EXHIBIT 2.18
DATED 11 May 1998
AGREEMENT
for the sale and purchase
of the issued share capital
of
Denovo New Media Limited
▇▇▇▇▇ ▇▇▇▇▇▇▇ (1)
IXL LONDON LIMITED (2)
SHARE SALE AND PURCHASE AGREEMENT
DATE
11 May 1998
PARTIES
(1) ▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("the Vendor"); and
(2) IXL LONDON LIMITED (No.3435961) whose registered office is at ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇-▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("the Purchaser").
INTRODUCTION
The Company was incorporated in England and Wales on 26 July 1996 under the
Companies ▇▇▇ ▇▇▇▇ and is registered under number 3229920 as a private
company. It has at the date of this Agreement an authorised share capital
of (Pounds)100,000 divided into 100,000 ordinary shares of (Pounds)1 each,
of which 25,000 of the ordinary shares have been issued and are fully paid
or credited as being fully paid. All the shares in issue are legally and
beneficially held by the Vendor.
OPERATIVE PROVISIONS
1 INTERPRETATION
1.1 In this Agreement (including the Introduction and Schedules), except where
a different interpretation is necessary in the context, the following
expressions shall have the following meanings:
Accounts Date 31 March 1998
Company Denovo New Media Limited of which short
particulars are set out in Schedule 1
Completion completion of the acquisition of the Shares in
accordance with the terms of clause 4
Connected Person a connected person as determined in accordance
with Section 839 of the Income and Corporation
Taxes Act 1988
Consideration the consideration referred to in clause 3
Consideration Shares the number of shares of IXL Holdings, Inc. class B
common stock $0.1 par value to be calculated in
accordance with clause 3
Deed of Covenant the deed of covenant relating to Taxation in the
agreed form
Disclosure Letter a letter in the agreed form bearing the same date
as this Agreement from the Vendor to the Purchaser
Intellectual Property copyrights, trade and service marks, trade names,
rights in logos and get-up, inventions,
confidential information, trade secrets and know-
how, registered designs, design rights, letters
patent, utility models, semi-conductor
topographies, all rights of whatsoever nature in
computer software and data, all rights in plant
varieties, all rights of privacy and all
intangible rights and privileges of a nature
similar to any of the foregoing, in every case in
any part of the world and whether or not
registered; and including all granted
registrations and all applications for
registration in respect of any of the same
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IXL Stockholders' Agreement a stockholders agreement dated 17
December 1997 between IXL Holdings, Inc.
and IXL Holdings, Inc.'s Shareholders
Management Accounts the balance sheet of the Company as at
the Accounts Date and the profit and
loss account of the Company for the
period ended on the Accounts Date in the
agreed form
Relief the same meaning as in the Deed of
Covenant
Restricted Business a business in competition with the
business carried out by the Company at
the date of this Agreement
Shares the 25,000 issued ordinary shares of
(Pounds)1 each in the capital of the
Company
Taxation and Taxing Authority the same respective meanings as in the
Deed of Covenant
Turnover invoices issued by the Company less VAT
for the period from 1 January 1997 to 31
December 1997 to arms length customers
and clients of the Company where such
invoices have been paid or, in the
prudent opinion of the Company's
auditors, are collectable and for these
purposes there shall be deducted any bad
debts and this figure shall be subject
to any other adjustments to be agreed by
the parties
VAT Value Added Tax
Warranty the warranty, representation and
undertaking given in clause 5.1
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▇▇▇▇▇▇▇▇ Statements the statements set out in Schedule 2
2 SALE AND PURCHASE OF THE SHARES
The Vendor will sell as legal and beneficial owner and with full title
guarantee and the Purchaser will purchase the Shares free from all options,
liens, charges and other encumbrances and with all rights attaching to the
Shares with effect from Completion.
3 CONSIDERATION
3.1 In consideration for the sale of the Shares, the Purchaser shall procure
the issue of the Consideration Shares to the Vendor.
3.2 The Vendor shall be entitled to the Consideration Shares issued as fully
paid and nonassessable based on the following equation:
CS = W-(X+Y+Z)
-----------
$5
where:
CS = the number of Consideration Shares to which the Vendor shall be
entitled
W = the Turnover of the Company expressed in US dollars
X = all or any liabilities, costs and expenses of the Company incurred at
any time prior to the issue of the Consideration Shares other than
with the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇ of the
Purchaser where such sum has not been included or accounted for in
the accounts to be prepared in accordance with clause 3.3, to include
without limitation rates on premises previously occupied by the
Company and any fees due to previous directors expressed in US
dollars
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Y = the net outstanding indebtedness of the Company (including, without
limitation, debt for borrowed money) as at the Accounts Date
expressed in US dollars
Z = (Pounds)30,000 being the amount paid by the Vendor to Interactive
Communications Limited in respect of the purchase of the Shares by
the Vendor expressed in US dollars
$5 = the value per share to be attributed to each Consideration Share
where all sums in pounds stirling for the purposes of this clause 3.2 shall
be converted into US dollars at the rate of 1.65 US dollars to one pound
stirling
3.3 The Vendor shall procure that the Company's auditors prepare and audit the
Company's accounts in respect of the financial period to 31 March 1998 and
certify to the Purchaser the number of Consideration Shares to be issued
and allotted to the Vendor pursuant to clause 3.2 within 30 days of the
date of this Agreement the costs of such audit and certification to be at
the expense of the Vendor. The Purchaser shall have a period of twenty one
business days from the date of such notification to raise any objection in
relation to the number of such shares to be issued. If no such objection is
made by the Purchaser, the determination of the Company's auditors shall be
deemed final. In the event of dispute, the parties shall use their
reasonable endeavors to settle such dispute but if it shall not have been
settled within twenty eight days of the notification by the Purchaser to
the Vendor of any objection to the Company's auditors certification then
the number of Consideration Shares shall be determined by the Purchaser's
auditors, who shall act as experts and not arbitrators, and whose decision
shall be final.
4 COMPLETION
4.1 Completion of this Agreement is to take place at ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ (or such other location as the Vendor and the Purchaser shall
agree) immediately following exchange this Agreement.
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4.2 At Completion, the Vendor shall deliver to the Purchaser the following:
(a) share certificates in respect of the Shares;
(b) duly executed transfers in respect of the Shares in favour of the
Purchaser (or as it may direct);
(c) the resignations of each of the directors and the secretary confirming
that there are no claims against the Company in a form reasonably
required by the Purchaser;
(d) an irrevocable power of attorney executed by the Vendor to enable the
Purchaser (during the period prior to the registration of the transfer
of the Shares) to exercise all voting and other rights attaching to
the Shares;
(e) an acknowledgement from the Vendor in a form reasonably required by
the Purchaser confirming that at and immediately after Completion
nothing is owing nor are there any outstanding claims between the
Vendor and the Company and to the extent that there are possible
claims, then these are waived;
(f) certificate of incorporation, certificate of incorporation on change
of name, common seal, statutory register, minute books, share
certificate book, books of account and all other books (all duly
written up to date);
(g) any service agreements to which the Company is a party;
(h) releases and discharges from the Company's bankers and all other
persons of any fixed or floating charges over any property or any
other assets of the Company;
(i) a tax deed of covenant in a form reasonably required by the Purchaser;
(j) the Disclosure Letter duly signed by the Vendor;
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(k) all waivers and consents in a form reasonably required by the
Purchaser signed by the Vendor or any third party to enable the
Purchaser or its nominee to be registered as the holder of the Shares
(the Vendor hereby irrevocably waiving all and any rights of pre-
emption to which it may be entitled under any articles of association,
agreement, law or otherwise in respect of the transfer of the Shares
delivered under this Agreement); and
(l) certified copies of board resolutions of the Company in a form
reasonably required by the Purchaser between the parties to approve,
inter alia, the transfer of the Shares, the appointment of such new
directors, secretary and auditors as the Purchaser shall direct and
the adoption of new bank mandates.
4.3 If for any reason the provisions of clause 4.2 are not fully complied with,
the Purchaser shall be entitled (in addition and without prejudice to any
other right or remedy available to it) to elect:
(a) to rescind this Agreement in which case the Purchaser shall not be
obliged to purchase any of the Shares or issue any of the
Consideration Shares; or
(b) to fix a new date for Completion; or
(c) to proceed to Completion so far as practicable, the Vendor then being
obliged to use its best endeavors to perform or procure the
performance of any of the outstanding provisions of clause 4.2
4.4 Following Completion the Vendor hereby agrees to enter into the following
documents forthwith upon request by the Purchaser:
(a) a service agreement between the Vendor and the Purchaser in a form to
be agreed between the parties; and
(b) following issue of the Consideration Shares, the IXL Stockholders'
Agreement.
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4.5 The Purchaser shall procure the issue and allotment to the Vendor of the
Consideration Shares as soon as reasonably practicable following agreement
or determination of the number of Consideration Shares to be issued in
accordance with clause 3.3.
5 WARRANTY
5.1 The Vendor hereby:
(a) acknowledges that the Purchaser has been induced to enter into this
Agreement and to purchase the Shares on the basis of the Warranty; and
(b) warrants, represents and undertakes to the Purchaser that each and
every Warranty Statement in schedule 2 is true, correct, accurate and
not misleading at the date of this Agreement, subject only to the
matters stated in the Disclosure Letter, provided that such matters
will be treated as qualifying or limiting the application of any
Warranty Statement only to the extent that such disclosure is fair,
accurate, and relates specifically to the subject matter thereof and
does not omit any fact which may render the same untrue, incorrect,
inaccurate or misleading.
5.2 The Warranty is a separate and independent warranty, representation and
undertaking in relation to each of the Warranty Statements and no Warranty
Statement shall be limited by reference to any other Warranty Statement or
by the other terms of this Agreement.
5.3 No claim may be made against the Vendor pursuant to the Warranty in respect
of any matter of which the Purchaser has knowledge at the date of this
Agreement.
5.4 No claim may be made against the Vendor pursuant to the Warranty and any
breaches thereof unless notice of such claim is served on the Vendor in
writing specifying the nature of such claim and the amount of such claim
within two years of the date of this Agreement.
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5.5 The total amount of liability of the Vendor in respect of all claims shall
not exceed the Consideration Shares valued at the date of this Agreement at
US$5 per share.
6 REMEDIES OF THE PURCHASER
6.1 If any Warranty Statement shall prove to be untrue, inaccurate, incorrect
or misleading, the Purchaser may at its option and without prejudice to any
other right or remedy which may be available to it:
(a) claim for all loss suffered by it in consequence of such breach of
Warranty (and for this purpose an amount equal to, without limitation,
the amount of any stamp duty (including any penalty for late stamping)
payable on any document in respect of the title of the Company to any
property which ought to be in the possession of the Company as at the
date of Completion and which has not been properly stamped shall be
deemed to be a loss suffered by the Purchaser (whether or not that
Company has a legal obligation to present or re-present the same for
stamping); and
(b) require the Vendor to pay to the Company or the Purchaser (as the
Purchaser may require) such sum as is equal to the amount by which:
(i) the assets of the Company are less, or less valuable, or their
liabilities greater, than:
(a) either the values at which the same were included in the
Accounts; or
(b) if the Purchaser so elects, than they would have been if
the statement concerned had been true, accurate and correct
and not misleading;
and for these purposes, without limitation, an amount equal to the
amount of any such stamp duty as is described in paragraph (a) of this
clause 6.1 shall be deemed to be a liability of the Company; and
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(c) claim for all reasonable legal costs, charges and expenses incurred or
payable by the Purchaser or the Company either before or after the
commencement of any action in connection with any matter referred to
in this clause 6.1;
and so that the exercise by the Purchaser of any of the additional remedies
set out in this clause 6.1 shall be without prejudice to any other of them.
6.2 No provision of this Agreement shall operate to exclude, restrict or
otherwise impair any right or remedy (including, without limitation any
right to damages and equitable remedies of all kinds) other than any right
to rescission following Completion to which the Purchaser is or becomes
entitled (or, but for the provision in question, would be or become
entitled) by virtue of legislation or otherwise under the general law
applicable in England or elsewhere.
6.3 If the Vendor is required by law to make any deduction or withholding from
any payment due under the terms of this Agreement, it shall do so and the
sum due from the Vendor in respect of such payment shall be increased to
the extent necessary to ensure that after the making of such deduction or
withholding the Purchaser receives and retains (free of any liability in
respect of any such deduction or withholding) a net sum equal to the sum
the Purchaser would have received and retained had no such deduction or
withholding been required to be made.
6.4 If any sum payable by the Vendor to the Purchaser under this Agreement
shall be subject to a tax liability in the hands of the Purchaser, the
Vendor shall be under the same obligation to make an increased payment in
relation to that tax liability as if the liability were a deduction or
withholding required by law.
7 INDEMNITY
The Vendor hereby agrees and undertakes to indemnify and keep the Purchaser
fully indemnified from and against all actions proceedings costs claims and
demands which may be suffered or incurred by the Purchaser by reason of any
default on the part of the Vendor in the performance or observance of any
undertakings covenants and
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obligations contained in any lease of any property occupied at any time
prior to Completion by the Company and will pay and make good to the
Purchaser the amount of any losses damages costs and reasonable and proper
expenses suffered by the Purchaser thereby.
8 RESTRICTIONS
8.1 To ensure that the Purchaser receives the full benefit of the goodwill of
the business of the Company, the Vendor hereby represents and undertakes
that he will not for a period of one year from Completion either alone or
for, together with or as agent, officer or employee of any other person,
firm or company or through the medium of any company directly or indirectly
for the purposes of the Restricted Business:
(a) solicit, interfere with or attempt to entice away from the Company any
person who is at the date hereof or was within the previous 12 months
an employee, consultant or agent of the Company on the date of this
Agreement or during the 12 months immediately preceding the date of
this Agreement; or
(b) solicit, interfere with or attempt to entice away from the Company any
person who is reasonably considered by the Company to be or have been
a regular client or customer of the Company on the date of this
Agreement or during the 12 months immediately preceding the date of
this Agreement; or
(c) carry on or be engaged, concerned, interested or hold shares or other
securities in any company or businesses which competes in the United
Kingdom with the business of the Company at the date of this
Agreement.
8.2 Each of the restrictions contained in each paragraph of clause 8.1 is a
separate and distinct restriction and is to be construed separately from
the other restrictions. The Vendor acknowledges that the restrictions are
reasonable when taken together as well as individually, that the duration,
extent and application of each restriction are no greater than is necessary
for the protection of the goodwill of the businesses of the
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Company and that the consideration paid by the Purchaser for the Shares
takes into account and provides adequate compensation for the restraints
and restrictions imposed. Should any restriction be found to be void or
unenforceable without the deletion of some part of it or the reduction in
area or duration specified, that restriction shall apply with such
modification as may be necessary to make it valid.
8.3 The parties agree that the benefit of the covenants and undertakings given
in this clause shall be assignable in whole or in part by the Purchaser to
and become enforceable by the Company and any subsidiary or holding company
of any of the Company or the Purchaser which from time to time is the
holder of the Shares or to which any part of the business(es) of the
Company has been transferred.
9 GENERAL PROVISIONS
9.1 Without prejudice to any right or remedy available to the Purchaser under
this Agreement or otherwise, the Vendor shall be liable on an indemnity
basis for all reasonable costs, claims and expenses incurred by the
Purchaser in connection with any claim arising out of any warranty,
undertaking or indemnity contained in this Agreement or any document
specified herein (or any breach thereof).
9.2 The waiver by the Purchaser of any right or breach, default or omission by
the Vendor of any of the terms of this Agreement or any document specified
herein shall not take effect unless in writing and shall not constitute a
continuing waiver of the right waived or apply to, or operate as a waiver
of, any other breach, default or omission and any forbearance in enforcing
any right shall not constitute a waiver.
9.3 No party shall divulge to any third party (other than their respective
professional advisers or insurers) the fact that this Agreement or any
document specified herein has been entered into or any information
regarding its terms or any matters contemplated by this transaction or make
any announcement relating to it without the prior agreement (not to be
unreasonably withheld or delayed) of the other parties unless such
announcement is required by law. Any announcement shall in any event
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be made or issued only in a form approved by the Purchaser and with the
consent of the Vendor (not to be unreasonably withheld or delayed).
9.4 This Agreement, together with any document expressly referred to in any of
its terms, contains the entire agreement between the parties relating to
the subject matter covered. No oral explanation or oral information given
by any party shall alter the interpretation of this Agreement.
9.5 The Vendor hereby undertakes with the Purchaser at the request of the
Purchaser and at the expense of the Vendor to do or procure to be done all
such further acts and things and execute or procure to be executed all such
further deeds and documents as may be necessary or desirable fully and
effectively to vest in the Purchaser the legal and beneficial ownership of
the Shares and the benefits of this Agreement and any document specified
herein and, pending such vesting, the Vendor shall hold such Shares and
benefits in trust for the Purchaser and shall receive all monies in
connection therewith as trustee of the Purchaser and shall account to the
Purchaser forthwith on receipt.
9.6 This Agreement may be executed in two or more counterparts each of which
shall be deemed an original but which taken together shall constitute a
single agreement.
9.7 This Agreement and all documents supplemental thereto are governed by and
are to be construed in accordance with English law.
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SCHEDULE 1
PARTICULARS OF THE COMPANY
Number: 3229920
Status: a private company limited by shares
Registered Office: Second ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇-▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Authorized share capital: 100,000 (Pounds) divided into 100,000 shares
of 1 (Pounds) each
Issued share capital: 25,000 shares of (Pounds)1 each
Shareholders and shareholdings: ▇▇▇▇▇ ▇▇▇▇▇▇▇ 25,000 shares
Director: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Secretary: Hassy ▇▇▇▇▇
Charges: None
SCHEDULE 2
WARRANTY STATEMENTS
1 INFORMATION, FORMAL AND LEGAL
1.1 All information supplied by the Vendor, the Company or its directors,
employees or advisers to the Purchaser or its advisers concerning the
Company prior to Completion (including without limitation the information
referred to in the Introduction and Schedule 1) is and will be true,
complete, accurate and not misleading in all respects.
1.2 The Vendor is not aware of any fact or matter not disclosed in writing to
the Purchaser, the disclosure of which might reasonably affect the
willingness of the Purchaser to acquire the Shares or the price at or terms
upon which the Purchaser would be willing to acquire them.
1.3 All statutory, municipal, governmental, court and other requirements
applicable to the formation, continuance in existence, creation and issue
of securities, management, property or operations of the Company have been
complied with and all licences and consents (including planning consents)
involved in the carrying on of the business of the Company, have been
obtained and complied with and the Vendor is not aware of any contemplated
revocation of any such licence or consent. The Company's books of accounts
and other records are complete and accurate and the Company has not
committed any illegal or unlawful act and is not liable for any breach of
covenant, consent, licence, permission, contract or statutory duty (all
requisite or necessary consents, licences and permissions having been
obtained).
2 THE SHARES
The Vendor is the sole legal and beneficial owner of all the Shares (that
represent the entire issued share capital of the Company, there being no
other share or loan capital in the Company or any share or loan capital
under option (actual, contingent or otherwise) to purchase or subscribe)
and will at Completion have the right and power
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to sell and transfer or procure the transfer of, unencumbered, the entire
legal and beneficial ownership of the Shares with full title guarantee free
of all options, liens, charges or other encumbrances and together with all
dividends, distributions, rights declared, paid, credited or arising to the
Purchaser in accordance with the provisions of this Agreement.
3 ACCOUNTS
3.1 The Management Accounts and the accounting records of the Company have been
prepared in accordance with generally accepted accountancy principles. They
give a true and fair view of the state of affairs and the assets and
liabilities of the Company as at the Accounts Date and of the profits or
losses of the Company for the period concerned.
3.2 The Management Accounts make proper provision for and (where appropriate)
disclose and take into account as at the Accounts Date, all liabilities
(actual, contingent or disputed), all capital commitments (actual or
contingent) (if any) and all bad and doubtful debts.
3.3 Since the Accounts Date no dividend or other distribution has been declared
or paid on, and no capital distribution made or agreed to be made in
respect of, any share capital of the Company and all amounts received by
the Company have been paid into its account and appear in the Company's
books of account.
3.4 Since the Accounts Date the Company has carried on in the ordinary and
usual course the business carried on by it at that date.
3.5 Since the Accounts Date there has been no material adverse change in the
Company's financial position the value of the Company's net assets has not
reduced and no material liabilities (actual, contingent or disputed) have
arisen or been incurred.
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3.6 All the book and other debts of the Company outstanding at Completion are
the absolute property of the Company and will (save insofar as a specific
provision has been made in the Accounts therefor) be good and collectable
in the ordinary course of business and in any event not later than two
months after Completion.
4 CONTRACTS
4.1 Save as disclosed to the Purchaser, the Company is not a party to any
material, unprofitable or onerous contract or any contract not on arm's
length terms and has not guaranteed any other person's liabilities nor is
it a party to any contract or arrangement with a Connected Person or a
director, employee or consultant of a Connected Person.
4.2 The Company is not in breach of any contract with any other party and no
other party has any right to terminate any agreement to which the Company
is a party.
4.3 Neither the Company nor the Vendor has any reason to believe that the
transactions contemplated by this Agreement will result in either loss of
business with any of the Company's present suppliers or customers or a
breach of any contract, covenant or licence or an employee handing in
notice.
5 STOCKS, ASSETS AND INSURANCE
5.1 All the assets of the Company are properly insured to their full
reinstatement value and all insurance policies of the Company are in full
force and effect and all premiums have been paid and there are no insurance
claims or possible insurance claims by the Company in existence.
5.2 The Company is the owner of and has good and marketable title to all the
assets used in its business and has all assets necessary to carry on its
business.
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5.3 The Company does not have outstanding any commitment for capital
expenditure. There is not outstanding any mortgage, charge or other
encumbrance on the whole or any part of the undertaking, property or assets
of the Company.
6 INTELLECTUAL PROPERTY
6.1 The businesses of the Company and the processes, data, material and
software employed by it and the goods, services and software supplied by it
in the United Kingdom or elsewhere in the world do not infringe, use,
involve the misappropriation of, or embody the subject matter of, or
require a licence under any Intellectual Property in which any other person
has rights of any nature; and no claims have been made by any person which,
if pursued, might be in breach of or be otherwise material to any of the
warranties in this or any other part of this paragraph 6.
6.2 No plant or equipment, goods, services, documentation, software, data or
other items used by the Company in the course of its businesses has or have
been supplied under any agreement or arrangement which precludes its or
their sale, transfer, assignment, disposal or use by any other person.
6.3 No Intellectual Property in which the Company has any interest and which
is, or is likely to be, material to the business of the Company is:
(a) being infringed, misappropriated or used without permission by any
other person; or
(b) subject to any licence, estoppel or authority or similar right in
favour of any other person.
6.4 All Intellectual Property which is registered in the name of the Company,
or in respect of which the Company has made application for registration,
is:
(a) legally and beneficially vested in the Company; and
(b) valid and enforceable.
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6.5 No other person has registered or applied to register in any country any
invention, topography, copyright work, design, trade or service ▇▇▇▇ or
name, plant variety, trade secret or know-how made, or claimed to be owned,
by the Company.
6.6 The licenses, agreements and arrangements have been entered into in the
ordinary course of business, are in full force and effect and no notice has
been given on either side to terminate any of them and no amendment made or
accepted to their terms since they were first entered into; and the
obligations of all parties under each of the same have been fully complied
with and no disputes exist or are anticipated in respect of any of them.
6.7 Other than to the Purchaser and the agents, employees or professional
advisers of the Purchaser and the Vendor, the Company has not knowingly
disclosed, or knowingly or recklessly permitted to be disclosed, or
undertaken or arranged to disclose, to any person any of their know-how,
trade secrets, confidential information or lists of customers or suppliers.
6.8 No claim has been made, and the Vendor is not aware of the possibility of
any claim for compensation by an employee of the Company carrying on trade
in the UK under Section 40 of the Patents ▇▇▇ ▇▇▇▇.
6.9 The Company does not operate as a computer bureau, as that term is defined
in the Data Protection ▇▇▇ ▇▇▇▇, in the United Kingdom and no notice of any
kind has been served on the Company under any provision under any part of
that Act or any analogous legislation in any part of the world. Insofar as
the Company is a "Data User" under the Act:
(a) all necessary applications for registration have been duly made; and
(b) the details supplied to the Registrar in relation to each application
are accurate and complete.
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6.10 The software, hardware and firmware referred to in the licenses,
agreements and arrangements is able, without upgrade or alteration and
without loss of performance or functionality or loss of or adverse effect
on any data to correctly receive, process and provide information
regarding or containing:
(a) dates prior to, during and after the year 2000; and
(b) currencies now used or due to be implemented throughout the European
Union.
7 TAXATION
7.1 Full provision or reserve for Taxation and deferred Taxation assessed or
likely to be assessed on the Company has been made in the Management
Accounts and the Company has within the relevant time limits therefor
correctly made all returns and payments required to be made by the Company
for any Taxation purposes and none of such returns or payments is the
subject of any dispute with any Taxing Authority and the Vendor is not
aware of any circumstance likely to give rise to such dispute.
7.2 The Company has duly paid all Taxation for which it is liable.
7.3 The Company has obtained full, complete, correct and up to date records,
invoices and other documents appropriate or requisite for establishing VAT
on supplies made to and by the Company.
7.4 All payments by the Company to any person which ought to have been made
under deduction of Taxation have been so made and the Company has (if
required by law so to do) accounted to the Inland Revenue for the Taxation
so deducted.
7.5 No Relief has been claimed by and/or given to the Company, or taken into
account in determining the provision for Taxation in the Management
Accounts, which could be withdrawn, postponed or restricted as a result of
any act, omission, or circumstance arising or occurring at or at any time
after Completion.
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7.6 No liability of the Company to Taxation has arisen or will arise up to
Completion save for corporation tax payable in respect of normal trading
profits earned by it or income tax deducted under the Pay as You Earn
system or national insurance contributions or VAT for which it is
accountable to any Taxing Authority.
7.7 The Company has made no loan, advance, release or given consideration or
effected a transaction falling within Sections 418 to 422 (inclusive) of
the Income and Corporation Taxes ▇▇▇ ▇▇▇▇.
7.8 The Company is resident in the United Kingdom for Taxation purposes and
will be so resident at Completion and is not and never has been resident
for any purpose in any other country and does not have and has never had
any permanent establishment in any other company.
7.9 No amount of an income nature which has been paid or is payable by the
Company or which it is under an obligation entered into before Completion
to pay is wholly or partly disallowable as a deduction, charge on income
or otherwise in computing its liability to Taxation.
7.10 All documents in the possession of the Company or to the production of
which it is entitled and which attract stamp or transfer duty in the
United Kingdom or elsewhere have been properly stamped.
8 LITIGATION
The Company is not involved in any litigation, prosecution, arbitration or
any other proceedings for the enforcement of rights or settlement of
disputes and no act, omission or event has occurred which has given rise
to a threat of such proceedings or which is likely to result in the
Company being involved in any such proceedings.
9 EMPLOYEES
9.1 The Company has no liability whatsoever (whether legally binding or not)
to make any payment to or for the benefit of any employee, officer,
consultant, independent
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contractor or agent in respect of past service, pension or the termination
of the employment or engagement of that or any other person (including,
without limitation, payments for wrongful or unfair dismissal, loss of
office or redundancy) and the Company has no superannuation fund,
retirement benefit or other pension schemes or arrangements and no
liability to make any payment in respect of any of the same.
9.2 Full details of all employment, engagement, remuneration and notice terms
of all employees, directors, consultants, independent contractors or
agents of the Company have been disclosed to the Purchaser and all
remuneration due to them up to Completion has been paid and all of their
employment, engagement and office terms can be terminated by the Company
on less than three months' notice.
9.3 There is no outstanding commitment (whether legally binding or not) to
increase the remuneration of any officer, employee, consultant,
independent contractor or agent of the Company.
10 PROPERTIES
The Company does not own or have any interest in any land or building and
the Company has not entered into any legally binding agreement for the
purchase of any such interest.
11 BORROWINGS
Full details of all limits on the Company's bank overdraft facilities and
all borrowings of the Company have been disclosed to the Purchaser and the
Company is not in breach of any of their terms and none of such facilities
or terms of borrowing will be terminated as a result of the acquisition of
the Shares.
12 INSOLVENCY
12.1 No administrator, administrative receiver, receiver, manager of assets,
liquidator or any other similar officer has ever been appointed in respect
of the whole or any part
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of the assets or undertaking of the Company and no order has been made,
petition presented or resolution passed for the purpose of the making of
any order in relation to administration, administrative receivership,
receivership, liquidation, management of assets or any other similar
situation of the Company.
12.2 The Company is neither insolvent nor unable to pay its debts as they fall
due (as such expression is defined in either sub-section (1)(a) to (d)
(inclusive) or sub-section (2) of Section 123 of the Insolvency Act
1986)..
12.3 No voluntary arrangement (as referred to in the Insolvency Act 1986) or
scheme of arrangement as regards its creditors has been proposed by the
Directors or is in operation in relation to the Company.
12.4 The Company has not entered into any transaction nor been given a
preference to which Sections 238, 239 or 423 of the Insolvency ▇▇▇ ▇▇▇▇
apply or which may otherwise be liable to be set aside or avoided for any
reason.
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IXL LONDON LIMITED
by: U. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
by: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Secretary