by the
Purchaser or any associated company of the Purchaser as aforesaid shall be
borne by the Purchaser. Outgoings and payments receivable including
Customer Cash shall be apportioned between the Vendor and the Purchaser on
a like basis. All rents, rates, gas, water, electricity and telephone
charges and service charges and other outgoings in respect of the Property
(including but not exclusively repairs, decoration, damages for breach of
covenant landlord's costs including surveyors fees in respect thereof and
any reverse premium arising after Completion) and all rentals or other
payments and periodic payments including premiums receivable on an
assignment or surrender of the Lease or a subletting thereof and other
benefits in respect of the Property after the later of Completion and the
date the Property is no longer used for the purpose of the Business or by
the Purchaser as aforesaid shall be dealt with in accordance with Clause
17.
9.6 Where any amounts fall to be apportioned under this Agreement, the Vendor
shall provide the Purchaser with full details of the apportionments,
together with supporting vouchers or similar documentation, and in the
absence of dispute the appropriate payment shall be made by or to the
Vendor forthwith. If the amount of any apportionment is in dispute, the
provisions of Clause 9.7 shall apply for resolving the dispute and the
amount determined in accordance with that clause shall be paid within 14
days of the determination, together with interest calculated on a daily
basis (as well after as before judgment), from the Completion until the
date of actual payment, at the rate of one per cent per annum above the
base rate from time to time of Barclays Bank PLC
9.7 Any dispute with respect to the determination of the value of any
apportionments under Clause 9.6 shall be referred for final settlement to a
firm of chartered accountants nominated jointly by the Vendor and the
Purchaser or, failing such nomination within 14 days after request by
either the Vendor or the Purchaser, nominated at the request of either of
them by the President for the time being of the Institute of Chartered
Accountants in England and Wales. The accountants shall be entitled to call
for and inspect the working papers of the Vendor's auditors and such other
documents as they may reasonably consider necessary. In making their
determination, the accountants shall act as experts and not as arbitrators,
their decision shall (in the absence of manifest error) be final and
binding on the parties and their fees shall be borne and paid by the Vendor
and the Purchaser in such proportions as the accountants determine
9.8 The Vendor shall be granted by the Purchaser the right during normal
business hours to inspect on reasonable notice all the Records relating to
the Business which the Vendor considers necessary to consider such
apportionments provided that the Vendor shall keep the same confidential
and not divulge or disclose the same save as required by law
9.9 The Vendor shall maintain all such of the Retained Records which are
retained by it on Completion for a period of not less than 7 years from
Completion
10. TITLE
10.1 The Eltrax Guarantor shall procure that it and the Vendor shall take all
necessary steps and generally co-operate fully with the Purchaser to ensure
that it obtains the full benefit of the Business and the Assets and shall
execute such documents and take such other steps as are reasonably
necessary or appropriate for vesting its rights and interests in the
Business and the Assets in the Purchaser and as requested by the Purchaser
10.2 In so far as the Assets comprise the benefit and burden of the Business
Contracts or the Computer Software Licences or Computer Systems Agreements
(in this Clause together referred to as "the Contracts") which cannot be
effectively assigned to the Purchaser without the consent of a third party
or except by agreement or novation:-
10.2.1 the Vendor and the Purchaser shall use all reasonable endeavours to
obtain such consent in order to procure a novation;
10.2.2 unless and until such consent is obtained or any such contract is
novated the Purchaser shall for its own benefit and to the extent
that the Contracts permit the Vendor shall hold the relevant
Contracts as bare trustee for the Purchaser (and subject to Clause
10.2.3) for nil consideration and shall sub-contract any work
arising from the Contracts to the Purchaser to the intent that
the Vendor does not benefit from the Contracts
10.2.3 if and to the extent that any Contract incorporates a prohibition
against holding on trust or any agency arrangement, pending
the obtaining of such consents, the Vendor and the Purchaser
will make such other arrangements between themselves as may be
permissible to implement so far as possible the effect of the
transfer of the benefit and the burden of such Contracts to the
Purchaser to the intent that the Vendor does not benefit from and
incurs no expense in respect of the Contracts.
10.3 The Purchaser shall indemnify and hold harmless the Vendor against all
costs, claims, liabilities and expenses arising out of the Contracts (but
not in the event that the same arises from a breach or default by the
Vendor) after Completion
10.4 The Eltrax Guarantor shall procure that whilst the Vendor's obligations
under Clause 10.2 subsist the Vendor shall remain solvent, pass no
resolution or have no order made against it for its winding-up, have no
administrator, administrative receiver or receiver appointed in respect of
its assets or take or suffer any similar or analogous action in consequence
of debt.
11. CASH
11.1 The Vendor shall within fourteen days after the Completion Date produce to
the Purchaser a cash statement that shall reconcile with the bank account
of the Vendor at the Completion Date and all cheques and other securities
representing the same received by the Vendor after the Completion Time and
the Vendor shall further produce copies of its relevant bank statements and
shall pay to the Purchaser the amount (if any) shown as a credit on such
statement within 7 days of production of the cash statement and the
relevant bank statements together with interest thereon from the expiry of
such 7 day period at 1% over the Base Rate of Barclays Bank.
11.2 Any dispute with respect to the determination of the amount of the Cash
shall be referred for final settlement to a firm of chartered accountants
nominated jointly by the Vendor and the Purchaser or, failing such
nomination within 14 days after a request by either the Vendor or the
Purchaser, nominated at the request of either of them by the President for
the time being of the Instituted of Chartered for and in Accountants in
England and Wales. The accountants
shall be entitled to call for the cash statement and the bank statements
referred to in 11.1 and such other documents as they may reasonably
consider necessary. In making their determination, the accountants shall
act as experts and not as arbitrators, their decision shall (in the absence
of manifest error) be final and binding on the parties and their fees shall
be borne and paid by the Vendor and the Purchaser in such proportions as
the accountants determine.
12. WARRANTIES BY THE VENDOR
------------------------
12.1 The Vendor warrants to the Purchaser that subject to matters Disclosed in
the Disclosure Letter and in this Agreement the Warranties set out in
Schedule 1 at the date of this Agreement are (and will at Completion be)
true and accurate in all respects
12.2 The rights and remedies of the Purchaser in respect of any breach of the
Warranties shall not be affected by Completion, by the Purchaser failing to
exercise or delaying the exercise of any of its rights or remedies or by
any other event or matter whatsoever
12.3 Where any Warranty refers to the awareness or knowledge information and
belief of the Vendor the Vendor undertakes that it has procured that ▇▇▇▇▇
▇▇▇▇▇ director of the Vendor has made reasonable, diligent and proper
enquiry into the subject matter of that Warranty
12.4 If the Vendor pays to the Purchaser an amount in respect of a breach of the
Warranties and the Purchaser subsequently recovers from a third party a sum
which is in respect of that breach the Purchaser shall forthwith pay to the
Vendor so much of the amount paid by the Vendor as does not exceed the sum
recovered from the third party less all reasonable costs charges and
expenses incurred by the Purchaser in recovering that sum from the third
party and any applicable tax
13. EMPLOYEES
13.1 The parties declare that it is their intention that the contracts of
employment of the Transferring Employees shall be transferred to the
Purchaser pursuant to the Transfer of Undertakings (Protection of
Employment) Regulations 1981 ("the Regulations") with effect from
Completion
13.2 All salaries and other emoluments including national insurance payments
relating to the Transferring Employees shall be borne by the Vendor up to
and including Completion and by the Purchaser thereafter and all necessary
apportionments shall be made
13.3 The Vendor shall indemnify the Purchaser against each and every cost claim
liability expense or demand which relates to or arises out of any act or
omission by the Vendor including without prejudice to the generality of the
foregoing any failure by the Vendor to comply with its obligations under
regulation 10 of the Regulations or any other event or occurrence prior to
the
Completion Date and which the Purchaser may incur in relation to the
employment of the Transferring Employees and in relation to any contract of
employment and collective agreements concerning the Transferring Employees
pursuant to the operation of the Regulations including without limitation
any such matter relating to or arising out of:
13.3.1 the Vendor's rights powers duties and/or liabilities under or in
connection with any such contract of employment and any such
collective agreements (which rights powers duties and/or liabilities
are or will be transferred to the Purchaser in accordance with the
Regulations)
13.3.2 anything done or omitted before the date of Completion by or in
relation to the Vendor in respect of any contract of employment or
any such collective agreements or any person employed in the
Business which is deemed to have been done or omitted by or in
relation to the Purchaser in accordance with the Regulations
13.3.3 the Vendor's failure to pay to any Transferring Employee any sums
due in respect of the period prior to the Completion Date
13.3.4 any claim by any trade union, staff association, employee
representatives or staff body recognised by the Vendor or
Transferring Employees in respect of all or any of the
Transferring Employees arising out of the Vendor's failure
to comply with its legal obligations to such trade unions or
staff associations, employee representatives, staff bodies or
Transferring Employees
13.3.5 any claim by any of the Excluded Employees (if any) or any other
former existing or future employee of the Vendor (other than
Transferring Employees) against the Purchaser concerning or relating
to any matter whatever including without limitation any claim by
such Excluded Employees (if any) that their employment has
transferred to the Purchaser or arising from any termination
which the Purchaser effects of such Excluded Employees (if any)
13.4 The Purchaser shall indemnify the Vendor against each and every cost claim
liability expense or demand arising from any act or omission by the
Purchaser in relation to a Transferring Employee occurring after the
Completion Date
13.5 The parties hereby agree and acknowledge that the Excluded Employees (if
any) shall be deemed not to transfer with the Business and shall remain in
the employ of the Vendor.
14. VENDOR'S UNDERTAKINGS
For the purpose of assuring to the Purchaser the full benefit of the Business
the Vendor covenants with the Purchaser that the Vendor shall not and the Eltrax
Guarantor as a separate covenant covenants with the Purchaser that it shall not
and
shall procure that each company in the Vendor's Group shall not:-
14.1 use in any way, for their own account or the account of any other party,
nor disclose to any third party, Confidential Information relating to the
Business or any clients or customers of the Business or any Assets or
Information which are the subject of this Agreement save as may be required
by law or which enters the public domain (through no fault of the Vendor)
14.2 publish any technical descriptions of Confidential Information beyond those
published and authorised for disclosure by the Purchaser save as may be
required by law or which enters the public domain (through no fault of the
Vendor)
14.3 for three (3) years following the Completion, either on its own account or
through or in conjunction with any other person anywhere within the United
Kingdom unless otherwise authorised by the Purchaser in writing directly or
indirectly
14.3.1 solicit, interfere with, approach or endeavour to entice away from
the Purchaser any person who is now or has during the last two
(2) years preceding the Completion been a client or customer or
potential client or customer or employee or contractor of the Vendor
in relation to the Business
14.3.2 participate in the ownership, management, operation, or control of,
or have any financial interest in or be connected with, or engage
in or aid or knowingly assist anyone else, in the conduct of any
business in competition with the Business
15. GUARANTEES
15.1 In consideration of the Purchaser entering into this Agreement the Eltrax
Guarantor hereby guarantees the due and full performance by the Vendor of
its duties obligations and undertakings under this Agreement and hereby
undertakes to the Purchaser that if the Vendor shall fail in any respect to
fulfil or shall be in breach of any of its duties obligations Warranties
representations covenants or undertakings the Purchaser shall be at liberty
to act and the Eltrax Guarantor shall be liable as if it were the party
principally bound thereby
15.2 In consideration as aforesaid the Eltrax Guarantor hereby covenants with
the Purchaser that it will indemnify and at all times hereafter keep the
Purchaser fully indemnified against all losses damages costs and expenses
which may be incurred or suffered by it by reason of any default on the
part of the Vendor in making the payments and in performing and observing
the agreements and conditions on its part herein contained
15.3 The Eltrax Guarantor hereby agrees that any duty obligation covenant
Warranty agreement or undertaking expressed in this Agreement or in the
Schedules to be a duty obligation covenant Warranty agreement or
undertaking
of the Vendor shall be and be construed as a duty obligation covenant
Warranty agreement and undertaking of the Eltrax Guarantor and the Vendor
jointly and severally
15.4 In consideration of the Vendor entering into this Agreement the Purchaser's
Parent Company hereby guarantees the due and full performance by the
Purchaser of its duties obligations and undertakings under this Agreement
and hereby undertakes to the Vendor that if the Purchaser shall fail in any
respect to fulfil or shall be in breach of any of its duties obligations
representations covenants or undertakings the Vendor shall be at liberty to
act and the Purchaser's Parent Company shall be liable as if it were the
party principally bound thereby.
15.5 In consideration as aforesaid the Purchaser's Parent Company hereby
covenants with the Vendor that it will indemnify and at all times hereafter
keep the Vendor fully indemnified against all losses damages costs and
expenses which may be incurred or suffered by it by reason of any default
on the part of the Purchaser in making the payments and in performing and
observing the agreements and conditions on its part herein contained.
15.6 The Purchaser's Parent Company hereby agrees that any duty obligation
covenant agreement or undertaking expressed in this Agreement or in the
Schedules to be a duty obligation covenant agreement or undertaking of the
Purchaser shall be and be construed as a duty obligation covenant agreement
and undertaking of the Purchaser's Parent Company and the Purchaser jointly
and severally.
15.7 The guarantees, covenants and agreements contained in this clause 15 shall
be a continuing security and shall not be affected by any time or
indulgence granted by the Purchaser to the Vendor or by the Vendor to the
Purchaser.
15.8 Each reference herein to the Eltrax Guarantor and the Purchaser's Parent
Company shall be deemed to include their respective successors all of whom
shall be bound by the provision hereof
16. CONDITIONS
16.1 This Agreement and Completion are conditional upon the exchange and
completion of the Head Agreement.
16.2 This Agreement shall automatically terminate on the expiry of 6 months from
the date hereof and all rights and obligations of the parties shall save
for accrued rights cease to have effect immediately on such date, unless
before that date the above mentioned condition has been fulfilled.
17. THE PROPERTY
17.1.1 The Purchaser shall after the Completion Date pay the outgoings on the
Property as provided in Clause 9.5 whilst the Property is used for the
purposes
of the Business or by the Purchaser as set out in Clause 9.5 as
aforesaid and the Purchaser's Parent Company shall pay to the Vendor
one half of such outgoings incurred and paid by the Vendor thereafter.
For the avoidance of doubt outgoings as referred to in this clause
17.1.1 shall not include any sum payable to the Landlord on a
surrender of the Lease which shall be dealt with in accordance with
clause 17.5.
17.1.2 All rentals or other payments and periodic payments receivable in respect
of the Property whilst it is used for the purposes of the Business or by
the Purchaser as aforesaid after the Completion Date shall belong to and be
payable to the Purchaser but after the Property ceases to be used for the
purposes of the Business or by the Purchaser as set out in Clause 9.5 as
aforesaid all such rentals or other payments and periodic payments and any
other benefits including premiums receivable on an assignment, sub-letting
or surrender of the Lease shall be shared equally between the Vendor and
the Purchaser.
17.2 The Purchaser's Parent Company shall be entitled at any time to require the
Vendor to use its best endeavours to surrender or assign the Lease on terms
acceptable to both parties and, in the case of an assignment, to obtain the
consent of the Landlord to the same.
17.3 The Vendor shall give full particulars to the Purchaser's Parent Company in
respect of any claim arising under this clause 17 or of any notice
direction order or proposal for a notice direction or order made given or
issued in respect of the Property by the Landlord, any government
department or local or public authority as soon as practicable after the
same has come to its knowledge and shall supply a copy of the same to the
Purchaser's Parent Company. Subject to clause 17.7 below, the Vendor shall
without delay and at the Vendor's own cost take all necessary steps to
comply with, avoid, resist or compromise the same and also at the request
of the Purchaser's Parent Company make such objections or representations
relating to the same as the Purchaser's Parent Company shall acting
reasonably deem expedient PROVIDED THAT, save where the notice direction
order or proposal for the same has been made given or issued as a result of
any act or default solely of the Vendor or anyone else at the Property with
the Vendor's authority (except the Purchaser or any associated company of
the Purchaser), the Purchaser's Parent Company shall indemnify the Vendor
against one half of the amount of any claim or demand made against the
Vendor and paid by the Vendor in respect of the Property including but not
exclusively in the event that the Lease is assigned any claim or demand by
the Landlord if the Assignee fails to comply with the terms of the Lease
17.4 The Vendor shall not do or permit or suffer any person to do anything on or
in relation to the Property which would or might cause it to be in breach
of any covenants or conditions attaching to the Property whatsoever and
which could result in a notice direction order claim or demand being made.
17.5 Subject to the Proviso hereto if the Lease is surrendered to the Landlord
after Completion then the Purchaser's Parent Company hereby indemnifies the
Vendor against one half of any sum payable to the Landlord to effect such
surrender PROVIDED THAT before agreeing such surrender with the Landlord
the Vendor shall obtain the prior written approval of the Purchaser's
Parent Company of the amount of any payment or premium to be paid to the
Landlord on such surrender.
17.6 The Purchaser's Parent Company shall pay to the Vendor one half of the
proper and reasonable costs including but not exclusively solicitors' costs
land agents' costs and the Landlords' costs after Completion Date and
referable to the matters set out in Clauses 17.2 and 17.3
17.7.1 The Vendor shall indemnify the Purchaser and the Purchaser's Parent
Company against any claim brought by the Landlord as a result of any breach
of the Vendor's obligations as to repair and decoration contained in the
Lease committed prior to Completion and the parties hereby agree that the
state of repair of the Property as at the date of Completion is as
evidenced by the schedule of condition annexed at Schedule 8 hereof
17.7.2 The Purchaser's Parent Company shall indemnify the Vendor against any
claim brought by the Landlord as a result of any breach of the Vendor's
obligations as to repair and decoration contained in the Lease committed by
the Purchaser after Completion but prior to the date on which the Property
ceases to be used for the purposes of the Business or by the Purchaser as
set out in Clause 9 as aforesaid and the parties hereby agree that a new
schedule of condition ("New Schedule of Condition") evidencing the state of
condition of the Property as at the date the Property ceases to be used for
the purposes of the Business or by the Purchaser as aforesaid shall be
prepared and agreed within 7 days of the date the Property ceases to be
used for the purposes of the Business or by the Purchaser as aforesaid and,
in default of agreement within those 7 days, the Vendor and the Purchaser's
Parent Company shall be entitled to refer the matter for final settlement
to a firm of chartered surveyors nominated jointly by the Vendor and the
Purchaser's Parent Company or, failing such nomination within 7 days after
a request by either the Vendor or the Purchaser's Parent Company, nominated
at the request of either of them by the President of the Royal Institute of
Chartered Surveyors. In making their determination, the surveyor shall act
as expert and not arbitrator, his decision shall (in the absence of
manifest error) be final and binding on the Vendor and the Purchaser's
Parent Company and his fees shall be borne and paid by the Vendor and the
Purchaser's Parent Company in such proportions as the surveyor shall
determine.
17.7.3 In the event of a claim being brought by the Landlord as a result of any
breach of the Vendor's obligations as to repair and decoration contained in
the Lease committed after the date the Property ceases to be used for the
purposes of the Business or by the Purchaser as aforesaid the parties
hereby agree that the costs of any such claim shall be borne by them
equally and that in determining
the state of repair of the Property as at the date the Property ceases to
be used for the purposes of the Business the parties shall make reference
to the New Schedule of Condition.
18. GENERALLY
18.1 Except as required by law no announcements of the terms of this Agreement
shall be made by any party without the consent of the others and pending
any agreed announcement each party shall use its best endeavours to keep
the same confidential
18.2 The exercise of or the failure to exercise any right (including a right of
rescission) conferred on any party by this Agreement shall not constitute a
waiver of that or any other right or remedy available to that party
18.3.If any provision of this Agreement is held by any competent authority to
be invalid or unenforceable in whole or in part this Agreement shall
continue to be valid as to its other provisions and the remainder of the
affected provision
18.4 This Agreement shall be governed by and construed in accordance with
English law and the parties irrevocably submit to the exclusive
jurisdiction of the English Courts and waive any objection to proceedings
in such courts on grounds of venue or on the grounds that proceedings have
been brought in an inconvenient forum
18.5 All obligations which remain to be performed after the date of Completion
shall continue in full force and effect notwithstanding Completion and
shall not merge in the assurance to the Purchaser
18.6 This Agreement shall be binding upon and enure for the benefit of the
successors of the parties but shall not be assignable, save that the
Purchaser may at any time assign all or any part of the Assets
18.7 This Agreement, together with any documents referred to in it, constitutes
the whole agreement between the parties relating to its subject matter and
supersedes and extinguishes any prior drafts, agreements, undertakings,
representations, warranties, assurances and arrangements of any nature,
whether in writing or oral, relating to such subject matter
18.8 The Purchaser acknowledges that it has not been induced to enter into this
Agreement by any representation, warranty, promise or assurance by the
Vendor or any other person save for those contained in this Agreement. The
Purchaser agrees that (except in respect of fraud) it shall have no right
or remedy in respect of any representation, warranty, promise or assurance
save for those contained in this Agreement
18.9 No variation of this Agreement shall be effective unless made in writing
and signed by each of the parties
18.10Each party shall bear its own costs arising out of or in connection with
the preparation, negotiation and implementation of this Agreement
18.11This Agreement may be executed in any number of counterparts or duplicates
each of which shall be an original but such counterparts or duplicates
shall together constitute one and the same agreement.
19. NOTICES
All notices to be given under this agreement shall be in writing and shall
either be delivered personally or sent by first class or airmail pre-paid post
or by facsimile transmission and shall be deemed duly served: 19.1 in the case
of a notice delivered personally, at the time of delivery;
19.2 in the case of a notice sent inland by first class pre-paid post, two clear
business days after the date of dispatch;
19.3 in the case of a notice sent overseas by airmail, 7 business days (being
business days in the place to which the notice is dispatched) after the
date of dispatch; and
19.4 in the case of a facsimile transmission, if sent during normal business
hours then at the time of transmission and if sent outside normal business
hours then on the next following business day provided (in each case) that
a confirmatory cop is sent by first class pre-paid or by hand by the end of
the next business day.
Each notice shall be addressed to the address of the party concerned set out in
this agreement or to such other address as that party shall have previously
notified to the sender.
(a) If to Vendor, addressed as follows:
Eltrax UK Limited
c/o Ormerods
Green Dragon House
▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Ormerods
Green Dragon House
▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(b) If to Purchaser, addressed as follows:
AremisSoft Hospitality (UK) Limited
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
with copies to:
▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ Eng ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, U.S.A.
and
▇▇▇▇ ▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co.,
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇.▇.
(c) if to the Eltrax Guarantor, addressed as follows:
Verso Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
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With a copy to
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
(d) if to the Purchaser's Parent Company, addressed as follows:
AremisSoft Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇
With a copy to
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Eng ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇
or to such other individual or address as any party hereto may designate for
itself following the giving of prior written notice as provided herein
AS WITNESS the hands of the Parties the day and year first above written
SCHEDULE 1
(The Warranties)
1. THE VENDOR
1.1. The Vendor is and will at Completion be entitled to enter into this
Agreement with the Purchaser and the Vendor has full power and authority to
sell the Assets to the Purchaser without obtaining the consent of any third
party and the Vendor is and will at Completion be solvent.
1.2 Compliance with the terms of this Agreement, and any document entered into
by the Vendor in accordance with it, does not and will not conflict with or
result in a breach of any of the provisions of the Vendor's Memorandum
and/or Articles of Association.
1.3 The Vendor has at all times carried on the Business in all respects in
accordance with its Memorandum and Articles of Association for the time
being in force and any other documents to which it is or has been a party.
1.4. The Vendor has not disposed of or agreed to dispose of or granted or agreed
to grant any security or other encumbrance in respect of any of the Assets
and the Vendor shall sell the Assets to the Purchaser with full title
guarantee free from all charges liens and encumbrances
2. ACCOUNTS
2.1 The Accounts have been prepared in accordance with the requirements of all
relevant statutes and generally accepted accounting principles consistently
applied comply with all current standard statements of accountancy practice
applicable to a United Kingdom company and show a true and fair view of the
state of affairs of the Vendor at the Accounting Date and the profits or
losses for the period ended on such date
2.2 To the extent required by the Companies Act 1985 and the relevant SSAPs
proper provision or reserve has been made in the Accounts for all
liabilities and capital commitments of the Company outstanding at the
Accounting Date whether contingent quantified disputed or not and the
Accounts are not affected by any unusual or non-recurring item (as relate
to the Business)
2.3 For the purposes of the Accounts the Company's assets have been valued on
bases in all material respects consistent with those adopted for the
purpose of the audited accounts of the Company in respect of the beginning
and end of each of the last three preceding accounting periods and the
bases and policies of accounting of the Company adopted for the purpose of
preparing the Accounts are the same as those adopted for the purpose of
preparing the audited accounts for such periods
2.4 The Management Accounts have been prepared in accordance with generally
accepted accounting principles and reflect a true and fair view of the
state of affairs of the Business and truly and fairly disclose all Assets
and the Agreed Liabilities of the Business at the date to which they relate
and apply bases and policies of accounting which have been consistently
applied in the Accounts (save that such Management Accounts have not been
audited) and there have been no material changes and no material
deterioration in the financial position of the Company since the Balance
Sheet Date other than as disclosed in the Management Accounts and no
extraordinary items have occurred during the periods between the date of
the Management Accounts and Completion and that between the date of the
Management Accounts and Completion the Vendor has carried on and will carry
on (if this Agreement is entered into on a date prior to Completion Date)
the Business in accordance with all the provisions contained in Clause 7.1.
3. VENDOR'S BOOKS AND RECORDS
--------------------------
All of the Vendor's accounts books ledgers financial and other records of every
kind relating to the Business have been fully and accurately maintained in
accordance with generally accepted accounting practices and standards and there
are no material inaccuracies or discrepancies of any kind contained or reflected
in them or in any of them in relation to its plant machinery and other fixed
assets debtors creditors stock-in-trade work-in-progress and other current
assets of the Business (including without prejudice to the generality the
Assets, the Equipment, the Debts and the Stock) and liabilities (including the
Agreed Liabilities and the Liabilities) in relation to the Business and will be
fully written up to the date of Completion
4. CONSEQUENCE OF ACQUISITION OF THE BUSINESS BY THE PURCHASER
The acquisition of the Business and/or the Assets by the Purchaser or compliance
with the terms of this Agreement will not:
4.1 (so far as the Vendor is aware without having made enquiry of such
following persons) cause any person who normally does business with the
Business not to continue to do so on the same basis as previously
4.2 relieve any person of any contractual obligation to the Business or the
Vendor in respect of the Business or enable any person to determine any
such obligation enjoyed by the Business
4.3 give rise to or cause to become exercisable any right of pre-emption
relating to the Business or any of the Assets nor
4.4 result in a breach of or constitute a default under (i) the terms
conditions or provisions of any agreement or instrument or (ii) any order
judgment or decree of any court or governmental agency to which the Vendor
is a party or by which the Vendor is bound in relation to the Business
and to the best of the knowledge and belief of the Vendor (without having
made enquiry of the customers) the relationship of the Business with
clients customers suppliers and employees will not be adversely affected by
the execution completion and/or implementation of this Agreement
5. THE ASSETS
5.1 Ownership of Assets
5.1.1 the Vendor owns absolutely at Completion all the Assets;
5.1.2 the Vendor has not agreed to dispose of or granted or agreed to grant
any security or other encumbrance in respect of any of the Assets.
5.2 Assets sufficient for the Business
5.2.1 the Assets comprise all assets now used in the Business and which are
necessary for the continuation of the Business now carried on;
5.2.2 the stocks are sufficient for the normal requirements of the
Business;
5.2.3 the work in progress included in the stocks is at its normal level
having regard to current orders included in the Customer Contracts
and to orders reasonable anticipated from customers of the Business;
5.2.4 the stocks of all materials, packaging materials and finished goods
included in the stocks are not excessive and are adequate in relation
to the current trading requirements of the Business;
5.3 Equipment
---------
5.3.1 Appendix 2 contains full and accurate details of the Equipment;
5.3.2 the Equipment, Motor Vehicles and other equipment :-
(a) are in a proper state of repair and condition and satisfactory
working order;
(b) have been regularly and properly maintained;
(c) are adequate for and not surplus to the requirements of the
business; and
(d) would not be expected (if the sale of the with in Business did
not take place) to require replacements or additions at a cost in
excess of(pound)5,000 within the period of six months after the
Completion;
5.4 Stock
5.4.1 the Stock is of satisfactory quality and saleable at normal selling
prices.
5.4.2 none of the Stock is obsolete, unusable, unmarketable or
inappropriate or of limited nature in relation to the Business and
none of the Customer Contracts is likely to result in this being
untrue.
5.5 Document Stamps
All documents which in any way effect the right, title or interest of the
Vendor in or to any of the assets and which attract stamp duty have been
duly stamped within the requisite period for stamping.
5.6 None of the Assets is subject to any option lien or encumbrances or any
agreement or commitment to give or create any of the foregoing and the
Assets are the sole unencumbered absolute property of the Vendor
5.7 There has been no exercise purported exercise or claim for any charge lien
encumbrance or equity over any of the Assets and there is no dispute
directly or indirectly relating to any of the Assets
5.8 The Vendor has not purchased any of the Assets on terms that property in
them does not pass until full payment is made by it to the seller
6. TRADING
6.1 Business and Financial Position
6.1.1 since the Accounting Date:-
(a) the Business has been continued in the normal course as regards
its nature, extent and manner of carrying it on;
(b) neither the turnover nor the financial or trading business of the
Business has deteriorated;
(c) the Vendor has not borrowed or raised any money or taken any
financial facility in relation to the Business except for the
overdraft facilities from its bankers specified in the
Disclosures;
(d) the Vendor has paid the Creditors of the business in accordance
with their respect credit terms and there are no amounts owing by
the Vendor which have been due for more than six weeks.
6.1.2 so far as the Vendor is aware the trading prospects of the Business
have not been adversely effected as a result of any event or
circumstance which has arisen since the Accounting Date;
6.1.3 since the Accounting Date the Vendor has not done or omitted to do
anything which might prejudice or affect the Goodwill.
6.2 Existing Suppliers and Customers
6.2.1 so far as the Vendor is aware (not having made any enquiries in
respect of future intentions):-
(a) no supplier of the Business has, in the past three years, ceased
or (as a result of the acquisition of the Business by the
Purchaser or for any other reason) will cease supplying the
Business or may substantially reduce its supplies to the
Business;
(b) no customer of the Business has, in the past three years,
terminated or materially reduced, or will (as a result of the
acquisition of the Business by the Purchaser or for any other
reason) terminate or materially reduce, its relationship with the
Business.
6.3 Licences and Consents
6.3.1 the Vendor has obtained all necessary licences and consents for the
proper carrying on of the Business and is not in breach of any of
their terms or conditions;
6.3.2 details of all of the licences and consents are set out in the
Disclosures and the Vendor knows of no reason why they should not be
capable of being transferred or obtained by the Purchaser without the
necessity for any special arrangement or expense.
6.4 Insurance
6.4.1 all the Assets of an insurable nature are and have at all material
times been insured in amounts representing the full replacement or
reinstatement value of them against fire and other risks normally
insured against by a person carrying on business of the same class as
the Business;
6.4.2 all insurances relating to the Business and the Assets are currently
in full force and effect and nothing has been done or omitted to be
done which could make any policy of insurance void or voidable;
6.4.3 subject to any provision in the Management Accounts the Debts at the
date hereof will realise their full face value and be good and
collectable in the ordinary course of business
6.5 Joint Ventures
6.5.1 The Vendor
6.5.1.1. is not and has not been a party to any joint venture or
consortium or any partnership arrangements or agreement
or any agreement or arrangement for sharing commissions
or other income related to the Business;
6.5.1.2 does not conduct and has not conducted any part of the
Business through a branch, agency or permanent establishment
outside the UK.
6.6 Agreements concerning the Business
6.6.1 there have been no arrangements and understandings (whether legally
enforceable or not) between the Vendor and any person who is,
directly or indirectly, a shareholder or the beneficial owner of any
interest in the Vendor or any company in which the Vendor is
interested relating to the management of the Business or the
ownership or transfer of the ownership or the letting of any of the
Assets or the provision of finance, goods, services or other
facilities to or by the Vendor or otherwise in any way relating to
the Business or the Assets.
6.6.2 the Vendor has not been a party to any agency, distributorship,
marketing, purchasing, manufacturing or licensing agreement or
arrangement or any restrictive trade or other agreement or
arrangement pursuant to which any part of the Business has been
carried on or which in any way has restricted its freedom to carry
on the whole or any part of the Business or to use or exploit any of
the assets in any part of the world in such manner as it thought fit.
6.6.3 compliance with the terms of this Agreement does not and will not
conflict with, result in the breach of or constitute, or fall within
any of the terms, conditions or provisions of any agreement or
instrument to which the Vendor is now a party.
7. MATERIAL CONTRACTS
The Vendor is not in relation to the Business and/or the Assets a party to or
subject to any legally binding agreement transaction obligation commitment
arrangement or liability which is material in terms of the trading or financial
position of the Business which:
7.1 is incapable of complete performance in accordance with its terms within 6
months after the date on which it was entered into or undertaken or
7.2 is known by the Vendor to have been likely to result in a loss to the
Vendor on completion of performance if the Vendor had not sold the Business
pursuant to this Agreement or
7.3 subject to force majeure could not readily be fulfilled or performed by the
Vendor on time and without undue or unusual expenditure of money and effort
if the Business was not sold or
7.4 other than in respect of work carried out between the exchange of a
contract and completion of that contract is a contract under which payment
has already
been received by the Vendor but which requires the performance of services
by the Purchaser after the date of Completion or
7.5 involves or is likely to involve obligations restrictions expenditure or
receipts of an unusual onerous or exceptional nature and not in the
ordinary course of the Business or
7.6 other than normal leasing agreements in respect of Motor Vehicles and
office equipment is a lease loan agreement debenture guarantee or indemnity
or a letter of credit or a contract for hire or rent hire purchase or
purchase by way of credit sale or periodical payment or
6.7 involves or is likely to involve the supply of services by the Vendor the
aggregate value of which will represent in excess of 10% of the turnover
for the last accounting period of the Vendor or
7.8 will require the Purchaser to pay any commission finder's fees royalty or
similar payment or
7.9 in any way restricts the Vendor's freedom to carry on the whole or any part
of the Business in any part of the United Kingdom or elsewhere in such
manner as it thinks fit
8. THE BUSINESS CONTRACTS
8.1 Disclosure of contracts
The Business Contracts, the Computer Software Licenses, the Computer
Systems Agreements, the Customer Contracts and the Lease Contracts
(together referred to in this clause as "the Contracts") constitute all the
contracts and other engagements, whether written or oral referable to the
Business to which the Vendor is now a party, apart from the contracts of
employment of the employees and the Lease which is excluded from the sale
and purchase hereby agreed.
8.2 Nature of contracts
None of the Contracts:
8.2.1 is of an unusual, abnormal or onerous nature;
8.2.2 is for a fixed term of more than six months;
8.2.3 is of a long term nature (that it is say incapable of performance in
accordance with its terms within six months after the date which it
was entered into or undertaken);
8.2.4 is incapable of termination in accordance with its terms by the
Purchaser on 60 days' notice or less;
8.2.5 is of a loss making nature (that is to say known to have been likely
to result in a loss to the Vendor on completion of performance if the
Vendor had not sold the Business);
8.2.6 is not capable of being readily fulfilled or performed by the
Purchaser on time without undue or unusual expenditure of money or
personnel;
8.2.7 will involve payment by the Purchaser by reference to fluctuations in
the index of retail prices;
8.2.8 was entered into in any way otherwise than in the normal course of
Business.
8.3 The Vendor is not nor (to the best of its knowledge and belief) will it
with the lapse of time become:
8.3.1 in default under any of the Contracts or in respect of any other
obligations or restrictions binding upon it in relation to the
Business nor has it waived any rights or privileges under any of
them;
8.3.2 in default under any provisions existing by reason of membership of
any association or body relating to the Business;
8.3.3 liable in respect of any representation or warranty (whether express
or implied) or matter giving rise to a duty of care on the part of
the Vendor relating to the Business.
8.4 No threat or claim of default under the Contracts and/or the Assets has
been made and is outstanding against the Vendor and there is nothing
whereby any of the Contracts may be terminated or rescinded by any other
party or whereby the terms of them may be worsened or the Business and/or
the Assets prejudiced as a result of anything done or omitted or permitted
to be done by the Vendor
8.5 Neither the Vendor nor any other party to any agreement with the Vendor is
in default under such agreement being a default which would be material in
the context of the financial or trading position of the Business or in the
context of its Assets nor (as far as the Vendor is aware) are there any
circumstances likely to give rise to such a default
8.7 Subject to any provision in the Management Accounts the Vendor has not
manufactured or sold products which were or are or will become in any
material respect faulty or defective or which did not or do not comply in
any material respect with any warranties or representations expressly or
impliedly made by the Vendor or with all applicable laws regulations
standards and requirements
9. EMPLOYEES
9.1 Full and accurate details in all material respects have been supplied and
are annexed as Schedule 2 to this Agreement as to the Transferring
Employees' ages length of service rates of remuneration, bonus and
commission, benefits in kind, periods of notice, pension and other rights
under any retirement benefits life assurance or hospital insurance scheme
of the Vendor. Such details will remain true and accurate at Completion and
the Vendor is not under any legal or moral commitment to change or vary any
of such details and will not prior to Completion enter into any such
commitment. The information contained in the Second Schedule is true and
correct in all material respects. There are no stock option or other
schemes either in operation or proposed whereby any of the Transferring
Employees is or is to be entitled to any shares of the Vendor or the
Vendor's Group or to any commission or remuneration of any sort calculated
by reference to the turnover profit or sales of the Vendor or the Vendor's
Group
9.2 No liability has been incurred by the Vendor and not yet been discharged
for breach of any contract of service or employment or for redundancy
payments (including protective awards) or for damages or compensation for
wrongful dismissal or unfair dismissal or otherwise or for failure to
comply with any order for reinstatement or re-engagement of any
Transferring Employee engaged in connection with the Business or for the
actual or proposed termination or suspension of employment or variation of
any contract of employment of any present or former director or employee of
the Vendor employed in connection with the Business
9.3 There are not in existence any contracts of employment between the Vendor
and any of the Transferring Employees nor any consultancy agreements
between the Vendor and any of the Transferring Employees which cannot be
terminated by 3 months' notice or less or (where not reduced in writing) by
reasonable notice without giving rise to any claim for damages or
compensation (other than a statutory redundancy payment or statutory
compensation for unfair dismissal). The Vendor has not given nor received
any notice to terminate any contract of employment of any of the
Transferring Employees or any other person employed in the Business which
expires on or after the date of Completion
9.4 The Vendor has not offered and will not prior to Completion offer a
contract of employment or for services to any person to be employed in the
Business or as a consultant to the Business
9.5 Since the Accounting Date no change has been made in the rate of
remuneration, emolument, pension benefit or other terms of employment of
any of the employees.
9.6 No negotiations for any increase in the remuneration or benefits of any of
the employees are currently or likely within a period of 6 months after
Completion.
10. POWERS OF ATTORNEY
The Vendor has not given any power of attorney or other authority (express
implied or ostensible) which is still outstanding or effective to any person to
enter into any contract or commitment on its behalf in relation to the Business
11. STATUTORY REQUIREMENTS
11.1 At the date of this Agreement the Vendor is conducting the Business in all
material respects in accordance with all applicable laws and regulations
11.2 At the date of this Agreement the Vendor is not party to any agreement or
arrangement which infringes or is registrable unenforceable or void or
which renders the Vendor liable to civil or criminal proceedings by virtue
of any restrictive trade practice, competition or unfair trading
legislation which would have a material adverse effect on the Business
12. LITIGATION
12.1 All licences permits consents registrations permission and approvals
required for carrying on the Business now being carried on by the Vendor
have been obtained and are in full force and effect and all reports returns
and information required by law or as a condition of any licence permit
consent registration permission or approval to be made or given to any
person or authority in connection with the Business have been made or given
to the appropriate person or authority and so far as the Vendor is aware
there is no circumstance which indicates that any licence permit consent
registration permission or approval is capable of being revoked or not
renewed
12.2 The Vendor is not engaged in any litigation or arbitration criminal or
administrative proceeding whether as plaintiff defendant or otherwise and
no such proceedings by or against the Vendor in relation to the Business or
Assets or in respect of any of its assets has been threatened or is to the
best of the Vendor's knowledge and belief pending or expected and to the
best of the Vendor's knowledge and belief there is no fact or circumstance
which could give rise to any such proceedings
12.3 The Vendor is not a party or subject to the provisions of any judgment or
judicial order or decree whether or not contested or subject to appeal in
relation to the Business
12.4 The Vendor has not and to the best of the Vendor's knowledge and belief is
not alleged to have committed or is alleged to be liable for any criminal
illegal unlawful ultra ▇▇▇▇▇ or statutory duty
13. INTELLECTUAL PROPERTY
13.1 The Vendor is the beneficial owner, registered proprietor or Licensee of
the
Intellectual Property Rights.
13.2 To the best of the Vendor's knowledge, information and belief, each of the
Intellectual Property Rights is valid and enforceable and no act has been
done or omitted whereby any of them ceased or might cease to be valid or
enforceable.
13.3 The Business does not and is not likely to infringe any patent, registered
design, trademark, copyright or other intellectual property right of any
other person (or would not do so if the same were valid) or give rise to
any liability to pay compensation pursuant to the Patents Act 1977 sections
40 and 41.
13.4 The Vendor does not require and has not been granted any licence in
relation to any Intellectual Property.
13.5 No right has been granted to any person to do anything which would or might
otherwise infringe any of the Intellectual Property Rights.
13.6 The Vendor has not (except in the normal course of Business) disclosed or
permitted to be disclosed or undertaken or arranged to disclose to any
person other than the Purchaser any of its know-how, trade secrets,
confidential information, price lists or lists of customers or suppliers
relating to the Business.
14. PROPERTY
14.1 Encumbrances:-
14.1.1 save as specifically stated in Schedule 5 the Property is free from
any mortgage, debenture, charge, lien or other encumbrance;
14.1.2 the Property is not subject to any outgoings other than business
rates, water rates and insurance premiums, rent and service charge;
14.1.3 the Property is not subject to any restrictive covenants,
restrictions, stipulations, easements, profits a prendre, wayleaves,
licences, grants or reservations or other similar rights vested in
the third parties;
14.1.4 where any of the third party rights referred to in clause 14.1.3
have been disclosed in the disclosures, they have been fully
observed and performed and any payments in respect of them due and
payable have been duly paid.
14.2 Planning matters:-
14.2.1 the use of the Property for the purposes of the Business is the
permitted use for the purposes of the Planning Acts;
14.2.2 planning permission has been obtained or is deemed to have been
granted for the purposes of the Planning Acts with respect to the
development of the Property, no permission has been suspended or
called in and no application for planning permission is awaiting
decision;
14.2.3 building regulation consents have been obtained with respect to the
development of the Property and any alterations and improvements
to it;
14.2.4 the Vendor has complied with and is still complying in all respect
with:-
14.2.4.1 planning permissions, orders and regulations issued under the
Planning Acts and building regulation consents and bye laws
for the time being in force with respect to the Property; and
14.2.4.2 all agreements under the Town and Country Planning Act 1971
Section 52 or under the Highways Act 1980 Section 38 all
planning obligations undertaken under the Town and Country
Planning Act 1990 Section 106 made in respect of the
Property.
14.2.5 the Property is not listed as being of special, historical,
architectural importance or is located in a conservation area.
14.2.6 all claims and liabilities under the Planning Acts or any other
legislation have been discharged and no claim or liability,
contingent or otherwise is outstanding.
14.3 Statutory obligations
14.3.1 the Vendor has complied with and is complying with all applicable
statutory and bye law requirements with respect to the Property.
14.3.2 there is no outstanding and unobserved or unperformed obligation in
respect of the Property necessary to comply with the requirements
whether formal or informal, competent authority exercising statutory
or delegated powers.
14.4 Adverse orders
14.4.1 there are no compulsory purchase notices, orders or resolutions
affecting the Property and there are no circumstances likely to lead
to any being made.
14.4.2 there are no closing, demolition or clearance order, enforcement
notices or stop notices affecting the Property and there are no
circumstances likely to lead to any being made.
14.5 Leasehold Property:-
14.5.1 the Vendor has paid the rent and observed and performed the
covenants on the part of the Tenant and the conditions contained in
the Lease and the last demand (or receipt for rent if issued) was
unqualified
14.5.2 all licences consents and approvals required from the Landlord and
any superior Landlord under the Lease have been obtained and the
covenants on the part of the Tenant contained in the licences,
consents and approvals have been duly performed and observed
14.5.3 there are no rent reviews under the Lease or any superior lease in
progress.
14.5.4 there is no outstanding and unobserved or unperformed any obligation
necessary to comply with any notice or other requirements given by
the Landlord or any superior landlord under the Lease or any
superior lease.
14.5.5 there is no obligation to reinstatement of the leasehold Property by
removing or dismantling any alteration made to it by the Vendor and
any predecessor entitled to the Vendor.
15. GUARANTEES AND WARRANTIES
The Vendor has not given any guarantee indemnity or warranty or made any
representation in respect of any products or services sold or supplied or
contracted to be sold or supplied by it or in respect of any other aspect of the
Business save for any guarantee indemnity or warranty implied by law and (save
as aforesaid) has not accepted any liability or obligation to service repair
maintain take back or otherwise do or not do anything in respect of any products
or services that would apply after any such products or services have been
delivered or supplied by it in connection with the Business
16. MATERIAL INFORMATION
16.1 To the best of the Vendor's knowledge information and belief there is:
16.1.1 no fact or matter material to the value of the Assets or materially
affecting the aggregate value of such Assets and
16.1.2 no fact or matter materially affecting the trading of the Business
which has not been disclosed to the Purchaser and the disclosure of
which might reasonably be expected materially to affect the
willingness of the Purchaser to purchase such Assets at the
aggregate price or the terms
upon which the purchase is made(on the basis that the Purchaser will
use such Assets for the purpose of carrying on the Business and for
the purposes of Clause 16.1 the aggregate of any claims under this
warranty which total less than (pound)5,000 shall not be considered
material
16.2 The information contained in the recitals and the schedules to this
Agreement and the Disclosure Letter and all other information in writing
given by the Vendor and or the Vendor's Solicitors in the responses to the
questionnaire submitted by the Purchaser's Solicitors (including the
annotations by the Vendor on such questionnaire) and the responses by the
Vendor's Solicitors to the Purchaser's Solicitors property enquiries was
when given is at the date hereof and will at Completion remain true
complete and accurate in all material respects and to the best of its
knowledge and belief the Vendor is not aware of any fact or matter not in
the public domain in relation to the Business which renders any such
information untrue incomplete inaccurate or misleading
SCHEDULE 2
PART 1
(Transferring Employees)
See attached documents
PART 2
(Excluded Employees (if any))
None
SCHEDULE 3
(Agreed Liabilities)
(See attached list)
SCHEDULE 4
----------
(Debts)
(See attached list)
SCHEDULE 5
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(The Property)
Leasehold interest in Suite 2, Metropolitan House, ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
under Lease dated 25 November 1987
SCHEDULE 6
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(Consideration)
The Goodwill: (pound)
The Business Contracts: (pound)
The Equipment
The Computer Software Licences (pound)
The Stock
The Intellectual Property Rights (pound)
The Computer Systems and the
Computer Systems Agreements (pound)
The Motor Vehicles (pound)
Cash (pound) See Clause 11
The parties have agreed not to apportion the Consideration
SCHEDULE 7
The Financial liability of the Vendor in relation to the Warranties shall be
governed by the terms of the Head Agreement.
SCHEDULE 8
(Schedule of Condition to be annexed)
EXECUTED by )
for and on behalf of ELTRAX UK )
LIMITED in the presence )
of:- )
EXECUTED by )
for and on behalf of )
AREMISSOFT HOSPITALITY )
(UK) LIMITED in the presence of:- )
EXECUTED by )
for and on behalf of VERSO )
TECHNOLOGIES, INC. (formerly Eltrax )
Systems, Inc.) in the presence of:- )
EXECUTED by )
For and on behalf of AREMISSOFT )
CORPORATION. in the presence of:- )