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EXHIBIT 2.18
DATED 18 MAY 2001
LASON INTERNATIONAL, INC.
KONINKLIJKE PTT POST B.V.
and
PROJECT HURRICANE LIMITED
AGREEMENT
for the acquisition of the entire
issued share capital of Lason U.K., Ltd.
CLEARY, GOTTLIEB, XXXXX & XXXXXXXX
City Place House,
00 Xxxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX
08777-003
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TABLE OF CONTENTS
Page
1. INTERPRETATION....................................................
2. SALE AND PURCHASE OF SHARES.......................................
3. CONSIDERATION.....................................................
4. COMPLETION........................................................
5. WARRANTIES........................................................
6. LIMITATION OF VENDOR'S LIABILITY..................................
7. EARN-OUT..........................................................
8. PURCHASER'S WARRANTIES............................................
9. INTRA-GROUP DEBTS AND GUARANTEES..................................
10. PURCHASER'S UNDERTAKINGS..........................................
11. VENDOR'S COVENANTS................................................
12. SHARE OPTION SCHEME...............................................
13. ANNOUNCEMENTS.....................................................
14. GUARANTEE.........................................................
15. FURTHER ASSURANCE.................................................
16. ASSIGNMENT........................................................
17. VARIATION.........................................................
18. WAIVER............................................................
19. INVALIDITY........................................................
20. CONTINUANCE AFTER COMPLETION......................................
21. ENTIRE AGREEMENT..................................................
22. TIME OF THE ESSENCE...............................................
23. COSTS.............................................................
24. PAYMENTS..........................................................
25. THIRD PARTY RIGHTS................................................
26. NOTICES...........................................................
27. PROCESS AGENT.....................................................
28. COUNTERPARTS......................................................
29. GOVERNING LAW AND JURISDICTION....................................
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THIS AGREEMENT is made on 18 May 2001
BETWEEN:-
(1) LASON INTERNATIONAL, INC., a company incorporated in Delaware, whose
principal place of business is at 0000 Xxxxxxxxxx Xxxxxxx, Xxxx,
Xxxxxxxx 00000, X.X.X. (the "VENDOR");
(2) KONINKLIJKE PTT POST B.V., a company incorporated in the Netherlands
whose registered office is at Prinses Beatrixlaan 23,2595 AK, The
Hague, the Netherlands ("THE GUARANTOR"); and
(3) PROJECT HURRICANE LIMITED a company incorporated in England and Wales
with registered number 4165730 whose registered office is at X.X. Xxx
00, Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx, Xxxxxxxxxx XX0 0XX (the
"PURCHASER").
WHEREAS:-
(A) Lason U.K., Ltd. (the "COMPANY") is a company incorporated in England
and Wales with registered number 3801631, whose registered office is at
00-00 Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX. At the date of this Agreement,
the Company has an authorised share capital of (pound sterling)
37,587,321 divided into 37,587,321 Ordinary Shares of which 37,587,321
Ordinary Shares have been allotted and issued and are fully paid or
credited as fully paid. Further particulars of the Company are set out
in Schedule 1.
(B) The Vendor is the beneficial owner and registered holder of all of the
Shares.
(C) The Vendor has agreed to sell and the Purchaser has agreed to purchase
the Shares upon and subject to the terms and conditions of this
Agreement.
1. INTERPRETATION
1.1 In this Agreement, the following words and expressions have the
meanings set opposite them:-
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"Accounts" the audited (or, in the case of MR Services Limited
unaudited) balance sheet as at the Balance Sheet Date
and the audited (or, in the case of MR Services
Limited unaudited) profit and loss account for the
accounting reference period ended on the Balance
Sheet Date of the Company and of each of Lason
Information Management Limited, MR Digital Capture
Services Limited, Lason Limited, MR Microrite Systems
Limited and MR Services Limited (including, in the
case of the Company, the audited consolidated balance
sheet as at that date and the audited consolidated
profit and loss account for that period) and the
notes, reports, statements and other documents which
are required by law to be, or are otherwise, annexed
to the same and copies of which are attached to the
Disclosure Letter;
"Act" Companies Xxx 0000;
"Affiliate" any holding company or subsidiary undertaking of any
company or any subsidiary undertaking of any such
holding company. For the avoidance of doubt, in
respect of the Purchaser, "AFFILIATE" shall include
the Company and its Subsidiaries as from Completion;
"Agreed Rate" LIBOR plus 2.25 per cent;
"Agreement" this Agreement including its recitals and Schedules
but excluding the Tax Deed;
"Assurance" has the meaning set forth in Clause 21.2;
"Balance Sheet December 31, 2000;
Date"
"Bank Release" the consent and release in the agreed terms from Bank
One, Michigan, as agent for the lenders under the
Third Amended and Restated Credit Agreement dated as
of August 16, 1999 (as amended) between Lason, Inc.,
the other borrowers party thereto, the lenders party
thereto and Bank One, Michigan;
"Business Day" any day (excluding a Saturday or Sunday) when
commercial banks are open for business in London;
"Company IT the material agreements between the Company or any of
Agreements" the Subsidiaries and third parties relating to the
use, development, maintenance, support, security
arrangements and management of the Company IT System;
"Company IT the system comprising any and all Hardware and/or
System" Software owned or used by the Company or any of the
Subsidiaries;
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"Completion" completion of the sale and purchase of the Shares
pursuant to Clause 4 of this Agreement;
"Consideration" has the meaning set forth in Clause 3.1;
"Contracts Act" has the meaning set forth in Clause 25;
"Data Protection means all statutes, enacting instruments, common law,
Legislation" regulations, directives, and the like (whether in the
United Kingdom, the European Union or elsewhere)
concerning the protection and/or processing of
personal data;
"Directors" the directors of the Company and/or (as the case may
be) the directors of each of the Subsidiaries, whose
names and addresses are set out in Schedule 1 and
Schedule 2 respectively;
"Disclosure the letter in the agreed terms and of even date with
Letter" this Agreement from the Vendor to the Purchaser,
together with the bundle of documents annexed
thereto;
"Earn-Out the accounts referred to in Clause 7.2, prepared in
Accounts" accordance with the provisions of Schedule 7;
"EBIT" has the meaning set forth in Clause 7.3;
"EC Treaty" the Treaty establishing the European Community, as
amended by the Treaty of Amsterdam;
"EMU Compliant" (a) any functions (including the input,
processing and presentation of financial
data) currently performed by the Company IT
System are capable of being performed both
in any existing currency and in any European
single currency which may be introduced in
connection with the European Economic and
Monetary Union;
(b) the Company IT System enables compliance
with applicable legal requirements enacted
at the date of this Agreement (irrespective
of the time from which such requirements
come into force) which are applicable to any
such new currency (including without
limitation, Council Regulation (EC) No.
1103/97); and
(c) the Company IT System is capable of
displaying the symbols and codes adopted in
relation to any such new currency.
"Encumbrance" any mortgage, charge (whether legal or equitable and
whether fixed or floating), security, lien, pledge,
option, right to acquire, right of pre-emption, right
of set-off, equity, assignment, hypothecation, title
retention, claim, restriction or power of sale;
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"Financial the twelve months to 31 December 2001;
Period"
"Group" together the Company and the Subsidiaries;
"Hardware" any and all computer, telecommunications and network
equipment;
"ICTA" the Income and Corporation Taxes Xxx 0000;
"Initial has the meaning set forth in Clause 3.1;
Consideration"
"Intellectual (whether or not any of the following is registered
Property" and including applications for registration and the
right to apply for registration of any such thing,
and further including all rights or forms of
protection of a similar nature or having equivalent
or similar effect to any of the following which may
subsist anywhere in the world) rights in designs,
copyrights, database rights and topography rights,
trade marks and service marks and trade or business
names and patents;
"Know-how" trade secrets and confidential business information
(including details of supply arrangements, customer
lists and pricing policy), sales targets, sales
statistics, market share statistics, marketing
surveys and reports, marketing research, unpatented
technical and other information (including
inventions, discoveries, processes and procedures,
ideas, concepts, formulae, specifications, procedures
for experiments and tests and results of
experimentation and testing) and information
comprised in Software (as such term is defined in
this Clause 1.1), together with all common law or
statutory rights protecting the same including by any
action for breach of confidence and any similar or
analogous rights to any of the foregoing whether
arising or granted under the law of England or any
other jurisdiction;
"Lason Debt" the intra-group debt of (pound sterling) 7,046,250
owed by Lason, Inc. to Lason Information Management,
Limited;
"Xxxxx Xxxxx" has the meaning set forth in Clause 10.1;
"LIBOR" the three month interbank rate at which sterling
deposits are offered in the London market as derived
from the Financial Times;
"Ordinary Shares" ordinary shares of (pound sterling) 1 each in the
capital of the Company;
"Planning Acts" means the Town and Country Planning Xxx 0000, the
Planning Listed Buildings and Xxxxxxxxxxxx Xxxxx Xxx
0000, the Planning Hazardous Substances Xxx 0000, the
Planning Consequential Provisions Act 1990 and the
Planning and Compensation Xxx 0000;
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"Properties" the leasehold properties, brief particulars of which
are set out in Schedule 5;
"Purchaser's KPMG;
Auditors"
"Purchaser's Xxxxx & Overy of Xxx Xxx Xxxxxx, Xxxxxx, XX0X 0XX;
Solicitors"
"Purchaser's the warranties set out in Schedule 4;
Warranties"
"Shares" the 37,587,321 Ordinary Shares to be acquired by the
Purchaser from the Vendor upon and subject to the
terms and conditions of this Agreement, which
Ordinary Shares constitute the entire issued share
capital of the Company;
"so far as the so far as within the actual knowledge at the date
Vendor is aware" hereof of the Vendor, after reasonable enquiry of
the persons whose names are set out below in this
definition:-
Xxxx Xxxxxx;
Xxxxxxx X'Xxxxxx;
Xxxxxx Xxxxxx;
Xxxxxxx Xxxxxx; and
Xxxxx Xxxxxxx,
and all other phrases in this Agreement relating to
the knowledge, information and belief or awareness of
the Vendor shall be construed as a reference to "so
far as the Vendor is aware" as so defined;
"Software" any and all computer programs in both source and
object code form, including all modules, routines and
sub-routines thereof and all source and other
preparatory materials relating thereto, including
user requirements, functional specifications and
programming specifications, ideas, principles,
programming languages, algorithms, flow charts,
logic, logic diagrams, orthographic representations,
file structures, coding sheets, coding and including
any manuals or other documentation relating thereto
and computer generated works;
"Subsidiaries" the subsidiaries of the Company, brief particulars of
which are set out in Schedule 2;
"Tax Deed" the tax deed of even date herewith;
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"Taxation the Inland Revenue, Customs & Excise, Department of
Authority" Social Security and any other governmental or other
authority whatsoever competent to impose any Taxation
whether in the United Kingdom or elsewhere;
"Taxation any directive, statute, enactment, law or regulation,
Statute" wheresoever enacted or issued, coming into force or
entered into providing for or imposing any Taxation,
including orders, regulations, instruments, bye-laws
or other subordinate legislation made under the
relevant statute or statutory provision and any
directive, statute, enactment, law, order, regulation
or provision which amends, extends, consolidates or
replaces the same or which has been amended,
extended, consolidated or replaced by the same;
"Taxation" (a) all forms of taxation, including any charge,
or "Tax" tax, duty, levy, impost, withholding or
liability wherever chargeable imposed for
support of national, state, federal,
municipal or local government or any other
person and whether of the United Kingdom or
any other jurisdiction; and
(b) any penalty, fine, surcharge, interest,
charges or costs payable in connection with
any taxation within paragraph (a) above;
"VAT" value added tax;
"Vendor's Deloitte & Touche;
Auditors"
"Vendor's Group" the Vendor, its subsidiaries (but excluding the
Group), any holding company of the Vendor and all
subsidiaries of any such holding company from time to
time;
"Vendor's Cleary, Gottlieb, Xxxxx & Xxxxxxxx of 00 Xxxxxxxxxx
Xxxxxxxxxx" Xxxxxx, Xxxxxx, XX0X 0XX; and
"Warranties" the warranties set out in Schedule 3.
1.2 References in this Agreement to recitals, Schedules and Clauses are to
recitals and Schedules to and Clauses of this Agreement, and references
in this Agreement to numbered paragraphs are to numbered paragraphs of
the Clause in which such reference is made or otherwise of the
Schedules to this Agreement, unless specified otherwise.
1.3 The table of contents and headings in this Agreement are inserted for
convenience only and shall not affect its construction.
1.4 References in this Agreement to any statute, statutory provision or EC
Directive include a reference to such statute, statutory provision or
EC Directive as from time to time amended, modified, re-enacted,
extended, consolidated or replaced
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(whether before or after the date of this Agreement) and to any
subordinate legislation made from time to time under such statute,
statutory provision or EC Directive, provided that the liability of the
parties hereunder shall not be increased by this Clause 1.4.
1.5 References to this Agreement or to any other document include a
reference to this Agreement or such other document as varied, amended,
modified, novated or supplemented from time to time.
1.6 References to persons include individuals, bodies corporate,
associations, partnerships, trusts or agencies, whether or not having a
separate legal personality.
1.7 References to the word "include" or "including" are to be construed
without limitation.
1.8 Reference to times of the day are to London time.
1.9 References to "writing" or "written" include faxes and any permanent
form of visible reproduction of words but exclude e-mail or any other
method of sending words by electronic transmission to a visual display
unit.
1.10 References to any English legal term for any action, remedy,
proceeding, document, court, official, status, concept, state of
affairs or thing include, in respect of any jurisdiction other than
England, a reference to the nearest equivalent in such jurisdiction to
the English term.
1.11 References to a document in the agreed terms mean in the form agreed
between the Vendor and the Purchaser signed by or on behalf of each of
them for the purposes of identification.
1.12 The words "company", "subsidiary", "subsidiary undertaking" and
"holding company" have the same meanings in this Agreement as defined
in the Act.
1.13 In this Agreement, any undertaking by a party not to do or to omit to
do any act or thing includes an undertaking not to allow, cause or
assist in the doing of or omission of such act or thing.
1.14 In Schedule 3, references to the Company shall be deemed to include a
corresponding reference to the Subsidiaries and each of them severally
and references to the Accounts are to those of the Company or the
relevant Subsidiary, as the case may be.
2. SALE AND PURCHASE OF SHARES
SALE AND PURCHASE
2.1 Upon and subject to the terms and conditions of this Agreement, the
Vendor hereby agrees to sell, and the Purchaser agrees to purchase the
Shares free from
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all Encumbrances and together with all rights and advantages which are
at the date of this Agreement or at any time hereafter attached to the
Shares (including the right to receive all dividends and distributions
declared, made or paid).
ALL OF THE SHARES
2.2 Neither of the parties hereto shall be obliged to complete the purchase
of any of the Shares hereunder unless the sale and purchase of all of
the Shares hereunder is completed simultaneously.
WAIVER OF PRE-EMPTION RIGHTS
2.3 The Vendor hereby waives any rights of pre-emption which it may have
under the articles of association of the Company or otherwise.
3. CONSIDERATION
3.1 The consideration for the sale of the Shares (the "CONSIDERATION")
shall be:
(a) (pound sterling) 34,145,387; plus
(b) any amount due pursuant to Clause 7 (Earn-Out); plus
(c) any amount due in respect of the Lason Debt pursuant to Clause
3.3; plus
(d) any amount due pursuant to Clause 3.4.
3.2 The Consideration payable upon Completion ("THE INITIAL CONSIDERATION")
shall be (pound sterling) 34,145,387 to be paid in cash by the
Purchaser to the Vendor in accordance with clause 4.7;
3.3 If at any time following Completion demand is made for payment (whether
of interest or principal) in respect of the Lason Debt by the holder
thereof and any such payment is made (on one or more occasions) then
the Purchaser shall forthwith pay to the Vendor as additional
consideration for the Shares an amount equal to any such payment or
payments (including any payment in respect of the Lason Debt which is
made to a Taxation Authority as a result of a withholding or deduction
required by law).
3.4 If on any date following Completion (a "Settlement Date") either
(a) any of the claims to Taxation listed below (the "Listed
Claims") are settled with the Inland Revenue and the amount
payable in respect thereof is less than the amount set
opposite such claim (the "Provisional Amount"); or
(b) any of the Reliefs (as defined in the Tax Deed) listed below
(the "Listed Reliefs") are accepted in whole or in part by the
Inland Revenue
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then further consideration of up to (pound sterling) 700,000 (the "Tax
Retention") shall be payable by the Purchaser to the Vendor in respect
of the Shares as follows. On each Settlement Date there shall be
calculated the amount of the Tax Retention required in respect of the
aggregate of Listed Claims remaining unsettled and the Listed Reliefs
remaining unaccepted ("Residual Amounts") (which shall not exceed the
amounts set out below) by reference to the Relevant Percentage thereof.
For such purpose "unsettled" means that no final agreement has been
reached in writing with the Inland Revenue of the corporation tax
computation to which the Listed Claim relates; and "unaccepted" means
that no final agreement has been reached with the Inland Revenue of the
corporation tax computation to which the Listed Relief relates as to
the amount (if any) of the Listed Relief which will give rise to a
reduction in the amount of Taxation payable by the company making the
claim or reducing the amount of Taxation payable by another UK group
company to be acquired by the Purchaser by way of the surrender of the
Relief. PROVIDED, however, that for these purposes final agreement in
writing shall be deemed to have been reached where the period during
which the Inland Revenue may question the relevant computation has
expired without any such question being raised. In addition, in
determining whether final agreement has been reached, the rights of the
Inland Revenue under Section 29 of the Taxes Management Xxx 0000 and
under paragraph 41 of Schedule 18 of the Finance Xxx 0000 shall be
ignored. For such purpose, the "Relevant Percentage" shall be
calculated as follows:
Residual Amounts Relevant Percentage
---------------- -------------------
(pound sterling) 0 -(pound sterling) 100,000 100%
(pound sterling) 100,000 -(pound sterling) 810,000 X
(pound sterling) 810,000 86%
where x = 86 + ( 810,000 - Residual Claims x 14 )
-------------------------
( 710,000 )
Within five Business Days of each Settlement Date, the Purchaser shall
pay to the Vendor a sum equal to the difference between the original
Tax Retention of (pound sterling) 700,000 and the Tax Retention as
adjusted pursuant to this clause less the aggregate of:
(i) the sum of the amounts paid (including interest and
penalties thereon) to the appropriate Taxation
Authority in respect of the Listed Claim but not
exceeding the Provisional Amount in respect thereof;
(ii) the amount of any Listed Relief which has been
disallowed (including interest and penalties arising
on additional Taxation becoming payable by any of the
companies to be acquired by the
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Purchaser as a result of any disallowance of the
Listed Relief) but not exceeding the Provisional
Amount in respect thereof; and
(iii) the sum of all amounts (excluding amounts in respect
of interest) previously paid to the Vendor pursuant
to this clause;
plus interest at the Agreed Rate from the date of Completion. Any
amount which is not settled in accordance with this clause shall bear
interest at the Agreed Rate plus three per cent from the due date for
payment.
Listed Claims Provisional Amounts
------------- -------------------
Transfer Pricing (pound sterling) 300,000
Listed Reliefs
--------------
Relief for 1999 Transaction costs (pound sterling) 246,000
Write-down of ESOP loan (pound sterling) 264,000
4. COMPLETION
COMPLETION DATE
4.1 Subject to the satisfaction of the obligations set out in this Clause
4, Completion shall take place at the offices of the Vendor's
Solicitors immediately after execution of this Agreement.
DELIVERY OF DOCUMENTS ETC. BY THE VENDOR
4.2 On or before Completion, the Vendor shall deliver or make available to
the Purchaser:-
(a) a certified copy of a consent in lieu of a special meeting of the
board of the Vendor at which this Agreement and the transactions
and documents referred to herein are approved and this Agreement
and such documents are executed;
(b) a duly executed transfer of the Shares in favour of the Purchaser
or its nominees (as the Purchaser may direct) together with the
relevant share certificates;
(c) written resignations in the agreed terms of each of the Directors
and of the company secretary of the Company from their respective
offices with the Company, such resignations to take effect from
the end of the board meeting referred to in Clause 4.3;
(d) written resignations in the agreed terms of Deloitte & Touche, the
auditors of the Company and of each of the Subsidiaries, such
resignations to take
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effect from the end of the board meetings referred to in Clauses
4.3 and 4.4 (as the case may be);
(e) an irrevocable power of attorney in the agreed terms duly executed
by the Vendor in favour of the Purchaser and/or its nominees (as
the Purchaser may direct) to enable the same to exercise all
voting and other rights attaching to the Shares (including the
right to appoint proxies) pending registration as the holder(s)
thereof;
(f) statutory books and minute books of the Company and each of the
Subsidiaries duly written up to date;
(g) certificates of title in the agreed terms relating to the
Properties and prepared by Xxxxxxxx Xxxxx Xxxxxxxxxx, Xxxxxxxx &
Xxxx and PCL Services;
(h) the Bank Release;
(i) (subject to compliance with Clause 4.5) the Tax Deed, duly
executed by the Vendor; and
(j) evidence that the sum of (pound sterling) 445,387-11 (being
$639,130-50 converted at a rate of (pound sterling)/$1.435) was
paid to MR Technology Limited in consideration of the sale of
Memex Information Holdings Limited.
BOARD MEETING OF THE COMPANY
4.3 On or before Completion, the Vendor shall procure that there shall be
held a meeting of the board of the Company at which:-
(a) the resignations of each of the Directors and of the company
secretary referred to in Clause 4.2(c) shall be accepted and such
persons as the Purchaser shall nominate shall be appointed as the
directors of the Company and as the company secretary of the
Company, with effect from the end of such board meeting;
(b) the resignation of the auditors referred to in Clause 4.2(d) shall
be accepted and PricewaterhouseCoopers shall be appointed as the
auditors of the Company with effect from the end of such board
meeting;
(c) the transfer of the Shares referred to in Clause 4.2(a) shall be
approved for registration, subject only to the same being duly
stamped (which shall be at the expense of the Purchaser); and
(d) all existing instructions and authorisations to bankers in respect
of the operation of the Company's bank accounts shall be revoked
to the extent that they confer authority on persons other than
Xxxxxxx X'Xxxxxx and
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Xxxx Xxxxxx and replaced with such instructions and authorisations
as the Purchaser may require;
and a certified copy of the minutes of such board meeting shall be
delivered to the Purchaser.
BOARD MEETINGS OF THE SUBSIDIARIES
4.4 On or before Completion, the Vendor shall procure that there shall be
held a meeting of the board of each of the Subsidiaries (each of which
in this Clause 4.4 shall be referred to as the "SUBSIDIARY") at which:-
(a) such persons as the Purchaser may nominate shall be appointed as
additional directors of the Subsidiary, with effect from the end
of such board meeting;
(b) the resignation of the auditors referred to in Clause 4.2(d) shall
be accepted and PricewaterhouseCoopers shall be appointed as the
auditors of the Subsidiary with effect from the end of such board
meeting; and
(c) all existing instructions and authorisations to bankers in respect
of the operation of the Subsidiary's bank accounts shall be
revoked to the extent that they confer authority on persons other
than Xxxxxxx X'Xxxxxx and Xxxx Xxxxxx and replaced with such
instructions and authorisations as the Purchaser may require;
and a certified copy of the minutes of such board meeting shall be
delivered to the Purchaser.
CONSENT OF THE VENDOR
4.5 On or before Completion a consent in lieu of a special meeting of the
board of the Vendor shall be obtained providing for:-
(a) this Agreement and the transactions and documents referred to
herein to be approved and this Agreement and such documents to be
executed; and
(b) the Tax Deed to be approved and executed as a deed of the Vendor,
and a certified copy of such consent shall be delivered to the
Purchaser.
BOARD MEETING OF THE PURCHASER
4.6 On or before Completion there shall be held a meeting of the board of
the Purchaser at which:-
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(a) this Agreement and the transactions and documents referred to
herein shall be approved and this Agreement and such documents
shall be executed by the Purchaser;
(b) the Tax Deed shall be approved and executed as a deed of the
Purchaser,
and a certified copy of the minutes of such board meeting shall be
delivered to the Vendor.
COMPLETION
4.7 Subject to compliance with Clauses 4.2 to 4.5, the Purchaser shall:-
(a) by electronic transfer for same day value, pay the Initial
Consideration as follows:-
(i) the sum of (pound sterling) 2,902,387 shall be paid by the
Purchaser into the account of the Vendor's Solicitors; and
(ii) the sum of (pound sterling) 31,243,000 shall be paid by the
Purchaser into the account of Xxxxxx Xxxx at The Royal Bank
of Scotland, London City Office, a/c no. 16122869, sort
code 15-10-00.
(b) deliver to the Vendor the Tax Deed, duly executed by the
Purchaser; and
(c) deliver to the Vendor a certified copy of the minutes of meetings
of the boards of the Purchaser and Guarantor, at which:-
(i) this Agreement and the transactions and documents referred
to herein are approved and this Agreement and such
documents are executed; and
(ii) the Tax Deed is approved and executed as a deed of the
Purchaser.
(d) deliver to the Vendor an opinion of Xxxxx & Xxxxx, Amsterdam in
the agreed terms.
4.8 Receipt of funds in accordance with Clause 4.7(a) shall constitute a
good discharge of the Purchaser in respect of the payment of the
Initial Consideration due pursuant to Clause 3.1 but not, for the
avoidance of doubt, in respect of the Purchaser's obligations under
Clauses 3.3 and 3.4 or 7.
5. WARRANTIES
WARRANTIES
5.1 In relation to the Company and each of the Subsidiaries, the Vendor
warrants to the Purchaser in the terms of the Warranties, subject as
provided in this Agreement.
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RELIANCE UPON WARRANTIES
5.2 The Purchaser has entered into this Agreement upon the basis of, and in
reliance upon, the Warranties.
SEPARATE WARRANTIES
5.3 Each of the Warranties set out in Schedule 3 shall be separate and
independent and shall not be limited by reference to any other
Warranty.
6. LIMITATION OF VENDOR'S LIABILITY
TIME LIMITATIONS
6.1 The Vendor shall have no liability in respect of any claim under the
Warranties unless:-
(a) the Purchaser shall have served on the Vendor a written notice of
such claim on or before:-
(i) the expiry of the 18 month period from the date of
Completion of this Agreement; or
(ii) in the case only of any claim under the Tax Warranties, the
seventh anniversary of the date of Completion of this
Agreement,
which notice gives all material details of such claim as are then
known to the Purchaser together with the Purchaser's bona fide
estimate of the amount of such claim; and
(b) legal proceedings in respect of such claim shall have been
commenced against the Vendor within six months of the expiry of
the relevant period referred to in clause 6.1(a), or such claim
shall have been satisfied, settled or withdrawn prior to the
expiry of such six month period (and, for the purposes of this
paragraph (b), legal proceedings shall be deemed not to have
commenced unless they shall have been properly issued and validly
served on the Vendor).
QUANTUM
The Vendor shall have no liability in respect of any claim under the Warranties
and/or the Tax Deed:-
unless and until the amount of such claim, when aggregated with the amount of
any other claim(s) made by the Purchaser under any of the Warranties
and/or the Tax Deed which claims are based on essentially the same or
similar facts, exceeds (pound sterling) 10,000; and
17
(c) unless and until the amount of such claim, when aggregated with
the amount of any other claim(s) made by the Purchaser under any
of the Warranties and/or the Tax Deed (or which would have been
made but for the provisions of this Clause 6.1(c), but excluding
always any claims to which Clause 0 applies) exceeds (pound
sterling) 500,000, in which event the Vendor's liability in
respect of such claim(s) shall not be limited to the excess and
the whole amount of such claim(s) shall be recoverable in full.
6.2 The aggregate amount of the Vendor's liability under the Warranties and
the Tax Deed shall not exceed (pound sterling) 25,000,000.
DISCLOSURE
6.3 The Purchaser shall not be entitled to claim that any fact, matter or
circumstance causes any of the Warranties to be breached if it is
fairly disclosed in the Disclosure Letter or this Agreement.
6.4 Any matter contained or referred to in the Disclosure Letter which is
expressed therein to relate only to particular Warranties or categories
of Warranties shall not limit the scope of such disclosure which shall
be considered to be disclosed for all purposes of this Agreement and
not merely for the Warranties specifically referred to.
PURCHASER'S KNOWLEDGE
6.5 The Purchaser represents and warrants that it has no knowledge of any
fact, matter or circumstance which would constitute a breach of any of
the Warranties at the date hereof and which has not been fairly
disclosed in the Disclosure Letter or this Agreement.
ACTS OF PURCHASER
6.6 The Vendor shall have no liability under the Warranties in relation to
any claim to the extent that such claim would not have arisen but for:-
(a) any act, omission, transaction or arrangement made by or on behalf
of, or with the written consent of, the Purchaser or any of its
Affiliates, on or after Completion and whether pursuant to this
Agreement or otherwise;
(b) any admission of liability by the Purchaser or any of its
Affiliates made in breach of the provisions of this Agreement
after Completion; or
(c) any reorganisation or change in ownership of the Purchaser or any
of its Affiliates, or any change by any such company in the
accounting basis on which its assets are valued or the accounting
basis, method, policy or practice on which its accounts are
prepared, after Completion (unless such change is required to
comply with relevant laws and regulations applicable to the
Company and the Subsidiaries which existed at Completion).
18
6.7 The Vendor shall have no liability under those Warranties set out in
paragraph ERROR! REFERENCE SOURCE NOT FOUND. of Schedule 3
(Environmental Warranties) in relation to any claim to the extent that
such claim would not have arisen but for the Purchaser or any of its
Affiliates making a notification or other disclosure to any authority
or other person, save as required under Environmental Laws.
PROVISIONS
6.8 The Vendor shall have no liability under the Warranties in relation to
any claim to the extent that allowance, provision or reserve in respect
thereof shall have been made in, or otherwise taken account of or
reflected in (whether in the calculation of creditors or debtors or
otherwise) the Accounts or to the extent that the Purchaser is
compensated by virtue of allowance, provision or reserve in respect
thereof being made in, or otherwise taken account of or reflected in
the Earn-Out Accounts.
RETROSPECTIVE LEGISLATION
6.9 The Vendor shall have no liability under the Warranties in relation to
any claim to the extent that such claim arises from or would not have
arisen but for:-
(a) a change in the law enacted, a change or withdrawal of any
extra-statutory concession or other agreement or arrangement
granted by or made with any governmental or regulatory authority
or a change in any generally accepted interpretation or
application of any legislation;
(b) any increase in the rates of taxation made, or any retrospective
imposition of taxation by a change in the law enacted, after the
date hereof; or
(c) (unless such change is required to comply with relevant laws and
regulations applicable to the Company and the Subsidiaries which
existed at Completion) any change in generally accepted accounting
policies or practices introduced,
after the date hereof.
LIABILITY TO PAY A CLAIM
6.10 The Vendor shall not be liable to make any payment under the Warranties
until the Company or other member of the Group has become finally
liable to make payment in respect of the corresponding liability.
FORECASTS
6.11 Without prejudice to Clause 21, the Purchaser acknowledges and agrees
that the Vendor makes no warranty as to the accuracy of any forecasts,
estimates, projections, statements of intent provided to the Purchaser
(howsoever provided) on or prior to the date of this Agreement or in
the Disclosure Letter or in the
19
documents provided to the Purchaser or its advisers, in the course of
the Purchaser's due diligence exercise.
NO MULTIPLE RECOVERY
6.12 In the event that the Purchaser is entitled to claim under the
Warranties or under the Tax Deed in respect of the same subject matter,
the Purchaser may claim under either but payments made under the
Warranties shall pro tanto satisfy and discharge any claim which is
capable of being brought in respect of the same subject matter under
the Tax Deed and payments made under the Tax Deed shall pro tanto
satisfy and discharge any claim which is capable of being brought in
respect of the same subject matter under the Warranties.
6.13 The Purchaser shall not be entitled to recover damages from the Vendor
or otherwise obtain reimbursement or restitution from the Vendor more
than once in respect of the same loss unless the amounts recovered are
not sufficient to compensate for the entire damage or loss.
6.14 If, in respect of a matter giving rise to a claim under the Warranties,
the Purchaser or any of its Affiliates is or may be entitled to claim
under any policy of insurance, then the Purchaser shall not make any
claim in respect of such matter under the Warranties (but shall notify
the Vendor of the claim in accordance with Clause 6.18) unless and
until the Purchaser or its Affiliate (as the case may be) shall have
made a claim against the insurers and used all reasonable endeavours to
pursue such insurance claim. Any sums recovered under such insurance
policies less the net present value of any consequential increases in
insurance premia shall pro tanto reduce the amount that may be claimed
in respect of the same matter under the Warranties.
6.15 Without prejudice to Clause 6.14, if, in respect of a matter giving
rise to a claim under the Warranties, the Purchaser or any of its
Affiliates is or may be entitled to claim from another person, then the
Purchaser or its Affiliate (as the case may be) shall make a claim
against such other person and use all reasonable endeavours to pursue
such claim (provided that the Purchaser or its Affiliate (as the case
may be) shall not be required to commence legal proceedings where it
has validly assigned all of its rights against such person in relation
to such claim to the Vendor and the Vendor is entitled to the same
benefits in respect of such rights and their enforcement as the
Purchaser or its Affiliate (as the case may be)). Any sums recovered
from such other person by the Purchaser or any of its Affiliates shall
pro tanto reduce the amount that may be claimed in respect of the same
matter under the Warranties.
20
6.16 Without prejudice to Clauses 6.14 and 6.15, if the Vendor pays to or
for the benefit of the Purchaser or any of its Affiliates an amount in
satisfaction of a claim by the Purchaser under the Warranties or under
any other provision of this Agreement or any other document referred to
herein and the Purchaser or its Affiliate (as the case may be)
subsequently recovers or receives from another person any sum in
respect of the matter giving rise to the claim, the Purchaser shall
thereupon pay to the Vendor an amount equal to the lesser of:-
(a) the amount paid by the Vendor in satisfaction of the claim under
the Warranties; and
(b) the sum received from such other person, after deduction of any
cost, liability (including liability to Tax) or expense falling to
the Purchaser or its Affiliate (as the case may be) in respect of
such sum and except to any extent that the liability of the Vendor
in respect of such claim was reduced to take account of such sum;
unless (and to the extent that) the aggregate of (a) and (b) would not
entirely cover the loss or damage incurred by the Purchaser or its
Affiliates.
DETERMINATION OF LOSS
6.17 For the purposes of determining the amount for which the Vendor is or
may be liable for any claim under the Warranties, there shall be taken
into account and credit shall be given for the amount by which at the
date of such claim (and in respect of the matter or circumstance giving
rise to such claim):-
(a) any liability of the Company or any member of the Group included
in the Accounts has been discharged or satisfied below the amount
attributed in respect thereof in the Accounts;
(b) any contingency provided for in the Accounts has been ascertained
and proved to have been over-provided for in the Accounts;
(c) any Tax (other than VAT) paid by the Company or any member of the
Group in respect of any period ended on or before the Balance
Sheet Date has been refunded as being in excess of its actual
liability to tax in that period; and
(d) any saving of Tax or other benefit which might be obtained by the
Company or any member of the Group by reason of the matters giving
rise to the claim.
CONDUCT OF CLAIMS
6.18 The Purchaser shall as soon as practicable inform the Vendor in writing
of any fact, matter, event or circumstance (in this Clause 6.18, a
"POTENTIAL CLAIM")
21
which comes to its or any of its Affiliates' attention and which will
or might give rise to a claim under the Warranties and shall:-
(a) consult with the Vendor as to the manner in which any such
Potential Claim might be avoided, resolved or compromised, giving
reasonable weight and consideration to proposals for the same made
by the Vendor;
(b) inform the Vendor of the progress of any actions and proceedings
relating to any such Potential Claim;
(c) use all reasonable endeavours to mitigate any loss suffered by it
or any of its Affiliates in respect of any such Potential Claim.
6.19 The Purchaser shall be entitled at any stage and at its sole discretion
to settle any Potential Claim (as such term is defined in Clause 6.18);
REDUCTION OF CONSIDERATION
6.20 Any payment made by the Vendor in respect of any claim under the
Warranties shall be deemed to be a reduction of the consideration
payable for the Shares as set out in Clause 3.
FRAUD ETC.
6.21 The provisions of Clauses 6.1, 0 and 6.2 shall not apply to any claim
under any of the Warranties if such claim is the consequence of fraud
or willful concealment on the part of the Vendor.
7. EARN-OUT
7.1 As further consideration for the sale of the Shares, the Purchaser
shall subject to the terms of this Agreement pay to the Vendor a sum
(the "DEFERRED CONSIDERATION") calculated as follows:
(a) if the EBIT for the Financial Period is (pound sterling) 4,600,000
or less, no Deferred Consideration shall be due;
(b) if the EBIT for the Financial Period is (pound sterling) 4,900,000
or more, the Deferred Consideration shall be (pound
sterling) 2,150,000;
(c) if the EBIT for the Financial Period is greater than (pound
sterling) 4,600,000 and less than (pound sterling) 4,900,000, then
the Deferred Consideration shall be calculated on a basis of
(pound sterling) 7.17 per (pound sterling) 1 that the EBIT for the
Financial Period exceeds (pound sterling) 4,600,000, but so that
the Deferred Consideration will not in any event exceed (pound
sterling) 2,150,000.
22
The Deferred Consideration shall be payable within five Business Days
of its agreement or determination and shall bear interest at the Agreed
Rate from Completion.
7.2 The Vendor and the Purchaser shall comply with their respective
obligations in Schedule 7 with regard to the preparation of the
Earn-Out Accounts. The Purchaser shall deliver to the Vendor copies of
quarterly management accounts in respect of the three month period to
30 June, 30 September and 31 December within 30 days of the relevant
period end.
7.3 For the purposes of this Clause 7, "EBIT" in respect of the Financial
Period means the earnings of the Group before interest and taxation, on
a consolidated basis, as derived from the Earn-out Accounts and as
agreed or determined pursuant to this Clause 7 and Schedule 7 and
specifically:-
(a) before any deduction of corporation tax or other taxes on income
or gains;
(b) before interest payable and similar charges (but after finance
lease charges) and interest receivable and similar income
(including currency exchange rates adjustments);
(c) before amortization of goodwill;
(d) excluding non recurring or one-off costs and income (and in
particular restructuring costs) in each case not arising out of
the ordinary course of trading (including, in particular, any
write-down of the Lason Debt); and
(e) after adjustment in accordance with Clause 7.4.
7.4 The adjustments referred to in Clause 7.4(e) above are the adding back
(to the extent not already added back) to the figure which would
otherwise be the EBIT, each of the following:-
(a) all management charges, expenses and outgoings (howsoever
described or determined) made or imposed on any member of the
Group by the Purchaser or any Affiliate of the Purchaser to the
extent that the same are not charged on an arm's length basis for
services provided to the Group;
(b) all legal, accounting, financial and actuarial fees and expenses
incurred by members of the Group relating to the calculation of
the payments pursuant to this Clause 7;
(c) an amount equal to the aggregate of all discounts or other
deductions or allowances or other favourable terms allowed by any
members of the Group on transactions with the Purchaser or any
Affiliate of the Purchaser insofar as not allowed to other
customers (in respect of transactions under which products or
services are supplied by any members of the Group to the Purchaser
or any Affiliate of the Purchaser);
23
(d) an amount equal to the aggregate of all amounts by which the sums
charged to any member of the Group by the Purchaser or any
Affiliate of the Purchaser in respect of the supply of products or
services by the Purchaser or any Affiliate of the Purchaser are in
excess of sums charged in respect of such supplies to any other
person;
(e) the amount by which EBIT is less than it would have been as a
result of any breach of this agreement by the Purchaser;
(f) changes to the accounting policies or practices of the Group
following Completion;
(g) all cash and expenses related to this Agreement and the
transactions contemplated hereby; and
(h) any bonuses of the Group's employees not provided for in the
budgets or forecasts for the Financial Period attached hereto or
in the respective employment or service agreements.
PROVIDED however that there shall be excluded from EBIT those revenues
(up to (pound sterling) 1 million) and direct costs attributable
thereto which are derived from goods or services provided by the
Company or the Subsidiaries to the Purchaser or its Affiliates.
8. PURCHASER'S WARRANTIES
8.1 The Vendor has entered into this Agreement upon the basis of, and in
reliance upon, the Purchaser's Warranties and the Purchaser undertakes
to indemnify the Vendor from and against all losses, damages,
liabilities, costs and expenses made, suffered or incurred by the
Vendor directly or indirectly as a result of or in relation to any
breach of the Purchaser's Warranties.
8.2 Each of the Purchaser's Warranties shall be separate and independent
and shall not be limited by reference to any of them or any other
provision in this Agreement.
9. INTRA-GROUP DEBTS AND GUARANTEES
9.1 The Vendor covenants with the Purchaser that at the date of Completion
there will be (a)no amounts owed between, on the one hand, any member
of the Vendor's Group and, on the other, any member of the Group,
except for the Lason Debt and (b) no guarantees or contractual
obligations outstanding between, on the one hand, any member of the
Vendor's Group and, on the other, any member of the Group, except as
set forth in Schedule 9. The Vendor undertakes to pay to the Company
any amount claimed by any of those companies shown in the attached list
headed "Dormant Companies" claimed by any of them against the Company
or any of the Subsidiaries.
24
9.2 The Purchaser, for itself and its successors and assigns, covenants
that, at any time and from time to time on or after Completion, it will
execute and deliver all such instruments of assumption and
acknowledgements or take such other action as the Vendor may reasonably
request in order to effect the release and discharge in full of any
guarantee given by any member of the Vendor's Group to any person
(including any member of the Group) in respect of any obligation or
liability of any member of the Group (brief particulars of which are
set out in Schedule 9) and the Purchaser's assumption of, and the
substitution of the Purchaser as the primary obligor in respect of,
each such guarantee in each case on a non-recourse basis to the
Vendor's Group. Pending such release and discharge, the Purchaser
hereby agrees with the Vendor (on behalf of itself and each member of
the Vendor's Group) that it will assume and pay and discharge when due,
and indemnify each member of the Vendor's Group against, all such
guarantees.
10. PURCHASER'S UNDERTAKINGS
10.1 The Purchaser acknowledges and agrees on behalf of itself and its
Affiliates that, for the avoidance of doubt, nothing in this Agreement
shall operate as an agreement to transfer (nor shall transfer) any
right title or interest in any trade xxxx, house xxxx or company name
to the extent it contains or consists of the word "Lason" or in any
other xxxx in which that element appears or the word "Lason" in the
translational or transliteral form appears (together, the "XXXXX
XXXXX"). The Purchaser agrees that within 90 days of the date hereof it
shall procure that the name of each Group Company which includes the
word "Lason" shall be changed so as to omit that word and further
agrees that it will procure that within six months of the date of
Completion the Xxxxx Xxxxx will be removed from all signage, stocks,
sales literature or other promotional material and all other assets
whatsoever of the Purchaser and each of its Affiliates and the
Purchaser agrees that neither it nor any of its Affiliates will use the
Xxxxx Xxxxx or any signage, stocks, sales literature or other
promotional literature bearing or containing a Xxxxx Xxxx nor shall the
Purchaser or any of its Affiliates hold itself out as being part of or
in any way connected with the Vendor's Group. In connection therewith,
the Vendor hereby grants to the Purchaser and its Affiliates a
non-exclusive royalty free licence to use the Xxxxx Xxxxx for a period
of six months from Completion solely for the purpose and to the extent
necessary to perform its obligations under this Clause ERROR! REFERENCE
SOURCE NOT FOUND..
10.2 The Purchaser agrees and undertakes that (in the absence of fraud) it
has no rights against and shall not make any claim against any
employee, director, agent, officer or adviser of any member of the
Vendor's Group on whom it may have relied before agreeing to any term
of this Agreement or any other document or agreement referred to herein
or entering into this Agreement or any other agreement or document
referred to herein including, without prejudice to the generality of
the foregoing, any such persons as are named in the definition of "so
far as the Vendor is aware" in Clause 1.1.
25
10.3 The Purchaser undertakes that as soon as practicable following
Completion it shall procure that Lason Information Management Limited
(subject to complying with the provisions of Section 155 Companies Act
1985 to the extent necessary) assigns to the Purchaser the benefit of
the Lason Debt.
10.4 Forthwith following Completion the Purchaser shall procure that Lason
Limited transfers the entire issued share capital of MR Technology
("MRTL") to Lason Information Management Limited ("LIML"), that
forthwith thereafter the members of MRTL pass a resolution putting MRTL
into voluntary liquidation and that prior to 31 December 2001 MRTL
shall make a distribution of all or substantially all of its assets in
that liquidation. The Purchaser further agrees that it shall procure
that LIML does not cease to trade prior to 31 December 2001 nor allow
its current accounting period to be shortened so as to expire on a date
falling prior to 31 December 2001.
10.5 The Purchaser undertakes to procure that each Group Company which
provides services to members of the Vendor's Group shall continue to
provide such services for a period of two years following Completion at
those prices on which such services are presently provided in respect
of volumes not exceeding those presently undertaken.
10.6 The Purchaser undertakes to ensure that members of its group consider
in good faith whether or not to purchase services from the Vendor's
Group in the United States, where such services can be provided by
members of the Vendor's Group on terms which are competitive with those
presently offered to the Purchaser's Group by third parties.
10.7 The Purchaser shall procure that for a period of 90 days from
Completion members of the Group provide at no cost those accounting
services to Memex Information Holdings Limited and DPTS Limited as are
presently provided.
10.8 The Purchaser shall forthwith following Completion procure that the
agreement by which a Group Company is entitled to exhibit at the London
On Line Show is assigned at no cost to the Vendor or its nominee.
10.9 The parties shall co-operate in completing the assignment for (pound
sterling) 1.00 of the Property at Xxxx 0.00 Xxxxxxxxxx Xxxxxxxxxx
Xxxxxx, St. Paul's Xxxx, Xxxx to MR-DPTS Limited.
11. VENDOR'S COVENANTS
11.1 The Vendor covenants with the Purchaser and each Group Company that it
shall not and shall procure that no member of the Vendor's Group shall
(except with the written consent of the Purchaser):
(a) for a period of two years from Completion carry on or be employed,
engaged, concerned or interested within the United Kingdom in any
business which is of the same or similar type to the business of
26
information management including data capture, entry and output
whether physical, electronic or otherwise as is now carried on by
the Group and which is competitive or likely to be competitive
with the same, save through the holding or being interested in,
for investment purposes only, not more than five per cent of any
class of the issued share capital of any company which shares are
listed on a recognised investment exchange (as defined in the
Financial Services Act 1986);
(b) for a period of two years from Completion induce or attempt to
induce any supplier of the Company or any of its Subsidiaries to
cease to supply, or to restrict or vary the terms of supply, to
the Company or any of its Subsidiaries;
(c) for a period of three years from Completion induce or attempt to
induce any director or senior employee of the Company or any of
its Subsidiaries to leave the employment of the Company or any of
its Subsidiaries; or
(d) make use of or disclose or divulge to any third party any
information of a secret or confidential nature in relation to the
Company or any of its Subsidiaries.
PROVIDED THAT nothing in this Clause 11.1 shall restrict sales
representative(s) of the Vendor's Group from selling electronic
publishing services for the digitizing of books previously produced by
traditional methodologies on a scale not materially different from that
presently conducted.
11.2 Clause 11.111.1(d) shall not extend to:-
(a) any information which is or enters the public domain other than
through a breach of Clause 11.111.1(d); or
(b) any disclosure required to be made by any applicable law or
regulation or any court or governmental, administrative,
regulatory or other authority competent to require the same.
11.3 Each of the restrictions in each paragraph or subclause above shall be
enforceable independently of each of the others and its validity shall
not be affected if any of the others is invalid.
11.4 If any of those restrictions is void but would be valid if some part of
the restrictions were deleted the restriction in question shall apply
with such modification as may be necessary to make it valid.
11.5 The Vendor acknowledges that the above provisions of this clause are no
more extensive than is reasonable to protect the Purchaser as the
purchaser of the Shares.
27
11.6 Each Group Company may with the prior written consent of the Purchaser
enforce the terms of Clause 11.1 against the Vendor under the Contracts
(Rights of Third Parties) Xxx 0000.
11.7 The consent of each Subsidiary is not necessary for any variation
(including any release or compromise in whole or in part of any
liability) or termination of this Agreement.
11.8 Following completion of the assignment of the lease held by MR
Microrite Systems Ltd, the Vendor shall on request by the Purchaser,
accept the transfer of the issued shares of that company and of any
other company which has, prior to the date hereof, been struck off the
register and which at the date it was struck off was a subsidiary of
the Company or any of its Subsidiaries in each case for a consideration
of (pound sterling) 1.
12. SHARE OPTION SCHEME
12.1 Terms defined in the Scheme of Arrangement between the Vendor and the
holders of Scheme Shares under section 425 of the Act dated 14th May,
1999 shall have the same meaning in this Clause 12.
12.2 On the exercise of any option under the Microfilm Reprographics Share
Option Scheme the Vendor shall:
(a) in consideration of the payment to the Vendor of the Consideration
in accordance with Clause 3 issue to the optionholder exercising
such option, such number of shares of Lason Common Stock as such
optionholder would have been entitled to had each share in Lason
Limited been a Scheme Share at the Scheme Record Time; and
(b) notify the Purchaser of any such exercise.
13. ANNOUNCEMENTS
RESTRICTIONS ON ANNOUNCEMENTS
13.1 No announcement, statement, press conference or other communication
shall be (or be authorised to be) made, released, issued or held by or
on behalf of any of the parties hereto or their respective directors,
officers, employees, agents or advisers before, on or after Completion
concerning this Agreement, or the subject matter or provisions of, or
transactions or matters referred to in or contemplated by, or
negotiations leading to, this Agreement, save as provided in Clause
13.2.
13.2 Clause 13.1 shall not apply:-
(a) as may be agreed in writing by the other parties hereto (such
agreement not to be unreasonably withheld or delayed); or
28
(b) to any announcement required to be made by any applicable law or
regulation or court or governmental, administrative, regulatory or
other authority provided that such announcement is only made:-
(i) to the extent required by such law or regulation or court
or authority; and
(ii) (unless prohibited by such law or regulation or court or
authority) after being discussed with the non-disclosing
parties to the extent reasonably practicable in the
circumstances.
14. GUARANTEE
14.1 In consideration of the Vendor entering into this Agreement with the
Purchaser at the request of the Guarantor, the Guarantor irrevocably
and unconditionally, as primary obligor:-
(a) guarantees to the Vendor the full, prompt and complete performance
by the Purchaser of all the Purchaser's obligations under or
pursuant to clauses 3.3 (Lason Debt), 3.4 (Tax), 9.2 (Indemnity)
and 7 (Earn-Out) of this Agreement, including the proper and
punctual payment of all sums due and payable by the Purchaser to
the Vendor under or pursuant to such clauses when the same shall
become due; and
(b) undertakes with the Vendor that if for any reason whatsoever the
Purchaser shall default in the payment of any such sum payable by
the Purchaser under or pursuant to this Agreement the Guarantor
shall forthwith on demand by the Vendor pay such sum to the
Vendor.
14.2 The obligations of the Guarantor under or pursuant to this clause 14
("the Guarantee") shall not be affected by any act, omission, matter or
thing which, but for this Clause 14.2, might operate to release or
otherwise exonerate in whole or in part the Guarantor from such
obligations, or otherwise reduce, limit or affect such obligations,
including:-
(a) any amendment to or variation of this Agreement or of any other
document referred to herein;
(b) any time, indulgence, waiver or consent at any time given to the
Purchaser or any other person;
(c) any compromise or release of, or abstention from obtaining,
perfecting or enforcing in whole or in part any security or other
right or remedy whatsoever against the Purchaser or any other
person;
(d) any legal limitation, disability, incapacity or other circumstance
relating to the Purchaser or any other person;
29
(e) any irregularity, unenforceability or invalidity of any of the
obligations of the Purchaser under or pursuant to this Agreement;
or
(f) the dissolution, amalgamation, reconstruction or insolvency of the
Purchaser.
14.3 The Guarantee is a continuing guarantee and shall remain in force until
all the obligations of the Purchaser under or pursuant to this
Agreement have been fully and completely performed, including the
payment in full of all sums payable by the Purchaser under or pursuant
to this Agreement.
15. FURTHER ASSURANCE
FURTHER ASSURANCE
15.1 Without prejudice to any restriction or limitation on the extent of any
party's obligations under this Agreement, each of the parties shall
from time to time, so far as each is reasonably able to do or procure
the doing of, all such acts and/or execute or procure the execution of
all such documents in a form reasonably satisfactory to the parties
concerned as they may reasonably consider necessary to give the other
parties the full benefit of this Agreement.
16. ASSIGNMENT
PROHIBITION ON ASSIGNMENT
16.1 Subject to Clause 16.2, no party may, nor purport to, assign, transfer,
delegate, sub-contract, mortgage, charge, put into trust or otherwise
deal with:-
(a) this Agreement;
(b) all or any of its rights or obligations arising under or out of
this Agreement; or
(c) the benefit of all or any of the other parties' obligations under
this Agreement.
Each party is entering into this Agreement for its benefit and not for
the benefit of another person.
ASSIGNMENT TO AFFILIATES
16.2 The Purchaser shall be entitled, upon giving written notice to the
Vendor, to assign all or any of its rights arising under or out of this
Agreement to any of its Affiliates; provided that, the Purchaser shall
procure that any such Affiliate shall assign such rights or benefits
back to the Purchaser immediately prior to its ceasing to be an
Affiliate of the Purchaser and written notice thereof shall be given to
the Vendor.
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17. VARIATION
No variation of this Agreement shall be effective unless made in
writing and signed by or on behalf of each of the parties to this
Agreement.
18. WAIVER
NO WAIVER BY OMISSION ETC.
18.1 No failure or delay by the parties hereto to exercise any right, power
or remedy provided by law or hereunder shall operate as a waiver of the
same or of some other right, power or remedy nor shall any partial
exercise thereof preclude any further exercise of the same or of some
other right, power or remedy. The rights and remedies provided under
this Agreement are cumulative and are not exclusive of any rights and
remedies provided by law or otherwise, unless otherwise stated in this
Agreement.
WAIVER TO BE IN WRITING
18.2 Any waiver of any right, power or remedy under this Agreement must be
in writing and may be given subject to such conditions as the grantor
may in its absolute discretion decide. Any such waiver (unless
otherwise specified) shall only be a waiver in the particular instance
and for the particular purpose for which it was given.
19. INVALIDITY
19.1 If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, that shall not affect or impair:-
(a) the legality, validity or enforceability in that jurisdiction of
any other provision of this Agreement; or
(b) the legality, validity or enforceability under the law of any
other jurisdiction of that or any other provision of this
Agreement.
20. CONTINUANCE AFTER COMPLETION
Save as otherwise provided in this Agreement, any provision of this
Agreement, or of any other documents referred to herein, which is
capable of being performed after but which has not been performed at or
before Completion shall remain in full force and effect notwithstanding
Completion.
21. ENTIRE AGREEMENT
21.1 This Agreement and any documents entered into pursuant hereto
constitutes the entire agreement between the parties hereto in relation
to the subject matter hereof
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and supersedes and extinguishes, and each party in entering into this
Agreement and such other documents agrees that it does not rely on and
shall have no remedy in respect of, all prior drafts and all prior
agreements, understandings, undertakings, arrangements, representations
and warranties (of any nature whatsoever, of any person whether a party
to this Agreement or not and whether written or oral) in relation to
such subject matter other than as expressly set out in this Agreement
as a Warranty, save that:-
(a) nothing in this Agreement shall exclude any liability or remedy
arising as a result of fraud; and
(b) the provisions of this clause 22.1 shall not prevent the Purchaser
from relying on replies given by or on behalf of the Vendor to the
Purchaser or its advisers in respect of enquiries regarding the
Properties but the limitations set out in clause 6 shall apply as
if such representations were set out in this Agreement.
21.2 Without prejudice to Clause 21.1, the Purchaser acknowledges and agrees
with the Vendor (on behalf of itself and each other member of the
Vendor's Group) that:-
(a) it does not rely on and has not been induced to enter into this
Agreement or any other agreement or document referred to herein on
the basis of any warranty, representation, statement, assurance,
covenant, agreement, undertaking, indemnity, guarantee or
commitment of any nature whatsoever (in this Clause 21.2, an
"ASSURANCE") made or given by or on behalf of any member of the
Vendor's Group or any member of the Group or any of their
respective agents, officers, employees or advisers other than
those expressly set out in this Agreement or in any document
entered into pursuant to this Agreement or, to the extent that it
has been, it has (in the absence of fraud) no rights or remedies
in relation thereto; and
(b) no member of the Vendor's Group nor any member of the Group nor
any of their respective agents, officers, employees or advisers,
has given or made any Assurance other than those expressly set out
in this Agreement or in any document entered into pursuant to this
Agreement or, to the extent that they have, the Purchaser hereby
unconditionally and irrevocably waives (in the absence of fraud)
any claim which it might otherwise have had in relation thereto.
21.3 Each of the parties acknowledges and agrees that the only remedy
available to it for breach of any provision of this Agreement shall be
for damages in breach of contract under the terms of this Agreement and
not rescission of this Agreement or damages in tort or under any
statute (whether under the Xxxxxxxxxxxxxxxxx Xxx 0000 or otherwise) nor
any other remedy. Nothing in this Clause 21.3 shall however exclude or
limit any liability or remedy arising as a result of fraud.
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22. TIME OF THE ESSENCE
EXTENSION OF TIME
22.1 Any time, date or period mentioned in this Agreement may be extended by
agreement in writing between the parties hereto or otherwise as
provided herein.
TIME OF THE ESSENCE
22.2 Save as extended as set out in Clause 22.1, any time, date or period
mentioned in this Agreement shall be of the essence and, if such time,
date or period is extended as aforesaid then such extended time, date
or period shall be of the essence.
23. COSTS
Save as otherwise provided in this Agreement, each party shall pay its
own costs and expenses in relation to the negotiation, preparation,
execution and implementation of this Agreement (and the documents
referred to herein) with the exception of (pound sterling) 14,120 of
the cost of valuation by KPMG of MRDMI and MRDPTS which shall be borne
by the Vendor and settled on Completion.
24. PAYMENTS
All payments to be made under this Agreement shall be made in full
without any set-off or counterclaim and free from any deduction or
withholding (except that set-off shall be permitted in respect of any
amounts admitted and agreed by the Purchaser and the Vendor (or which
cannot reasonably be disputed by the Vendor) or which have been finally
settled or determined and except as may be required by law in which
event such deduction or withholding shall not exceed the minimum amount
which it is required by law to deduct or withhold and the payer shall
simultaneously pay to the payee such additional amounts as will result
in the receipt by the payee of a net amount equal to the full amount
which would otherwise have been receivable had no such deduction or
withholding been required).
25. THIRD PARTY RIGHTS
Pursuant to Section 1(2) of the Contracts (Rights of Third Parties) Xxx
0000 (the "CONTRACTS ACT") the parties intend that a person who is not
a party to this Agreement has no right under the Contracts Act to
enforce any term of this Agreement (save as set forth in Clause 11.6)
but this does not affect any right or remedy of a third party which
exists or is available apart from the Contracts Act.
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26. NOTICES
ADDRESSES ETC.
26.1 Any notice or other communication to be given under this Agreement
shall be in writing and shall be sent by inland United Kingdom first
class pre-paid post (or, if overseas, by pre-paid airmail) or by fax or
by courier to:-
in the case of the Vendor:-
Lason International, Inc.
0000 Xxxxxxxxxx Xxxxxxx,
Xxxx, Xxxxxxxx 00000
For the attention of Xxxxxx X. Xxxxxx
Fax no: 000-000-000-0000
in the case of the Guarantor:-
Koninklijke PTT Post B.V.
Prinses Beatrixlaan 23
2595 AK, The Hague, The Netherlands
For the attention of Xxxxxx Xxxx
with a copy to X.X. Xxxxxxxx
Fax no: 0000-00000-0000
and in the case of the Purchaser:-
Project Hurricane Limited
X.X. Xxx 00,
Xxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx,
Xxxxxxxxxx
For the attention of Xxxxx Xxxxx
Fax no: 0000-0000-000-000
or to such other address or fax number as either party may from time to
time notify to the other in accordance with this Clause 26.
DEEMED RECEIPT
26.2 Notices sent as set out in Clause 26.1 shall be deemed to have been
received:-
(a) if sent by inland United Kingdom first class pre-paid post, on the
second Business Day after the date of posting;
(b) if sent by pre-paid airmail, on the fifth Business Day after the
date of posting;
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(c) if sent by fax, on the day that they are sent (if sent on a
Business Day before 4 p.m.) or otherwise on the next Business Day;
and
(d) if sent by courier, at the time that their receipt is signed for,
whether or not the person signing for such receipt has authority
so to do.
PROOF OF SERVICE
26.3 In proving service of the notice it shall be sufficient to show that
delivery by hand was made or that the envelope containing the notice
was correctly addressed and posted or that, in the case of a fax, a
transmission report was generated by the sender's fax machine recording
a message from the recipient's fax machine confirming that the fax was
sent to the number indicated above and that all pages were successfully
transmitted.
APPLICABILITY TO PROCEEDINGS
26.4 Save as provided in Clause 27, the provisions of this Clause 26 shall
also apply to the service of any claim form, order, judgement or other
document relating to or in connection with any proceeding, suit or
action arising out of or in connection with this Agreement.
27. PROCESS AGENT
APPOINTMENT OF AGENT
27.1 The Vendor shall at all times maintain an agent for service of process
in England in relation to any matter arising out of or in connection
with this Agreement. Such agent shall be Xxxxxx Xxxxxx of Cleary,
Gottlieb, Xxxxx & Xxxxxxxx, 00 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, and
service of any claim form, judgement or other notice of legal process
shall be sufficiently served on such party if served upon such agent.
CHANGE OF AGENT
27.2 The Vendor shall inform the other parties in writing of any change in
its process agent or the address of its process agent within 14 days of
such change. The Vendor shall appoint a new process agent if its
original process agent ceases to have an address in England and shall
give notice in writing to the other parties of such new process agent
within 14 days of its appointment.
APPOINTMENT OF AGENT
27.3 The Guarantor shall at all times maintain an agent for service of
process in England in relation to any matter arising out of or in
connection with this Agreement. Such agent shall be Project Hurricane
Limited of X.X. Xxx 00, Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx, Xxxxxxxxxx,
and service of any claim form,
35
judgement or other notice of legal process shall be sufficiently served
on such party if served upon such agent.
CHANGE OF AGENT
27.4 The Guarantor shall inform the other parties in writing of any change
in its process agent or the address of its process agent within 14 days
of such change. The Guarantor shall appoint a new process agent if its
original process agent ceases to have an address in England and shall
give notice in writing to the other parties of such new process agent
within 14 days of its appointment.
28. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
parties on different counterparts, but shall not be effective until
each party has executed at least one counterpart. Each counterpart
shall be deemed an original, but all the counterparts shall together
constitute one and the same agreement.
29. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with
English law. Any dispute, claim or matter arising under or in
connection with this Agreement or the legal relationships established
by this Agreement shall be subject to the exclusive jurisdiction of the
English courts to which the parties to this Agreement hereby submit.
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AS WITNESS whereof the parties have signed this Agreement on the date and year
first above written.
Signed by Xxxxxx X. Xxxxxx, Director, /s/ Xxxxxx X. Xxxxxx
duly authorised -----------------------
for and on behalf of Signature
Lason International, Inc.
in the presence of:-
---------------------------------------------------
Witness signature
---------------------------------------------------
Witness name
---------------------------------------------------
Witness address
---------------------------------------------------
Witness occupation
Signed by Xxxxxx Xxxx /s/ Xxxxxx Xxxx
as attorney for -----------------------
Koninklijke PTT Post BV Signature
in the presence of:-
---------------------------------------------------
Witness signature
---------------------------------------------------
Witness name
---------------------------------------------------
Witness address
---------------------------------------------------
Witness occupation
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Signed by Xxxxxx Xxxx, Director, /s/ Xxxxxx Xxxx
duly authorised -----------------------
for and on behalf of Signature
Project Hurricane Limited
in the presence of:-
---------------------------------------------------
Witness signature
---------------------------------------------------
Witness name
---------------------------------------------------
Witness address
---------------------------------------------------
Witness occupation
