EXHIBIT 7
THIS AGREEMENT is made on 30 December 2002:
BETWEEN:
1. REGUS MANAGEMENT LIMITED, a company incorporated in England under
registered number 2307313 whose registered office is at 3000 Hillswood
Drive, Hillswood Business Park, Chertsey, Surrey KT16 0RS ("RML");
2. REGUS BUSINESS CENTRE BV, a company incorporated under the laws of The
Netherlands of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (with registered no. 220.483)("BV");
3. REGUS PLC, a company incorporated in England under registered number
3548821 whose registered office is at 3000 Hillswood
Drive, Hillswood Business Park, Chertsey, Surrey ▇▇▇▇ ▇▇▇ ("PLC");
4. ▇▇▇ 2002 Limited a company incorporated in England under registered
number 4619936 whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ("the Purchaser"); and
5. REGUS HOLDINGS (UK) LIMITED, a company incorporated in England under
registered number 4560622 whose registered office is at 3000 Hillswood
Drive, Hillswood Business Park, Chertsey, Surrey KT16 ORS (the
"Company").
WHEREAS:
(A) The Shareholders (as defined in this agreement) have agreed to operate
the Company as a joint venture company for the purpose of owning and
operating a serviced commercial offices business in the United Kingdom
under the "Regus" brand.
(B) The Shareholders, the Company and PLC have agreed to enter into this
agreement for the purpose of regulating the management of the Company,
their relationship with each other and certain aspects of the affairs
of, and their dealings with, the Company.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this agreement:
"Accounting Period" means the period commencing on 1
January in any year and ending on 31
December in the same year or such other
accounting period as may be adopted by
the Company in accordance with clause 9
(Reserved matters);
"Affiliate" in relation to a body corporate means
any other body corporate over which that
body corporate has Control;
"Alchemy" means Alchemy Partners (Guernsey)
Limited;
"Alchemy Partners" means Alchemy Partners LLP;
"Articles of Association" means the articles of association of
the Company in the form set out in
schedule 2 or, if the articles of
association of the Company are amended
or replaced in accordance with clause 9
(Reserved matters), the articles of
association of the Company as so amended
or replaced;
"Board of Directors" means the board of directors of the
Company;
"Business" means the business activities described
in clause 2 (Business of the Company)
or, if the business of the Company is
altered in accordance with clause 9
(Reserved matters), the business of the
Company as so altered;
"Business Day" means a day (other than a Saturday
or Sunday) on which banks are open for
business (other than solely for trading
and settlement in euro) in London;
"Business Plan" means the initial business plan
referred to in clause 7.1 (First
Business Plan) and any subsequent or
amended business plan adopted by the
Company in accordance with clause 7
(Adoption of Business Plan);
"Chairman" means the chairman of the Board of
Directors;
"Companies Acts" means Companies ▇▇▇ ▇▇▇▇, the Companies
Consolidation (Consequential
Provisions) ▇▇▇ ▇▇▇▇, the Companies ▇▇▇
▇▇▇▇ and Part V of the Criminal Justice
▇▇▇ ▇▇▇▇;
"Control" in relation to a body corporate means
the ability of a person to ensure that
the activities and business of that
body corporate are conducted in
accordance with the wishes of that
person and a person shall be deemed to
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have Control of a body corporate if
that person possesses or is entitled to
acquire the majority of the issued
share capital or the voting rights in
that body corporate or the right to
receive the majority of the income of
that body corporate on any distribution
by it of all of its income or the
majority of its assets on a winding up;
"Directors" means the directors of the Company;
"Disposal" in relation to a Share means:
(i) a sale, assignment or transfer;
(ii) creating or permitting to subsist
any pledge, charge, mortgage, lien or
other security interest or encumbrance;
(iii) creating any trust or conferring
any interest;
(iv) any agreement, arrangement or
understanding in respect of votes or the
right to receive dividends;
(v) the renunciation or assignment of
any right to subscribe or receive a
Share or any legal or beneficial
interest in a Share;
(vi) any agreement to do any of the
above, except an agreement to transfer
Shares which is conditional on
compliance with the terms of this
agreement; and
(vii) the transmission of a Share by
operation of law;
"Event of Default" has the meaning set out in clause 17.1
(Events of Default);
"Group" means:
(A) in relation to any Regus
Shareholder, its subsidiaries and
subsidiary undertakings or (where
it has a holding company) that
holding company and the
subsidiaries and subsidiary
undertakings of that holding
company; and
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(B) in relation to the Purchaser, its
subsidiaries and subsidiary
undertakings, Silverstone
Limited and its subsidiaries and
subsidiary undertakings, and any
holding company of any of the
foregoing (other than Alchemy);
"Group Transferee" means a body corporate to whom Shares
have been transferred under clause 13.1
(Transfers within a Group);
"LIBOR" the London Inter-Bank Offered Rate
quoted by Barclays Bank PLC (or,
failing which, such other leading
clearing bank in Lodnon as RML may
nominate) to leading banks in the
London Inter-Bank Sterling Market for
sterling deposits of an amount of
(pound)1,000,000 for a period of six
months;
"Minimum Transfer Condition" has the meaning set out in
clause 14.1(D) (Transfer Notice);
"Offer" has the meaning set out in
clause 14.4(A) (Offer to Shareholders);
"Offered Shares" has the meaning set out in
clause 14.1(A) (Transfer Notice);
"Offeror" has the meaning set out in clause 14.1
(Transfer Notice);
"Offer Period" has the meaning set out in
clause 14.4(A) (Offer to Shareholders);
"Offer Terms" has the meaning set out in
clause 14.1(C) (Transfer Notice);
"Operational Committee" means the committee referred to in
clause 3.1(B);
"Original Holder" in relation to any Group Transferee
means the Shareholder who made the
transfer of the relevant Shares to the
Group Transferee or, in the case of a
series of transfers between Group
Transferees, the Shareholder who made
the initial transfer of the relevant
Shares to a Group Transferee, and the
relevant Shares means the Shares held
by the Group Transferee or any Shares
from which those Shares are derived or
by virtue of which those Shares were
acquired;
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"Prescribed Value" in relation to any Shares means the
value of those Shares determined in
accordance with clause 22 (Prescribed
Value);
"Proposed Transferee" means a person referred to in clause
14.1(B);
"Purchaser" has the meaning set out in
clause 17.2(E) (Compulsory Offer);
"Quarter" means any period of three consecutive
months commencing on 1 January, 1 April,
1 July or 1 October of each
year;
"Regus Brand" means the "Regus Marks" which the
Company and others are permitted to use
under the Regus Brand Agreement between
the Company, Regus (UK) Ltd, Regus
Business Centres (UK) Ltd, Regus City
Limited, Regus Business Services Ltd,
Regus Manchester Ltd and RML, of the
same date as this agreement;
"Regus Brand Agreement" means the agreement referred to in the
definition of "Regus Brand";
"Regus Guarantee" means a guarantee given by any member
of the Remaining Regus Group in respect
of any obligation of any member of the
UK Group;
"Remaining Regus Group" has the meaning given to it in the
Share Purchase Agreement;
"Revised Offer" has the meaning set out in
clause 14.5(D)(i) (Revised offer at
Prescribed Value);
"Revised Offer Period" has the meaning set out in
clause 14.5(D)(i) (Revised offer at
Prescribed Value);
"Regus Shareholder" means either RML, BV, or
any other member of their Group which
holds shares in the Company (as
appropriate) and "Regus Shareholders"
means all of them;
"Services Agreement" has the meaning given to it in the
Share Purchase Agreement;
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"Shareholders" means RML, BV, the Purchaser and any
other person to whom the benefit of this
agreement is extended pursuant to clause
21 (Effect of Deed of Adherence);
"Share Purchase Agreement" means the share purchase and
subscription agreement between the
Company, RML, PLC and the Purchaser of
the same date as this agreement;
"Shares" means ordinary shares in the capital of
the Company;
"Specified Shares" has the meaning set out in clause 17.1
(Events of Default);
"Tag Along Notice" means the notice referred to in clause
14.4(C)(ii);
"Transfer Notice" has the meaning set out in clause 14.1
(Transfer Notice);
"Ultimate Parent Company" in relation to a body corporate means
the body corporate (if any) which is
not itself subject to Control but which
has Control of the first mentioned body
corporate either directly or through a
chain of persons each of which has
Control over the next person in the
chain; and
"Working Hours" means 9.30 a.m. to 5.30 p.m. on a
Business Day.
1.1 Interpretation
In construing this agreement, unless otherwise specified:
(A) references to clauses and schedules are to clauses of, and
schedules to, this agreement;
(B) use of any gender includes the other genders;
(C) references to a "person" shall be construed so as to include
any individual, firm, company or other body corporate,
government, state or agency of a state, local or municipal
authority or government body or any joint venture, association
or partnership (whether or not having separate legal
personality);
(D) a reference to any statute or statutory provision shall be
construed as a reference to the same as it may have been, or
may from time to time be, amended, modified or re-enacted;
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(E) any reference to a "day" (including within the phrase
"Business Day") shall mean a period of 24 hours running from
midnight to midnight;
(F) references to times are to London times;
(G) a reference to any other document referred to in this
agreement is a reference to that other document as amended,
varied, novated or supplemented (other than in breach of the
provisions of this agreement) from time to time;
(H) headings and titles are for convenience only and do not affect
the interpretation of this agreement;
(I) the rule known as the ejusdem generis rule shall not apply and
accordingly general words introduced by the word "other" shall
not be given a restrictive meaning by reason of the fact that
they are preceded by words indicating a particular class of
acts, matters or things;
(J) general words shall not be given a restrictive meaning by
reason of the fact that they are followed by particular
examples intended to be embraced by the general words;
(K) any obligation for a Regus Shareholder (other than RML) to
give notice pursuant to this agreement shall be satisfied if
RML gives that notice on its behalf;
(L) any obligation to give notice to a Regus Shareholder shall be
satisfied if that notice is given to RML; and
(M) the expressions "holding company", "subsidiary" and
"subsidiary undertaking" shall have the meaning given in the
Companies Acts.
1.3 Schedules
The schedules form part of this agreement and shall have the same force
and effect as if expressly set out in the body of this agreement, and
any reference to this agreement shall include the schedules.
2. BUSINESS OF THE COMPANY
Except to the extent that a change in the business of the Company is
approved in accordance with clause 9 (Reserved matters), the business
of the Company shall be to conduct for itself, or by means of
investments in other entities, a serviced commercial offices business
in the United Kingdom under the Regus Brand (unless the Regus Brand
Agreement terminates or is terminated).
3. MANAGEMENT AND MANAGEMENT APPOINTMENTS
3.1 Management
(A) The business of the Company shall be overseen and managed by
the Board of Directors except in relation to those matters
which are required, in accordance with this agreement or by
law, to be decided by the Shareholders.
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(B) The day-to-day management of the Company shall be undertaken
by the Operational Committee subject to the supervision and
direction of the Board of Directors (and, for the avoidance
of doubt, any direction given by the Board of Directors to
the Operational Committee may be amended or revoked at any
time by the Board of Directors). The Board of Directors may
at any time and from time to time circumscribe the powers,
duties and authority of the Operational Committee and
(without prejudice to clause 9.1) require that certain
matters are reserved for the exclusive determination of the
Board of Directors.
(C) No member of the Operational Committee shall effect any
contract between any member of the UK Group and any member of
the Remaining Regus Group without the prior consent of the
Board of Directors.
3.2 Number of Directors
The Board of Directors shall consist of four directors.
3.3 Composition of Board of Directors
RML shall be entitled, by notice in writing to the Company and the
Purchaser, to appoint two Directors from time to time and to remove any
Director so appointed by it from time to time. The Purchaser shall be
entitled, by notice in writing to the Company and RML, to appoint two
Directors from time to time and to remove any Director so appointed by
it from time to time.
3.4 Chairman
The Purchaser shall, for so long as it holds more than 50 per cent of
the Shares from time to time in issue, be entitled, by notice in
writing to the Company and RML, to require that one of the Directors
appointed by it pursuant to sub-clause 3.3 shall act as the Chairman.
The Chairman shall preside at any Directors' meeting and general
meeting of the Company at which he is present.
3.5 Consultation
Each of RML and the Purchaser shall, prior to appointing any person as
a Director, give the other a reasonable opportunity to express any
concern as to his suitability.
3.6 Indemnity
Any Shareholder who removes a Director from office shall indemnify each
other Shareholder and the Company against any claim, whether for
compensation for loss of office, wrongful dismissal or otherwise, which
arises out of that Director ceasing to hold office.
3.7 Alternate Directors
Any Shareholder who has appointed a Director pursuant to sub-clause 3.3
shall be entitled, by notice in writing to the Company and each other
Shareholder, to appoint any person (who may be another Director) as an
alternate director to attend, speak and vote on behalf of that Director
at any one or more meetings of the Directors.
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3.8 Articles of Association
RML, BV and the Purchaser agree that, if the Articles of Association
have not already been adopted by the Company at the date of this
Agreement, they shall procure that the Company adopts the Articles of
Association on the date of this Agreement.
3.9 Directors' Fees
The Purchaser shall be entitled to receive an annual fee of
(pound)55,000 plus VAT, payable quarterly in arrears on 1 January, 1
April, 1 June and 1 September of each year, as payment for the services
of the Directors appointed by it, such fee to increase annually with
effect from 1 January 2004 at a rate equal to the increase in the
Retail Price Index since:
(a) in the case of the first such review - the date of this
agreement; and
(b) in the case of subsequent reviews - the last review.
4. THE OPERATIONAL COMMITTEE
4.1 Composition of Operational Committee
(A) There shall be no more than 3 members of the Operational
Committee.
(B) RML shall be entitled, by notice in writing to the Purchaser
and the Company, to appoint the members of the Operational
Committee from time to time and to remove any such person so
appointed by it from time to time. RML hereby appoints ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as its initial
appointments to the Operational Committee.
(C) The Company shall not remove any member of the Operational
Committee save for incapacity, gross misconduct, incompetence
or absence from duties as a member of the committee for more
than three consecutive months . RML shall be entitled to
replace any member so removed pursuant to paragraph (B).
4.2 Consultation
RML shall, prior to appointing any member of the Operational Committee,
give the Purchaser a reasonable opportunity to express any concern as
to his suitability.
5. PROCEEDINGS OF THE BOARD
5.1 Convening Board meetings
A Director may, and the secretary of the Company at the request of a
Director shall, call a meeting of the Board of Directors. The Board of
Directors shall hold meetings in the United Kingdom at least once every
month unless agreed otherwise by all the Directors.
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5.2 Notice of Board meetings
Wherever practicable, at least five Business Days' notice of each
meeting of the Board of Directors shall be given to each Director
entitled to attend and the notice shall be accompanied by an agenda and
a board paper setting out in such reasonable detail as may be
practicable in the circumstances the subject matter of the meeting.
Breach of this clause 5.2 shall not affect the validity of any meeting
of the Board of Directors which has otherwise been validly convened.
5.3 Quorum at Board meetings
(A) A quorum shall exist at any meeting of the Board of Directors
if at least one Director appointed by RML and at least one
Director appointed by the Purchaser is present or represented
by an alternate.
(B) If a quorum is not present at a meeting of the Board of
Directors at the time when any business is considered, any
Director may require that the meeting be reconvened. At least
five Business Days' notice of the reconvened meeting shall be
given to each Director entitled to attend unless all the
Directors agree otherwise. At the reconvened meeting, a quorum
shall exist with respect to those matters on the agenda which
were not disposed of at the original meeting if any two or
more Directors are present or represented by an alternate.
5.4 Voting at Board meetings
Resolutions of the Board of Directors shall be decided by majority of
the votes cast and each Director shall have one vote. In the case of an
equality of votes, the Chairman shall have a casting vote.
5.5 Directors' interests
A Director shall not be counted in the quorum (nor shall his presence
be required in order to constitute a quorum if it would otherwise be
required under this agreement), nor shall he be entitled to vote, in
respect of any legal proceedings or other claim by the Company against
the Shareholder who appointed him or member of its Group or any such
proceedings or other claim by the Shareholder who appointed him or
member of its Group against the Company. Except in respect of any such
proceedings or other claim (but without prejudice to his obligations
under section 317 of the Companies Act 1985), a Director present or
represented by an alternate shall be counted in the quorum and be
entitled to vote at a meeting of Directors on any resolution concerning
a matter in which he has, directly or indirectly, an interest or duty.
5.6 Participation arrangements
Any one or more Directors may participate in and vote at Directors'
meetings by means of a conference telephone or any communication
equipment which allows all persons participating in the meeting to hear
each other. Any Director so participating in a meeting shall be deemed
to be present in person and shall count towards the quorum.
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5.7 Written resolutions
A resolution in writing signed by all the Directors shall be as valid
and effective for all purposes as a resolution passed by the Directors
at a meeting duly convened, held and constituted.
5.8 Insurance
The Company shall effect, and pay the premiums in respect of, directors
and officers insurance with an insurance company of good repute in
respect of each Director on terms approved by the Board of Directors
and to be maintained and renewed for as long as such Director holds
office as a director of the Company and for a period of one year after
he ceases to be such a director.
6. ACCESS TO INFORMATION AND ACCOUNTS
6.1 Provision of information by the Company
The Company shall provide each of RML and the Purchaser with access to
and copies of such information and records of the Company and its
Affiliates as that Shareholder may reasonably require from time to
time, provided that neither RML nor the Purchaser shall be entitled to
require the Company to restate financial or other information for the
purpose of preparing the Shareholder's accounts.
6.2 Provision of information by Directors
Notwithstanding any provision to the contrary in the Regus Brand
Agreement or the Services Agreement, each Director is irrevocably
authorised by the Company to disclose any information or records
belonging to or concerning the Company, its Affiliates or its or their
business and assets which is reasonably required for the purposes of
managing an investment in the Company ("Permitted Information") to any
Shareholder who has appointed him and members of its Group and each
Director appointed by the Purchaser is also irrevocably authorised by
the Company to disclose Permitted Information to:
(A) Alchemy;
(B) Alchemy Partners;
(C) any adviser to, or trustee or manager of, any fund advised or
managed by Alchemy Partners, which fund holds an interest in
the Company; and
(D) to Alchemy Partners' professional advisers.
6.3 Management accounts
The Company will submit concurrently to each of RML and the Purchaser
(and in normal circumstances within fifteen Business Days of the end of
each month):
(A) consolidated management accounts for the Company, its
subsidiaries and subsidiary undertakings consisting of a
consolidated balance sheet, consolidated profit and loss
account and consolidated cash flow statement
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showing, inter alia, revenues, operating results, overall
results and relevant cash flow information on a monthly and
year-to-date basis and performance compared to the Business
Plan and a forecast consolidated balance sheet, consolidated
profit and loss account and consolidated cashflow statement
for the period from the date of such management accounts to
the end of the then current financial year of the Company; and
(B) a report describing the status of the implementation of the
Company's strategy and major projects as set out in the
Business Plan and updating details of projected capital
requirements.
6.4 Annual accounts
Without prejudice to the provisions of the Share Purchase Agreement,
the Company shall provide to each of RML and the Purchaser concurrently
(i) draft accounts of the Company for each Accounting Period (in normal
circumstances within twenty Business Days of the end of the period to
which they relate) and (ii) audited accounts of the Company for each
Accounting Period promptly following their approval by the Directors.
6.5 Maintenance of Accounts and Records
The Company shall maintain, and shall procure that its Affiliates
maintain, full and accurate books of account, detailed trading and
financial records, all necessary taxation records, and details of
customers.
7. BUSINESS PLANS
7.1 First Business Plan
The initial Business Plan of the Company shall comprise the 2003 Budget
signed by RML and the Purchaser at the date of this Agreement for the
purpose of identification.
7.2 Preparation of Subsequent Business Plans
No later than one month prior to the end of each Accounting Period, the
Company shall submit to each of RML and the Purchaser a draft business
plan covering the three year period commencing at the end of such
Accounting Period. Each draft business plan shall include:
(A) business forecasts;
(B) appropriate explanations of the Directors' proposed strategy;
(C) details of the assumptions used;
(D) a detailed annual budget for the first Accounting Period
covered by the draft business plan including a detailed
breakdown of:
(i) monthly consolidated revenues, operating expenses,
operating results and net interest expenses;
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(ii) monthly capital expenditures and cash flow;
(iii) consolidated balance sheet as at the end of each
Accounting Period and profit and loss account for
each Accounting Period;
(iv) expected funding requirements and the proposed methods
of meeting those requirements;
(v) cash flow return on investment; and
(E) a summary annual budget for each of the second and third
Accounting Periods covered by the draft business plan.
7.3 Adoption of Business Plans
RML and the Purchaser shall use all reasonable endeavours to agree
each draft business plan submitted in accordance with sub-clause 7.2
with such amendments as they may think fit no later than one week prior
to the end of the then current Accounting Period. If RML and the
Purchaser, having so used reasonable endeavours, are not in agreement
by such time, the Board of Directors may adopt the business plan with
such amendments as it may think fit.
8. DIVIDEND POLICY
Subject to:
(A) the Company having available distributable reserves and
sufficient available cash resources; and
(B) such distribution not being inconsistent with the current
Business Plan; or
(C) the provisions of the Share Purchase Agreement,
the Company shall as soon as reasonably practicable after each Quarter
distribute to its members no less than fifty per cent. of the
distributable profits of the Company arising from that Quarter.
9. RESERVED MATTERS
9.1 Requirement for approval
Notwithstanding any other provision of this agreement (save as
specifically referred to in paragraphs (K), (L) and (M) below), none of
the actions listed below shall be taken by the Company, and the
Shareholders shall not vote in favour of any resolution in respect of
any of such actions, without prior approval by RML:
(A) any amendment to the memorandum or articles of association of
the Company;
(B) any change to the rights attaching to any class of shares in
the Company which are not set out in the memorandum or
articles of association of the Company;
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(C) the consolidation, sub-division, conversion or cancellation of
any share capital of the Company;
(D) any reduction of the share capital of the Company;
(E) the purchase or redemption of any share capital of the
Company;
(F) any resolution to wind up the Company other than in
circumstances where the company has ceased or in the
reasonable opinion of the Board of Directors will shortly
cease to be able to pay its debts as they fall due;
(G) the filing of a petition for winding up by the Company or the
making of any arrangement with creditors generally or any
application for an administration order or for the appointment
of a receiver or administrator other than in circumstances
where the company has ceased or in the reasonable opinion of
the Board of Directors will shortly cease to be able to pay
its debts as they fall due;
(H) the repayment of capital or assets to members;
(I) any material change in the nature or scope of the Business;
(J) the entering into, assumption, variation, transfer,
termination or surrender of any agreement or arrangement
outside the ordinary scope of the Business;
(K) subject to clause 9.4, the entry by the Company into any
agreement or arrangement involving the making of payments, or
the assumption of obligations or liabilities, by the Company
in excess of (pound)500,000 per annum;;
(L) subject to clause 9.4, making any investment, or the
liquidation of any investment made by the Company, in any
other person or business in excess of (pound)500,000;
(M) subject to clause 9.4, the acquisition or disposal of a single
asset or category of assets in excess of (pound)500,000 in
value;
(N) borrowing funds which, when aggregated with advances to the
Company which have been or may be made under other financial
facilities, exceed (pound)500,000;
(O) any change in the basis of accounting or accounting principles
or policies employed by the Company other than as required by
law or by accounting policies generally accepted in the United
Kingdom from time to time;
(P) any change of the auditors or the Accounting Period of the
Company;
(Q) the entering into or variation of any transaction by the
Company with (i) a Shareholder or (ii) any member of a
Shareholder's Group or (iii) any Director or officer of any
Shareholder or any member of a Shareholder's Group; and
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(R) the effecting of any of the above matters by an Affiliate of
the Company (and, for this purpose, any reference in the above
to the Company shall be read as a reference to the relevant
Affiliate).
9.2 Currency
In clause 9.1 (Requirement for approval), references to "(pound)" are
to pounds sterling and reference to any amount in such currency shall
be deemed to include reference to or equivalent amount in any other
currency.
9.3 Method of approval
RML may give its approval under clause 9.1 (Requirement for approval):
(A) in writing; or
(B) by a vote in favour of a separate and specific members'
resolution on that matter; or
(C) by a vote in favour of a separate and specific directors'
resolution on that matter by all or a majority of the
Directors appointed by that Shareholder.
9.4 Proviso
The provisions of paragraphs (J), (K), (L) and (M) of clause 9.1 shall
not apply in relation to any action of the Company which is taken in
respect of:-
(A) the acquisition, development and fitting out of new serviced
office premises or the disposal or closing of existing
serviced office premises; or
(B) following termination of the IT Services (as defined in the
Services Agreement) the acquisition, installation, development
or renewal of software and hardware and associated IT
services,
and for the avoidance of doubt the costs associated with the same shall
not be included in determining whether or not the thresholds referred
to in paragraphs (K), (L) and (M) of clause 9.1 have been satisfied.
9.5 Consultation
Any Director appointed by RML may notify the Purchaser in writing that
in his reasonable belief the Company is likely to be unable to pay its
debts as they fall due or that the Directors may shortly be committing
an offence under the Insolvency ▇▇▇ ▇▇▇▇ in continuing to allow the
Company to conduct business. As soon as practicable after receipt of
such notice, the Purchaser shall and shall procure that the Directors
appointed by it use reasonable endeavours to consult with, and consider
the representations of, RML concerning the trading, finances and
strategy of the Company and its Affiliates.
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9.6 Right to Lend
(A) Any Director appointed by RML may notify the Purchaser and the
Company in writing that in his reasonable belief the Company or
any of its Affiliates is likely to be unable to pay its debts as
they fall due within the next six weeks, or that the Directors
or the directors of any Affiliate of the Company may within the
next six weeks commit an offence under the Insolvency ▇▇▇ ▇▇▇▇
in continuing to allow the Company or the Affiliate (as the case
may be) to conduct business.
(B) If the Purchaser disagrees, RML may (at its own cost) instruct
the Company's auditors to prepare a report addressed to the
Board of Directors to the effect that they have enquired into
the Company's or Affiliate's state of affairs (as the case may
be) and they are of the view that the opinion expressed by the
Director is reasonable in all the circumstances. If the auditors
do issue such a report, paragraph (C) shall apply.
(C) If the Purchaser agrees, or the auditors provide a report
referred to in paragraph (B), RML and the Purchaser agree that
RML has the right (but not the obligation) to lend money to the
Company or the Affiliate (as the case may be) subject to
compliance with the provisions of paragraph (D).
(D) If RML wishes to so exercise its right it shall promptly notify
the Purchaser in writing. Such notice shall set out the terms of
the proposed loan (which shall be such reasonable and customary
terms as RML determines, save that it may set the interest rate
at an amount as high as LIBOR plus 7.5 per cent). The Purchaser
may, within seven days of receipt of such notice, elect to
contribute an equal share of the debt funding proposed to be
provided by RML on the same terms and conditions, in which case
RML shall not proceed to lend money other than on such basis. If
the Purchaser makes no such election within this period, RML may
proceed to enter into a loan with the Company or any of its
Affiliates on the terms referred to above.
10. DEADLOCK RESOLUTION
10.1 Deadlock situation
If a proposal is made in respect of one of the matters referred to in
clause 9.1 (Reserved matters) but is not approved in accordance with
that clause, either RML or [the Purchaser] may give written notice to
the other that it regards a deadlock situation as having arisen
("Deadlock Notice"). Only one Deadlock Notice may be served in respect
of any one proposal.
10.2 Circulation of memoranda
Within ten Business Days of the date of service of a Deadlock Notice,
RML and the Purchaser shall each prepare and exchange a memorandum
stating its understanding of the disagreement, its position in relation
to the disagreement, its reasons for taking that position and any
proposals for resolving the disagreement.
10.3 Referral to Chairmen
If within 15 Business Days from the date of service of a Deadlock
Notice, RML and the Purchaser shall have failed to resolve the
disagreement, the chairmen of PLC and the
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Purchaser shall be provided with copies of such memoranda and shall as
soon as reasonably practicable meet to discuss the disagreement and
use all reasonable endeavours to resolve it.
10.4 Unresolved deadlock
If a deadlock relating to any proposal made in respect of one of the
matters referred to in clause 9 (Reserved matters) is not resolved
after applying the above procedure, the proposal shall not proceed.
11. ISSUE OF SHARES
Prior to the fourth anniversary of the date of this agreement, no
unissued Share, and no right to subscribe for or convert any security
into a Share, shall be allotted or issued without the prior consent in
writing of RML save where, in the reasonable opinion of the Board of
Directors, the granting of such right or such allotment and issue is
necessary to ensure that the Company does not cease to be able to pay
its debts as and when they fall due.
12. RESTRICTIONS ON DEALING WITH SHARES
12.1 Restrictions on disposals
No Disposal of any Share or any legal or beneficial interest in a Share
shall be permitted except a transfer of the legal or beneficial
interest in the Share which is permitted by the other terms of this
agreement.
12.2 Lock-in period
No transfer of Shares shall be permitted prior to the second
anniversary of the date of this agreement except in accordance with
clause 13 (Permitted transfers) or clause 17 (Transfer of Shares on
Default).
13. PERMITTED TRANSFERS
13.1 Transfers within a Group
A Shareholder may transfer any Share to any other body corporate in its
Group provided that the transferee shall first have entered into a Deed
of Adherence in the form set out in schedule 1 (Form of Deed of
Adherence), save that neither RML nor BV nor their respective Group
Transferees shall be entitled to transfer any Share to a body corporate
which is not a qualifying member of the Remaining Regus Group. For the
purposes of this clause 13.1, the expression "a qualifying member of
the Remaining Regus Group" shall mean a member of the Remaining Regus
Group which has not filed for relief under Chapter 11 of Title 11 of
the United States Code.
13.2 Group Transferee leaving the Group
A Group Transferee shall transfer, in a manner and to a transferee
permitted by this agreement, all the Shares held by it before it ceases
to be in the same Group as the Original Holder.
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13.3 Purchaser Transfers
The Purchaser and its Group Transferees may transfer Shares held by
them:
(A) to Alchemy or a body corporate which acts as a nominee of
Alchemy;
(B) to any person which acts as a nominee or trustee of any
limited partnership or unit trust comprising the Alchemy
Investment Plan;
(C) (in the event of a distribution in kind pursuant to the
agreement or trust deed (as the case may be) constituting any
limited partnership or unit trust comprising the Alchemy
Investment Plan) to the partners of the limited partnership or
their nominees or the holders of units in the unit trust or
their nominees (as the case may be); and
(D) to a nominee or trustee for a limited partnership, unit trust
or investment trust which is primarily a vehicle for
institutional investors and which is advised or managed by
Alchemy.
13.4 Transfers Pursuant to Share Purchase Agreement
Notwithstanding any other provision of this agreement, a Regus
Shareholder may transfer Shares to the Purchaser in accordance with the
terms of the Share Purchase Agreement.
13.5 Information and evidence
The transferor and transferee of any Share transferred under this
clause 13 and the Original Holder (if any) of the transferred Share
shall each provide to the Directors, at his own expense, any
information and evidence requested in writing by the Directors for the
purpose of determining whether the transfer to the proposed transferee
complies with the terms of this clause 13.
13.6 Compliance with agreement
Each Shareholder shall procure that all Group Transferees in relation
to which it is the Original Holder comply with the terms of this
agreement.
14. PRE-EMPTION RIGHTS
14.1 Transfer Notice
Prior to making any transfer of any Share (other than in accordance
with clause 13 (Permitted transfers), clause 17 (Transfer of Shares on
default) or clause 16 (Drag Along Right)), the person whose Shares are
to be transferred ("Offeror") shall give a notice in writing ("Transfer
Notice") to the Company informing it of the proposed transfer and
setting out:-
(A) the Shares to which it relates ("Offered Shares");
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(B) the identity of the person who has expressed an interest in
acquiring the Offered Shares ("Proposed Transferee");
(C) the price and other terms ("Offer Terms") on which the Offeror
proposes to transfer the Offered Shares; and
(D) a condition, if the Offeror wishes to impose it, that unless
all or a specified minimum number of the Offered Shares are
taken up by other Shareholders when offered to them in
accordance with this clause 14, then none of the Offered
Shares shall be transferred to other Shareholders under this
clause 14 ("Minimum Transfer Condition").
14.2 Company as agent
The Transfer Notice shall constitute the Company the agent of the
Offeror for the transfer of each of the Offered Shares, free of all
encumbrances and with all rights attached to them, in accordance with
this clause 14.
14.3 Revocation of Transfer Notice
The Transfer Notice shall only be revocable in accordance with clause
14.5(C) (Revised Offer at Prescribed Value) or with the consent in
writing of all the other Shareholders and if it is revoked:-
(A) the Offeror may not give a further Transfer Notice within six
months after the date on which the Transfer Notice is revoked;
(B) the Company shall inform all other holders of Shares that the
Transfer Notice has been revoked; and
(C) the remaining provisions of this clause 14 shall cease to
apply in relation to the revoked Transfer Notice.
14.4 Offer to Shareholders
Within five days after the date on which the Transfer Notice is
received by the Company, the Company shall send a notice in writing
(where the Offeror is RML or any member of its Group) to the Purchaser
or (where the Offeror is the Purchaser or any member of its Group) to
RML:-
(A) containing an offer ("Offer") of the Offered Shares on
the Offer Terms and inviting the recipient to notify
the Company in writing within a period of 90 days
("Offer Period") whether it or any other member of its
Group is willing to take any, and if so what maximum
number, of the Offered Shares on the Offer Terms;
(B) setting out the identity of the Proposed Transferee;
(C) stating that the recipient may by notice in writing to the
Company within a period of 14 days:-
(i) require the Offered Shares to be re-offered at the
Prescribed Value; or
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(ii) require on its behalf and on behalf of any other
member of its Group which holds Shares that the
Offeror complies with clause 15 (Tag Along Right),
and the giving of such notice in either case shall result in
the Offer being revoked and any purported acceptances of the
Offer being of no effect;
(D) stating that, if recipients who accept the Offer express, in
aggregate, a willingness to take more than the total number of
Offered Shares, the Offered Shares shall be allocated to such
recipients in proportion as nearly as may be to the number of
Shares then held by them subject to the maximum number
specified by each such recipient; and
(E) if a Minimum Transfer Condition is included in the Transfer
Notice, stating that the Offer cannot be validly accepted in
respect of any of the Offered Shares unless and until
purported acceptances have been received by the Company
relating to the minimum number of Offered Shares specified in
the Minimum Transfer Condition.
14.5 Revised Offer at Prescribed Value
If the Company receives a valid notice under clause 14.4(C)(i) (Offer
to Shareholders):
(A) the Company shall notify all the Shareholders of the
revocation of the Offer;
(B) the parties shall use all reasonable endeavours to
determine or procure the determination of the
Prescribed Value of the Offered Shares as soon as
reasonably practical;
(C) the Offeror may revoke the Transfer Notice within ten
days after the date on which the Prescribed Value of
the Offered Shares is determined;
(D) if the Offeror does not validly revoke the Transfer
Notice, within ten days after the date on which the
Prescribed Value of the Offered Shares is determined,
the Company shall send a further notice in writing to
all Shareholders (other than the Offeror or any other
Shareholder who has given a Transfer Notice in respect
of any of its Shares):-
(i) containing an offer ("Revised Offer") of the Offered
Shares at the Prescribed Value and otherwise on the
Offer Terms and inviting each recipient to notify the
Company in writing within a period of 30 days
("Revised Offer Period") whether it is willing to take
any, and if so what, maximum number of the Offered
Shares at the Prescribed Value and otherwise on the
Offer Terms;
(ii) stating that, if recipients who accept the Revised
Offer express, in aggregate, a willingness to take
more than the total number of Offered Shares, the
Offered Shares shall be allocated to such recipients
in proportion as nearly as may be to the number of
Shares then held by them subject to the maximum number
specified by each such recipient; and
20
(iii) if a Minimum Transfer Condition is included in the
Transfer Notice, stating that the Revised Offer cannot
be validly accepted in respect of any of the Offered
Shares unless and until purported acceptances have
been received by the Company relating to the minimum
number of Offered Shares specified in the Minimum
Transfer Condition.
14.6 Sale to Shareholders
If no Minimum Transfer Condition is included in the Transfer Notice, or
if a Minimum Transfer Condition is included and the Company receives
acceptances for the specified minimum number of Offered Shares within
the Offer Period or any Revised Offer Period:-
(A) the Company shall, within five days after the date on which
the Offer Period or any Revised Offer Period ends, notify in
writing:-
(i) the Offeror of the number of Offered Shares (if any)
for which no acceptances have been received; and of
the name and address of each person who has accepted
Offered Shares ("Accepting Holders") and the number
of Shares to be transferred to each of them;
(ii) each of the Accepting Holders of the number of
Shares to be transferred to it; and
(iii) the Offeror and each of the Accepting Holders of the
time(s) (not being less than forty-eight hours nor
more than five days after the date of such
notification) and place(s) for completion of the
transfer of Shares to Accepting Holders;
(B) the Offeror and the Accepting Holders shall be obliged to
complete the transfer of the relevant Shares in accordance
with clause 19 (Completion of Share transfers) at such time(s)
and place(s) as shall be specified in the notification under
clause 14.6(A)(iii); and
(C) if the Company has not received acceptances in respect of all
the Offered Shares, clause 14.8 (Transfer to any person) shall
apply to the Offered Shares for which acceptances have not
been received.
14.7 Minimum Transfer Condition not met
If a Minimum Transfer Condition is included in the Transfer Notice and
the Company does not receive acceptances for the specified minimum
number of the Offered Shares within the Offer Period or any Revised
Offer Period:-
(A) it shall, within five days after the expiry of the
Offer Period or any Revised Offer Period, so inform
the Offeror and all persons who purported to accept
the Offer or any Revised Offer; and
(B) clause 14.8 (Transfer to any person) shall apply to
all the Offered Shares, save that:-
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(i) no Offered Share shall be transferred to an existing
Shareholder pursuant to clause 14.8 (Transfer to any
person) unless each Shareholder who purported to
accept the Offer or any Revised Offer is given the
opportunity to have transferred to him the Shares he
applied for in response to the Offer or Revised Offer
on the Offer Terms; and
(ii) no Share may be transferred under clause 14.8
(Transfer to any person) unless the minimum number of
Offered Shares specified in the Minimum Transfer
Condition are so transferred.
14.8 Transfer to any person
The Offeror may transfer, to any person named in the Transfer Notice as
having expressed an interest in acquiring the Offered Shares, any
Offered Share to which this clause 14.8 applies provided that:-
(A) the entire legal and beneficial interest in each of the Shares
is transferred;
(B) clause 18 (Ineligible persons) is complied with;
(C) the price is not less than the price set out in the Offer
Terms or, if the Prescribed Value of the Offered Shares has
been determined, such Prescribed Value and in either case is
not subject to any rebate, allowance or deduction whatever;
(D) the other terms of sale to the transferee are not more
favourable than the Offer Terms;
(E) there are no collateral agreements which make the arrangement
more favourable to the transferee;
(F) the transfer takes place within thirty days after the date on
which the Offer Period or any Revised Offer Period ends;
(G) the Offeror and the transferee shall each provide to the
Directors, at his own expense, any information and evidence
requested in writing by the Directors for the purpose of
determining whether the transfer to the transferee complies
with the terms of this clause 14.8; and
(H) the transferee shall, prior to the transfer, enter into a Deed
of Adherence in the form set out in schedule 1.
15. TAG ALONG RIGHT
15.1 Tag Along Notice Served
(A) If a Tag Along Notice is served by any Shareholder in
accordance with clause 14.4(C)(ii), the provisions of this
clause 15 shall apply.
(B) The Offeror shall use reasonable endeavours to procure that
the Proposed Transferee acquires, at the same time and on the
same terms and conditions referred to in the relevant Transfer
Notice, the Relevant Percentage of the
22
Offeror's Shares and the Relevant Percentage of the Shares
held by the Shareholder or each Shareholder which served a
Tag Along Notice or on whose behalf a Tag Along Notice was
served.
(C) If, despite the Offeror having complied with its obligations
under paragraph (B), the Proposed Transferee has not agreed to
acquire shares on the basis referred to in paragraph (B)
within 14 days of the date of the relevant Tag Along Notice:
(i) the Offeror shall not proceed with the sale of the
Shares to the Proposed Transfer referred to in the
relevant Transfer Notice; and
(ii) the Offeror shall not give a further Transfer Notice
within one month of the date of the relevant
Transfer Notice.
(D) A Proposed Transferee must first enter into a Deed of
Adherence in the form set out in schedule 1 before acquiring
any Shares pursuant to this clause 15.
15.2 Relevant Percentage
For the purpose of sub-clause 15.1, the Relevant Percentage of a
Shareholder's Shares means a number of the Shareholder's Shares
calculated as follows:
S x P
Where:
S means the number of Shares the Proposed Transferee wishes to acquire;
and
P means a percentage (expressed as a fraction) which is equal to that
Shareholder's percentage shareholding in the Company.
16. DRAG ALONG RIGHT
16.1 Qualifying Offer
If a Qualifying Offer is received or procured by the Purchaser at any
time after the second anniversary of the date of this agreement, the
provisions of this clause 16.1 shall apply. For the purpose of this
clause 16.1, "Qualifying Offer" shall mean a bona fide offer in writing
on arms' length terms which is made by or on behalf of a person who:-
(a) is not a Shareholder;
(b) is not a member of a Shareholder's Group; and
(c) has no agreement or arrangement of any kind with any
Shareholder relating to the offer other than an agreement or
arrangement relating solely to acceptance of the offer,
and which is conditional on acceptances in respect of all the Shares
then in issue being received.
23
16.2 Other Shareholders to be informed
The Purchaser must promptly provide a notice containing a copy of the
Qualifying Offer to the other Shareholders (the "Informing Notice").
The Informing Notice should be dated as of the date on which it is
despatched.
16.3 Matching Offer
(A) For the purpose of this clause 16.3, "Matching Period" shall
mean the period:
(i) commencing on the day after the Informing Notice is
sent; and
(ii) ending at midnight on the twenty-first day after the
Informing Notice is sent.
(B) RML may, within the Matching Period, offer by notice in
writing to the other Shareholders to acquire all the Shares
of the other Shareholders (a "Matching Offer"). The Matching
Offer shall be conditional only on acceptances in respect of
all the Shares then in issue being received (other than in
respect of Shares held by RML and members of its Group) and
otherwise on terms and conditions which are at least as
favourable as those of the Qualifying Offer. Clause 14
(Pre-emption rights) shall not apply in respect of the
transfer of shares pursuant to the Matching Offer. If a
Matching Offer is made by RML, the Shareholders shall not
accept the relevant Qualifying Offer.
16.4 Cessation of Clause 16.3
Clause 16.3 shall cease to apply after the sixth anniversary of the
date of this agreement.
16.5 Acceptance of Qualifying Offer
(A) The Purchaser may accept a Qualifying Offer provided that, if
clause 16.3 applies, the relevant Matching Period has expired
and no Matching Offer has been made during that period in
accordance with clause 16.3.
(B) If the Purchaser accepts the Qualifying Offer, each of the other
Shareholders shall be deemed to have accepted such offer and the
provisions of clause 14 (Pre-emption rights) shall not apply in
respect of the transfer of shares pursuant to the Qualifying
Offer. The transfer of Shares pursuant to the Qualifying Offer
shall be completed in accordance with clause 19 (Completion of
Share transfers) within ten Business Days of the date on which
the Qualifying Offer becomes unconditional.
17. TRANSFER OF SHARES ON DEFAULT
17.1 Events of Default
The following are "Events of Default" in relation to a Shareholder and
"Specified Shares" in relation to an Event of Default:-
24
(A) any Shareholder makes any Disposal of any Shares which is in
breach of this agreement, in which case the Specified Shares
shall be all the Shares held by that Shareholder and members
of its Group;
(B) any Shareholder is in material or persistent breach of any of
the other provisions of this agreement and such breach has
not, if capable of remedy, been remedied to the reasonable
satisfaction of the other Shareholders within thirty days of
receipt by the Shareholder in breach of written notice from
any of the other Shareholders requiring such remedy, in which
case the Specified Shares shall be all the Shares held by that
Shareholder and members of its Group;
(C) a Group Transferee ceases to be a member of the same Group as
the Original Holder while it still holds Shares, in which case
the Specified Shares shall be all the Shares held by that
Group Transferee;
(D) if the Purchaser or any member of its Group is in breach of
clause 25.2 in which case the Specified Shares shall be all
the Shares held by the Purchaser's Group;
(E) if PLC or any member of its Group is in breach of clause 25.1
in which case the Specified Shares shall be all the Shares
held by members of PLC's Group;
(F) any procedure is commenced with a view to the winding-up or
re-organisation of any Shareholder or its Ultimate Parent
Company (other than for the purpose of a solvent amalgamation
or reconstruction with the prior approval of the other
Shareholders, such approval not to be unreasonably withheld or
delayed), and that procedure (unless commenced by that
Shareholder or its Ultimate Parent Company, as the case may
be) is not terminated or discharged within thirty days, in
which case the Specified Shares shall be all the Shares held
by that Shareholder and members of its Group;
(G) the filing for relief under Chapter 11 of Title 11 of the
United States Code by any Shareholder or its Ultimate Parent
Company, in which case the Specified Shares shall be all the
Shares held by that Shareholder and members of its Group;
(H) any procedure is commenced with a view to the appointment of
an administrator, receiver, administrative receiver or
trustee in bankruptcy in relation to any Shareholder or
its Ultimate Parent Company or all or substantially all of
its assets (or any analogous procedure is commenced in any
other jurisdiction in relation to any Shareholder or its
Ultimate Parent Company or substantially all of its assets)
and that procedure (unless commenced by that Shareholder or
its Ultimate Parent Company, as the case may be) is not
terminated or discharged within thirty days, in which case
the Specified Shares shall be all the Shares held by that
Shareholder and members of its Group;
(I) the holder of any security over all or substantially all of
the assets of any Shareholder or its Ultimate Parent Company
takes any step to enforce that security and that enforcement
is not discontinued within thirty days, in which case the
Specified Shares shall be all the Shares held by that
Shareholder and members of its Group;
25
(J) all or substantially all of the assets of any Shareholder or
its Ultimate Parent Company are subject to attachment,
sequestration, execution or any similar process and that
process is not terminated or discharged within thirty days, in
which case the Specified Shares shall be all the Shares held
by that Shareholder and members of its Group;
(K) any Shareholder or its Ultimate Parent Company is unable to
pay its debts as they fall due or enters into a composition or
arrangement with its creditors or any class of them, in which
case the Specified Shares shall be all the Shares held by that
Shareholder and members of its Group;
(L) any Shareholder or its Ultimate Parent Company ceasing or
threatening to cease wholly or substantially to carry on its
business, other than for the purpose of a solvent amalgamation
or reconstruction with the prior approval of the other
Shareholders (such approval not to be unreasonably withheld or
delayed), in which case the Specified Shares shall be all the
Shares held by that Shareholder and members of its Group; or
(M) if the Directors have requested information and/or evidence
from any Shareholder to enable them to determine whether any
of the above circumstances apply to that Shareholder or any
member of its Group, such information or evidence not being
provided to the reasonable satisfaction of the Directors
within fourteen days after the request is received, in which
case the Specified Shares shall be all the Shares held by that
Shareholder and members of its Group.
PROVIDED HOWEVER that none of the following shall constitute an Event of
Default for the purpose of this agreement:
(A) the filing for relief under Chapter 11 of Title 11 of the
United States Code by PLC or any member of its Group within
six months of the date of this agreement;
(B) the filing by PLC or any member of its Group of an involuntary
petition for relief within six months of the date of this
agreement so long as it is converted into a filing for relief
under Chapter 11 of Title 11 of the United States Code within
45 days;
(C) the negotiation of, taking of other preparatory steps in
relation to, approval of, and implementation of any plan of
reorganisation in connection with or pursuant to any such
filing; and
(D) the appointment of an administrator in relation to any entity
referred to in paragraphs (A) or (B) of this proviso in
concert with a filing referred to in paragraph (A) or
paragraph (B) of this proviso.
17.2 Compulsory Offer
(A) If an Event of Default (other than a Disposal of any Shares
which is in breach of this agreement) occurs and is continuing
in relation to any Shareholder the Directors may give notice
to the holder(s) of the Specified Shares ("Compulsory Transfer
Notice") requiring the transfer of the Specified Shares.
26
(B) If:
(i) any Shareholder makes any Disposal of any Shares
which is in breach of this agreement; or
(ii) a Compulsory Transfer Notice is given in respect of
any other Event of Default;
at any time prior to the eightieth anniversary of the date of
this agreement the holder of the Specified Shares shall be
deemed to have appointed the Company as his agent for the
transfer of each of the Specified Shares, free of all
encumbrances and with all rights attached to them, in
accordance with this clause 17.
(C) The parties shall use all reasonable endeavours to determine
or procure the determination of the Prescribed Value of the
Specified Shares as soon as reasonably practical after the
giving of a Compulsory Transfer Notice or the Disposal of
Shares (as the case may be).
(D) Within ten days after the date on which the Prescribed Value
of the Specified Shares is determined, the Company shall send
a notice in writing to all existing holders of Shares (other
than the holder or holders of the Specified Shares or any
other holder of Shares who has given a Transfer Notice in
respect of any of its Shares):-
(i) containing an offer ("Compulsory Offer") of the
Specified Shares at the Prescribed Value and
inviting each recipient to notify the company in
writing within a period of 30 days ("Compulsory
Offer Period") whether it is willing to take any,
and if so what maximum number, of the Specified
Shares;
(ii) stating that, if the recipients who accept the
Compulsory Offer express, in aggregate, a
willingness to take more than the total number of
Specified Shares, the Specified Shares shall be
allocated to such recipients in proportion as nearly
as may be to the number of Shares then held by them,
subject to the maximum number specified by each such
recipient; and
(iii) setting out the name of any person nominated by the
Directors who has expressed an interest in acquiring
all or any of the Specified Shares and to whom any
Specified Shares not allocated among the recipients
of the Compulsory Offer may, subject to clause 18
(Ineligible persons), be allocated.
(E) The Company shall, within seven days after the date on which
the Compulsory Offer Period ends, notify in writing:-
(i) the holder of the Specified Shares of the name and address of
each person ("Purchaser") to whom Specified Shares have been
allocated and the number of Shares to be transferred to each
of them;
27
(ii) each of the Purchasers of the number of Shares to be
transferred to it; and
(iii) the holder of the Specified Shares and each of the Purchasers
of the time(s) (not being less than forty-eight hours nor more
than seven days after the date of such notification) and
place(s) for completion of the transfer of Shares to the
Purchasers.
(F) The holder of the Specified Shares and each of the Purchasers
shall be obliged to complete the transfer of the Specified
Shares in accordance with clause 19 (Completion of Share
transfers) at such time(s) and place(s) as shall be specified
in the notification under clause 17.3(E)(iii).
17.3 Directors' interests
For the purposes of this clause 17, references to the Company shall
mean the Company acting through the Directors and references to the
Directors shall exclude any Director who has been appointed by the
holder of the Specified Shares or any member of its Group.
17.4 RML
RML confirms to the Purchaser that it has no intention to file for
relief under Chapter 11 of Title 11 of the United States Code and
undertakes to consult with the Purchaser prior to making any decision
to file for such relief.
18. INELIGIBLE PERSONS
Notwithstanding anything in this agreement, no allotment or transfer of
any Share shall be made to any person who is not a body corporate other
than in the case of a transfer referred to in clause 13.3.
19. COMPLETION OF SHARE TRANSFERS
19.1 Encumbrances and rights
Where this clause 19 applies to the transfer of any Share, the Share
shall be transferred free of encumbrances and with all rights attaching
thereto.
19.2 Obligations at completion
Upon completion of any transfer of Shares under this agreement:-
(A) the selling Shareholder (the "Seller") shall deliver to the
purchaser a duly executed transfer in favour of the purchaser
together with the certificate representing the relevant Shares
and a power of attorney in a form and in favour of a person
nominated by the purchaser, so as to enable the purchaser,
pending registration, to exercise all rights of ownership in
relation to the Shares transferred to it including, without
limitation, the voting rights;
28
(B) the purchaser shall pay the aggregate transfer price in
respect of the relevant Shares to the seller by bankers' draft
for value on the date of completion or in such other manner as
may be agreed by the seller and the purchaser before
completion;
(C) the purchaser shall (if it is not already a party to this
agreement) enter into a Deed of Adherence in the form set out
in Schedule 1; and
(D) the seller shall do all such other acts and/or execute all
such other documents in a form satisfactory to the purchaser
as the purchaser may reasonably require to give effect to the
transfer of Shares to it.
19.3 Security power of attorney
(A) Each of the Shareholders hereby irrevocably and
unconditionally (and by way of security for the performance of
its obligations under this agreement) appoints any Director
its attorney to execute and do in its name or otherwise and on
its behalf all documents, acts and things which the attorney
shall in its absolute discretion consider necessary or
desirable in order to implement the obligations of that
Shareholder under this clause 19.
(B) Each Shareholder undertakes to ratify whatever any Director as
its attorney shall lawfully do or cause to be done in
accordance with this power of attorney and to indemnify and
keep such attorney indemnified from all claims, costs,
expenses damages and losses which the attorney may suffer as a
result of the lawful exercise by him of the powers conferred
on him under this power of attorney.
(C) This power of attorney shall remain in force in relation to
each Shareholder until this agreement is terminated in respect
of the rights and obligations of that Shareholder under clause
28 (Termination).
19.4 Failure to transfer
If a transfer of Shares is executed on behalf of a Shareholder
pursuant to clause 19 (Security power of attorney):-
(A) the Company may receive the purchase money in trust for that
Shareholder and the receipt of the Company for the purchase
money shall be a good discharge for the purchaser, who shall
not be bound to see to the application of the purchase money;
(B) the Company shall, subject to the instrument of transfer being
duly stamped, cause the purchaser to be registered as holder
of the relevant Shares; and
(C) once registration has taken place in purported exercise of the
power contained in this clause 19.4, the validity of the
proceedings shall not be questioned by any person.
29
20. CONSENT TO TRANSFER FOR THE PURPOSES OF THE ARTICLES
This agreement constitutes the irrevocable written consent of each
Shareholder (including a Shareholder who has executed a Deed of
Adherence) for the purposes of the Articles of Association to any
transfer of Shares which is permitted or required by this agreement.
21. EFFECT OF DEED OF ADHERENCE
The parties agree to extend the benefit and burden of this agreement to
any person who acquires Shares in accordance with this agreement and
enters into a Deed of Adherence in the form set out in schedule 1, but
without prejudice to the continuation inter se of the rights and
obligations of the original parties to this agreement and any other
persons who have entered into such a Deed of Adherence.
22. PRESCRIBED VALUE
The "Prescribed Value" of any Shares shall be determined as follows:
(A) the Prescribed Value of any Shares shall be a percentage of
the market value of the total issued share capital of the
Company, such percentage being equal to the percentage of such
total issued share capital represented by those Shares;
(B) the market value of the total issued share capital of the
Company shall be determined on the basis of a sale between a
willing seller and a willing buyer of the whole of the issued
share capital of the Company;
(C) the Prescribed Value shall be as agreed between RML and the
Purchaser or (in the absence of agreement being reached within
40 days) as certified by the auditors of the Company acting as
experts and not as arbitrators whose decision shall be final
and binding and whose fees shall be borne equally by RML and
the Purchaser or as otherwise determined by the auditors.
23. SHAREHOLDER UNDERTAKINGS
23.1 General Shareholder Undertakings
Each Shareholder undertakes with each other Shareholder that it will:
(A) exercise its voting rights and other rights as a member of the
Company in order (insofar as it is able to do so through the
exercise of such rights) to give full effect to the terms of
this agreement and the rights and obligations of the parties
as set out in this agreement; and
(B) procure that any Director appointed by it from time to time
shall (subject to their fiduciary duties to the Company)
exercise their voting rights and other powers and authorities
in order (insofar as they are able to do so through the
exercise of such rights, powers and authorities) to give full
effect to the terms of this agreement and the rights and
obligations of the parties as set out in this agreement.
30
23.2 Purchaser's Undertaking
The Purchaser shall procure that the Company shall comply with its
obligations under the Brand Agreement and the Services Agreement save
that the Purchaser shall not be in breach of this clause if a failure
by the Company to comply with any such obligation is a consequence of:
(a) the exercise by RML of its rights under clause 9.1; or
(b) an act or omission by a member or members of the Operational
Committee which has not been authorised by the Board of
Directors.
24. UNDERTAKINGS BY THE COMPANY
Each undertaking by the Company in respect of each provision of this
agreement shall be construed as a separate undertaking and if any of
the undertakings is unlawful or unenforceable the remaining
undertakings shall continue to bind the Company.
25. PROTECTIVE COVENANTS
25.1 Non-compete by PLC
(A) PLC undertakes for the benefit of the Company, the Purchaser
and the members of the Purchaser's Group that it will not, and
shall procure that no other member of its Group shall, either
alone or in conjunction with or on behalf of any other person,
at any time on or after the date of this agreement, be engaged
or interested in carrying on a serviced commercial offices
business in the United Kingdom (save as the holder of shares
or debt securities in a listed company which confer not more
than five per cent of the votes which could normally be cast
at a general meeting of the company).
PROVIDED THAT there shall not be a breach of the above
provision:
(i) to the extent that PLC or any member of its Group is
doing anything pursuant to clause 2.2 of the Regus
Brand Agreement; or
(ii) where PLC or any member of its Group acquires any
entity which carries on directly or indirectly a
serviced commercial offices business in the United
Kingdom if the turnover of such business does not
comprise more than 10 per cent. of the then aggregate
turnover of the Company and its Affiliates; or
(iii) where PLC or any member of its Group acquires any
entity which carries on directly or indirectly a
serviced commercial offices business in the United
Kingdom, which business comprises more than 10 per
cent. of the then aggregate turnover of the Company
and its Affiliates, and PLC or the relevant member of
its Group complies with the requirements set out in
paragraph (B) below.
(B) The requirements referred to in subparagraph (A)(iii) are as
follows:
31
(i) as soon as reasonably practicable (and, in any event,
not later than three months) after the acquisition,
PLC or the relevant member of its Group shall offer to
sell to the Company that part of the entity's business
which carries on directly or indirectly a serviced
commercial offices business in the United Kingdom; and
(ii) in the event that the Company declines such offer
(and, in this regard, the Company shall respond within
one month of receiving the offer), PLC or the relevant
member of its Group shall as soon as reasonably
practicable thereafter close down that part of the
entity's business which carries on directly or
indirectly a serviced commercial offices business in
the United Kingdom or sell it to a person who is not a
member of PLC's Group.
25.2 Non-compete by the Purchaser and its Group
(A) The Purchaser undertakes for the benefit of the Company, PLC
and each member of PLC's Group that it will not, and shall
procure that no member of its Group (other than the Company
and its Affiliates) shall, either alone or in conjunction
with or on behalf of any other person, at any time on or
after the date of this agreement, be engaged or interested
in carrying on a serviced commercial offices business in the
United Kingdom (save as the holder of shares or debt
securities in a listed company which confer not more than
five per cent. of the votes which could normally be cast at
a general meeting of the company).
(B) PROVIDED THAT there shall not be a breach of paragraph (A):
(i) where the Purchaser or any member of its Group
acquires any entity which carries on directly or
indirectly a serviced commercial offices business in
the United Kingdom if such business does not comprise
more than 10 per cent. of the then aggregate turnover
of the Company and its Affiliates; or
(ii) where the Purchaser or any member of its Group
acquires any entity which carries on directly or
indirectly a serviced commercial offices business in
the United Kingdom, which business comprises more than
10 per cent. of the then aggregate turnover of the
Company and its Affiliates, and complies with the
requirements of paragraph (C) below.
(C) The requirements referred to in subparagraph (B)(ii) are as
follows:
(a) as soon as reasonably practicable (and, in any event,
not later than three months) after the acquisition,
the Purchaser or the relevant member of its Group
shall offer to sell to PLC or any member of its Group
that part of the entity's business referred to in
subparagraph (B)(ii); and
(b) in the event that PLC and its Group decline such
offer (and, in this regard, PLC and its Group shall
respond within one month of receiving the offer), the
Purchaser or the relevant member of its Group shall
32
as soon as reasonably practicable thereafter close
down that part of the entity's business referred to
in subparagraph (B)(ii) or sell it to a person who is
not a member of the Purchaser's Group.
25.3 Duration
Notwithstanding any other provision of this agreement:
(A) clause 25.1 shall remain in effect until the first to occur
of:
(i) PLC and its Group ceasing to hold Shares;
(ii) all Shares in issue being held by a member or
members of PLC's Group;
(iii) in the event that the Licensees (as defined in the
Brand Agreement) exercise their right pursuant to
clause 21.3 of the Brand Agreement to give notice to
terminate the Brand Agreement; and
(iv) the fifth anniversary of the date of this agreement;
(B) clause 25.2 shall remain in effect until the first to occur
of:
(i) the date on which the Purchaser and its Group cease
to hold any Shares; and
(ii) the fifth anniversary of the date of this agreement.
25.4 Rights of Third Parties
(A) Clause 25.1 is intended to confer benefits on each member of
the Purchaser's Group which is not a party to this agreement
(each a "Purchaser Third Party") and, subject to Clause 25.5,
is intended to be enforceable by each such Purchaser Third
Party by virtue of the Contracts (Rights of Third Parties)
▇▇▇ ▇▇▇▇.
(B) Clause 25.2 is intended to confer benefits on each member of
PLC's Group which is not a party to this agreement (each a
"PLC Third Party") and, subject to clause 25.5 and clause
25.2(B), is intended to be enforceable by each such PLC Third
Party by virtue of the Contracts (Rights of Third Parties)
▇▇▇ ▇▇▇▇.
25.5 Provisos
Notwithstanding clause 25.4 above:-
(A) no Purchaser Third Party may enforce Clause 25.1 without the
prior written consent of the Purchaser which may, if given, be
given on and subject to such terms and conditions as the
Purchaser may determine; and
33
(B) no PLC Third Party may enforce clause 25.2 without the prior
written consent of PLC which may, if given, be given on and
subject to the terms and conditions as PLC may determine; and
(C) this agreement may be rescinded or varied by the parties to it
without the consent of any PLC Third Party or any Purchaser
Third Party.
25.6 Separate Undertakings
Each undertaking contained in clauses 25.1(A) and 25.2(A) shall be
construed as a separate undertaking and if one or more of these
undertakings is held to be against the public interest or unlawful or
in any way an unreasonable restraint of trade, the remaining
undertakings shall continue to bind the persons whom they are
expressed to bind.
25.7 Chinese Wall
In the event that any member of the Purchaser's Group (other than the
Company and its Affiliates) commences or intends to commence any
business outside the UK (the "New Business") which competes with the
office services business of any member of PLC's Group, its franchisees
or licensees, then the Purchaser shall and shall procure that all
members of its Group who are either directly or indirectly involved in
the New Business take all steps reasonably requested by RML to ensure
that no confidential or proprietary information (including without
limitation the Regus System or SMART) is used or made available to any
such member of the Purchaser's Group and shall permit RML to carry out
such audits and inspections as may be reasonably necessary to ensure
that such obligation is fully complied with and will promptly address
and remedy any issues or concerns raised by RML as a result of such
audit or inspection.
26. CONFIDENTIALITY
26.1 Confidential information
Each party shall treat as confidential all information obtained as a
result of negotiating and entering into this agreement or, in the case
of a Shareholder, through its interest in the Company or any of its
business or assets and which relates to:
(A) the provisions of this agreement;
(B) the negotiations relating to this agreement;
(C) the Company or its business or assets; or
(D) any Shareholder or its business or assets.
26.2 Use of Confidential information
Each party shall:-
(A) not disclose any such confidential information to any person
other than:
34
(i) a Director appointed by it or a member of its Group,
or any of its directors or employees, or those of any
member of its Group whose duties include the management
or monitoring of the business of the Company and who
needs to know such information in order to discharge
his duties; or
(ii) a person in connection with a sale process the aim of
which is that Shares are bona fide transferred under
clause 14 (Pre-emption rights), clause 15 (Tag Along
Rights) or clause 16 (Drag Along Rights); or
(iii) pursuant to clause 6.2; or
(iv) (in the case of the Purchaser) Alchemy, for the
purpose of enabling Alchemy to comply with any
information disclosure obligation applicable to it,
but then only to the extent necessary to comply with
such obligation;
(B) not use any such confidential information other than for the
purpose of managing or monitoring its investment in the
Company; and
(C) procure that any person to whom such confidential information
is disclosed by it complies with the restrictions set out in
this clause 26 as if such person were a party to this
agreement.
26.3 Permitted disclosure
Notwithstanding the previous provisions of this clause 26, any party
may disclose any such confidential information:-
(A) if and to the extent required by law or for the purpose of any
judicial proceedings;
(B) if and to the extent required by any securities exchange or
regulatory or governmental body to which that party is
subject, wherever situated, including (amongst other bodies)
the Financial Services Authority, the London Stock Exchange
plc or The Panel on Takeovers and Mergers, whether or not the
requirement for information has the force of law;
(C) to its professional advisers, auditors and bankers; or
(D) if and to the extent the information has come into the public
domain through no fault of that party.
The parties agree that, notwithstanding any provision to the contrary
in the Regus Brand Agreement and/or the Services Agreement, each of
them shall procure that the parties to the Regus Brand Agreement and
the Services Agreement shall not be bound by the confidentiality
provisions of those agreements to the extent that they make disclosure
of information referred to in clause 26.1 for a purpose referred to in
clause 26.2(A)(ii).
36
26.4 Duration of obligations
The restrictions contained in this clause 26 shall continue to apply to
each party (including any Shareholder who has ceased to hold Shares)
without limit in time.
27. ANNOUNCEMENTS
27.1 Restriction on announcements
No announcement concerning this agreement or the business or assets of
the Company shall be made by any party without the prior written
approval of RML and the Purchaser, such approval not to be unreasonably
withheld or delayed.
27.2 Permitted announcements
Notwithstanding the previous provisions of this clause 27; any party
may, whenever practicable after consultation with the other parties,
make an announcement concerning this agreement or the business or
assets of the Company if required by:
(A) law; or
(B) any securities exchange or regulatory or governmental body to
which that party is subject, wherever situated, including
(amongst other bodies) the Financial Services Authority, the
London Stock Exchange plc or The Panel on Takeovers and
Mergers, whether or not the requirement has the force of law.
27.3 Duration of restrictions
The restrictions contained in this clause 27 shall continue to apply to
each party (including any Shareholder who has ceased to hold Shares)
without limit in time.
28. TERMINATION
This agreement shall terminate immediately (except for those provisions
expressly stated to continue beyond termination of this agreement) and
without prejudice to any rights or liabilities arising under this
agreement prior to such termination:-
(A) if the Shares are listed on, or dealings in the Shares
commence in, a securities market;
(B) if only one Shareholder (together with members of its Group)
remains holding Shares;
(C) if no Shares are held by any Shareholder or members of their
respective Groups;
(D) in respect of the rights and obligations of any Shareholder if
it and all members of its Group cease to hold any Shares and
each person to whom Shares have been transferred by that
Shareholder and members of its Group has entered into a Deed
of Adherence in the form set out in schedule 1.
36
29. ASSIGNMENT
This agreement shall be binding on and enure for the benefit of each
party's successors in title. No party shall assign, or declare any
trust in favour of a third party over, all or any part of the benefit
of, or its rights or benefits under, this agreement.
30. CONSORTIUM RELIEF
30.1 If in any Accounting Period, the Company or any member of the same
group as the Company (in this clause, "the Group") has trading losses
or other amounts available for surrender by way of Consortium Relief,
the Company or that member of the UK's Group shall not surrender any
such losses or other amounts to any Member of the Consortium or a
member of the same Group as a member of the Consortium by way of
Consortium Relief except such losses or other amounts, and on such
terms, as may be agreed in writing by all Members of the Consortium for
the time being.
30.2 If in any Accounting Period of the Company, a company (the
"Surrenderer") has trading losses or other amounts available for
surrender by way of Consortium Relief (a "Surrenderable Amount") which
it wishes and is able to surrender to the Company or a member of the
same Group as the Company (the "Claimant") then the Claimant shall
claim Consortium Relief from the Surrenderer to such extent as will
enable the Surrenderer to surrender its Maximum Surrenderable Amount
(which in relation to each Surrenderer is the whole of its
Surrenderable Amount or, if less, so much of its Surrenderable Amount
as may validly be surrendered to the Claimant by the Surrenderer
pursuant to Section 403C ICTA) and the Surrenderer shall duly make
Consortium Relief surrenders corresponding to the aforesaid Consortium
Relief claims and each of the Parties agrees to consent to any such
claim, notify such consent to the Inspector of Taxes and take all other
steps necessary to give full effect to such surrender;
30.3 Where in any Accounting Period a Claimant is Regus Business Centres
(UK) Limited ("RBC") and it accepts a surrender of trading losses or
other amounts available for surrender by way of group relief or
Consortium Relief from Park Business Centres Limited pursuant to the
shareholders' agreement relating to the affairs of that company dated 4
August 1999 and made between Arlington Securities (1998) Limited, Regus
Business Centres (UK) Limited, Arlington Securities plc, Regus Business
Centres plc and Park Business Centres Limited, the amount so
surrendered by Park Business Centres Limited to RBC shall be deemed for
the purposes of this clause to have been made to the maximum possible
extent by members of the Consortium other than the Purchaser so as to
preserve the Maximum Surrenderable Amount of the Purchaser. The
Consortium Members other than the Purchaser shall procure that RBC does
not accept such surrenders if to do so would prejudice the Maximum
Surrenderable Amount of the Purchaser unless RBC is contractually
obliged to do so.
30.4 Where an amount is actually (as opposed to deemed to be surrendered
pursuant to clause 30.3) surrendered by a Surrenderer to the Claimant
by way of Consortium Relief pursuant to clause 30.2 above the Claimant
shall pay to the Surrender by way of consideration for the Surrender an
amount equal to the amount of corporation tax from which the Claimant
is relieved by virtue of the surrender being validly and effectively
made such payment to be made as soon as the Claimant obtains such
relief;
37
30.5 If, once a surrender has been made to a Claimant under clause 30.2
above, it is finally determined that the Claimant's liability to
corporation tax for the Accounting Period in question is such that it
cannot fully utilise the amount surrendered to it, then the Surrenderer
of that amount shall repay to the Claimant so much of the amount paid
to it as consideration for the surrender under clause 30.4 above as
represents the unusable portion of the amount surrendered (and if there
is more than one Surrenderer then the amount which each is to repay
shall be apportioned between them in proportion to the amount actually
received by them pursuant to clause 30.4); and
30.6 If, once a surrender has been made to a Claimant under clause 30.2
above, it is finally determined that the amount available to the
Surrenderer to surrender by way of Consortium Relief is less than the
amount purported to have been surrendered by it under clause 30.2 and
for which it has been paid under clause 30.4 then the Surrender shall
repay to the Claimant so much of the consideration paid to it under
clause 30.4 as represents the amount paid for that part of the
Surrenderable Amount which it is no longer able to validly surrender by
way of Consortium Relief.
30.7 For the purposes of this clause 30, "Consortium Relief" means group
relief by way of a consortium claim within the meaning of section
402(3) of the Income and Corporation Taxes Act 1988 ("ICTA") and
"Member of the Consortium" is a reference to one of the companies
between them which own three-quarters or more of the ordinary share
capital of the Company within the meaning of section 413(6).
31. ENTIRE AGREEMENT
31.1 Whole and only agreement
This agreement constitutes the whole and only agreement between the
parties relating to the management and ownership of the Company and
matters incidental thereto, provided that this agreement is without
prejudice to the provisions of the [Share Purchase Agreement, Services
Agreement and Regus Brand Agreement.
31.2 Variation
This agreement may only be varied in writing signed by each of the
parties.
31.3 Conflict with Articles of Association
In the event of any ambiguity or discrepancy between the provisions of
this agreement and the Articles of Association, the provisions of this
agreement shall prevail as between the Shareholders for so long as this
agreement remains in force. Each of the Shareholders shall exercise all
voting and other rights and powers available to it so as to give effect
to the provisions of this agreement and, if necessary, to procure (so
far as it is able to do so) any required amendment to the Articles of
Association.
38
32. NOTICES
32.1 Notices to be in writing
A notice under this agreement shall only be effective if it is in
writing.
32.2 Addresses
Notices under this agreement shall be sent to a party at its address or
number and for the attention of the individual set out below:
Party and title of individual Address Facsimile no.
----------------------------- ------- -------------
▇▇▇ 2002 Limited 20 Bedfordbury, 020 7240 9594
▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇
20 Bedfordbury,
with a copy to Alchemy Partners LLP London, 020 7240 9594
▇▇▇▇ ▇▇▇
Regus Management Limited ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 01932 895 263
Hillswood Business Park,
Attention: Company Secretary Chertsey, Surrey
KT16 0RS
Regus Business Centre BV c/- Regus Management
Limited
3000 Hillswood Drive
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Regus PLC ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ Business Park, 01932 895 263
Attention: Company Secretary ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Regus Holdings (UK) Limited ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 01932 895 263
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Provided that a party may change its notice details on giving notice to
the other parties of the change in accordance with this clause 32.
32.3 Receipt of Notices
(A) Any notice given under this agreement shall, in the absence of
earlier receipt, be deemed to have been duly given as follows:
(i) if delivered personally, on delivery;
(ii) if sent by first class inland post, two clear
Business Days after the date of posting;
39
(iii) if sent by airmail, six clear Business Days after
the date of posting;
(iv) if sent by telex, when despatched provided the
intended recipient's answerback appears correctly
at the start and end of the sender's telex; and
(v) if sent by facsimile on the date it is sent provided
a confirmation of successful transmission is
produced by the sending fax machine.
(B) Any notice given under this agreement outside Working Hours in
the place to which it is addressed shall be deemed not to have
been given until the start of the next period of Working Hours
in such place.
33. REMEDIES AND WAIVERS
33.1 Delay or omission
No delay or omission by any party to this agreement in exercising any
right, power or remedy provided by law or under this agreement shall:
(A) affect that right, power or remedy; or
(B) operate as a waiver of it.
33.2 Single or partial exercise
The single or partial exercise of any right, power or remedy provided
by law or under this agreement shall not preclude any other or further
exercise of it or the exercise of any other right, power or remedy.
33.3 Cumulative rights
The rights, powers and remedies provided in this agreement are
cumulative and not exclusive of any rights, powers and remedies
provided by law.
33.4 Damages not an adequate remedy
Notwithstanding any express remedies provided under this agreement and
without prejudice to any other right or remedy which any party may
have, each party acknowledges and agrees that damages alone may not be
an adequate remedy for any breach by it of the provisions of this
agreement, so that in the event of a breach or anticipated breach of
such provisions, the remedies of injunction and/or an order for
specific performance would in appropriate circumstances be available.
34. NO PARTNERSHIP
Nothing in this agreement and no action taken by the parties under this
agreement shall constitute a partnership, association or other
co-operative entity between any of the parties or constitute any party
the agent of any other party for any purpose.
40
35. COSTS AND EXPENSES
Each party shall pay its own costs and expenses in relation to the
negotiation, preparation, execution and carrying into effect of this
agreement.
36. COUNTERPARTS
This agreement may be executed in any number of counterparts, and by
the parties on separate counterparts, but shall not be effective until
each party has executed at least one counterpart. Each counterpart
shall constitute an original of this agreement, but all the
counterparts shall together constitute but one and the same instrument.
37. CHOICE OF GOVERNING LAW AND SUBMISSION TO JURISDICTION
This agreement is to be governed by and construed in accordance with
English law. Each of the parties hereby submits to the exclusive
jurisdiction of the Courts of England and Wales in connection with any
claim, dispute or matter arising out of or relating to this agreement.
38. AGENT FOR SERVICE OF PROCESS
BV irrevocably appoints RML to be its agent for the receipt of Service
Documents and all notices under this agreement. BV agrees that any
Service Document may be effectively served on it in connection with any
proceedings in England and Wales by service on its agent effected in
any manner permitted by the Civil Procedure Rules. For the purpose of
this clause 39. "Service Document" means a claim form, application
notice, order or judgement.
39. THIRD PARTY RIGHTS
The parties to this agreement do not intend that any term of this
agreement (with the exception of clauses 25.1 and 25.2 should be
enforceable, by virtue of the Contracts (Rights of Third Parties) ▇▇▇
▇▇▇▇, by any person who is not a party to this agreement.
IN WITNESS of which this agreement has been executed and delivered as a deed on
the date which first appears on page 1 of this agreement.
Executed as a deed by ) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ 2002 LIMITED acting by a ) Director
director and a director/secretary )
) ............................
Director Secretary
41
Executed as a deed by ) ▇▇▇▇ ▇▇▇▇▇
REGUS MANAGEMENT LIMITED acting by ) Director
a director and a director/secretary )
) ▇▇▇▇ ▇▇▇▇
Director Secretary
Executed as a deed by ) ▇▇▇▇ ▇▇▇▇▇
REGUS BUSINESS CENTRE BV acting by ) Director
a director and a director/secretary )
) ▇▇▇▇ ▇▇▇▇
Director Secretary
Executed as a deed by ) ▇▇▇▇ ▇▇▇▇▇
REGUS PLC acting by a director and ) Director
a director/secretary )
) ▇▇▇▇ ▇▇▇▇
Director Secretary
Executed as a deed by ) ▇▇▇▇▇▇▇ ▇▇▇▇▇
REGUS HOLDINGS UK LIMITED acting ) Director
by a director and a )
director/secretary ) ▇▇▇ ▇▇▇▇▇
Director Secretary
42
CONFORMED COPY
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DATED 30 December 2002
▇▇▇ 2002 LIMITED
and
REGUS MANAGEMENT LIMITED
and
REGUS BUSINESS CENTRE BV
and
REGUS PLC
and
REGUS HOLDINGS (UK) LIMITED
------------------------------
SHAREHOLDERS AGREEMENT
------------------------------
▇▇▇▇▇▇▇▇▇ and May
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(AGR/TPB)
CD031830043
CONTENTS
Page
1. DEFINITIONS AND INTERPRETATION 1
2. BUSINESS OF THE COMPANY 7
3. MANAGEMENT AND MANAGEMENT APPOINTMENTS 7
4. THE OPERATIONAL COMMITTEE 9
5. PROCEEDINGS OF THE BOARD 9
6. ACCESS TO INFORMATION AND ACCOUNTS 11
7. BUSINESS PLANS 12
8. DIVIDEND POLICY 13
9. RESERVED MATTERS 13
10. DEADLOCK RESOLUTION 16
11. ISSUE OF SHARES 17
12. RESTRICTIONS ON DEALING WITH SHARES 17
13. PERMITTED TRANSFERS 17
14. PRE-EMPTION RIGHTS 18
15. TAG ALONG RIGHT 22
16. DRAG ALONG RIGHT 23
17. TRANSFER OF SHARES ON ▇▇▇▇▇▇▇ ▇▇
▇▇. INELIGIBLE PERSONS 28
19. COMPLETION OF SHARE TRANSFERS 28
20. CONSENT TO TRANSFER FOR THE PURPOSES OF THE ARTICLES 30
21. EFFECT OF DEED OF ADHERENCE 30
22. PRESCRIBED VALUE 30
23. SHAREHOLDER UNDERTAKINGS 30
24. UNDERTAKINGS BY THE COMPANY 31
25. PROTECTIVE COVENANTS 31
26. CONFIDENTIALITY 34
27. ANNOUNCEMENTS 36
28. TERMINATION 36
29. ASSIGNMENT 37
30. CONSORTIUM RELIEF 37
31. ENTIRE AGREEMENT 38
32. NOTICES 38
33. REMEDIES AND WAIVERS 40
34. NO PARTNERSHIP 40
35. COSTS AND EXPENSES 41
36. COUNTERPARTS 41
37. CHOICE OF GOVERNING LAW AND SUBMISSION TO JURISDICTION 41
38. AGENT FOR SERVICE OF PROCESS 41
39. THIRD PARTY RIGHTS 41