Exhibit 10.1
Asset Sale and Purchase Agreement
PARTIES
1 Seller GSE Systems UK Limited (company no. 3743574) whose registered
office is at Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxxx XX00 0XX
2 Guarantors GSE Systems Inc. and GSE Process Solutions Inc., corporations
incorporated in Delaware, USA whose registered offices are at
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, XXX
3 Buyer Avantium Technologies UK Limited (company no. 4114789) whose
registered office is at Xxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxx
XX0X 0XX
4 Avantium Avantium International BV, a company incorporated in the
International Netherlands whose principal place of business is at
Xxxxxxxxxxxxxx 00, 1014 BV, XX Xxx 0000, 0000 XX, Xxxxxxxxx, Xxx
Xxxxxxxxxxx
OPERATIVE PROVISIONS
1 Definitions and interpretation
1.1 In this agreement the following definitions apply:
Agreed Form a form agreed between the parties, a copy of which
has been initialled for the purpose of identification
by or on behalf of the parties;
Assets the assets and rights to be purchased by the Buyer
under clause 2.1;
BatchCAD Limited BatchCAD Limited (company no. 2195070) whose
registered office is at Xxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxx, Xxxxxxxxxxxxxx XX00 0XX;
Business the business of software development activity
for the products BatchCad and BatchWizard, the
use of simulation and process monitoring technology and
the provision of consulting associated with reaction
kinetics, equipment design, process analysis and
scale-up;
Business Day a day (other than a Saturday or Sunday) on which the
clearing banks in the City of London are open for
business;
Completion completion of the purchase of the Assets in
accordance with clause 4;
Contracts the contracts of the Seller at the Effective Date in
relation to the Business together with the contracts
for the supply of goods and services to and by the
Business ordered or entered into in the normal course
of business on or prior to the Effective Date where
the goods have not been delivered or the contract has
not been fully performed by the Effective Date, but
excluding contracts with Employees and the Properties
(which are dealt with in the Properties Sale
Agreement);
Effective Date the close of business on 31 January 2001;
Employees means the persons employed by Seller who are listed
in schedule 1 attached;
Indebtedness all sums owed by the Seller at the Effective Date, in
connection with the Business, to, or in respect of,
creditors and accrued charges;
Intellectual all copyright and rights in the nature of copyright,
Property Rights design rights, patents, trade marks, applications for
any of the foregoing, moral rights,
know-how, confidential information or any other
registered or unregistered intellectual property rights
in the United Kingdom or any other part of the world;
Losses includes liabilities, costs, actions, proceedings,
claims and demands;
Plant and Equipment the plant, machinery, vehicles and other
chattels (other than Stock) on the Properties or
otherwise owned by the Seller at the Effective Date for
the purpose of the Business as listed in schedule 2,
including items which, although subject
to reservation of title by vendors pending payment
of the relevant purchase price, are under the control
of the Seller;
Properties those properties listed in the Properties Sale
Agreement;
Properties Sale the sale agreement in respect of the Properties, in
Agreement the Agreed Form;
Regulations the Transfer of Undertakings (Protection of
Employment) Regulations 1981 (as amended);
Retained Liabilities as defined in clause 6.1;
Senior Employee a person who is or was engaged or
employed as an employee, director or consultant in a
capacity in which he obtained confidential information
about the Business and in which he received a fee or
salary at the rate of not less than 30,000 pounds per
annum;
XXXXX Assets any and all assets (including the
Intellectual Property Rights in those assets)
relating to a feasibility study known as Project
XXXXX, undertaken by BatchCAD Limited, including but
not limited to any documents, software or results
of experiments produced by BatchCAD Limited
relating to Project XXXXX;
Stock the stock, including raw materials, work in progress,
finished goods and goods for resale owned by the
Seller at the Effective Date, for the purposes of or
in connection with the Business, including items
which, although subject to reservation of title by
vendors pending payment of the relevant purchase
price, are under the control of the Seller;
Subsidiary has the meaning set out in section 258 of the
Undertaking Companies Xxx 0000;
VAT UK value added tax;
VATA Value Added Tax Xxx 0000; and
Warranties the representations, warranties,
undertakings and obligations of the Seller contained
in clause 8 and schedule 3.
1.2 A reference to a statutory provision includes a reference to:
1.2.1 a statutory amendment, consolidation or re-enactment made before the date
of this agreement;
1.2.2 statutory instruments or subordinate legislation or orders made under the
statutory provision before the date of this agreement; and
1.2.3 statutory provisions of which the statutory provision is an amendment,
consolidation or re-enactment; but does not include a substituted
provision.
1.3 References to a statutory provision applying in England and Wales shall,
where the context requires, be replaced by references to the nearest
corresponding provision or principle in the local jurisdiction and references to
a governmental, local governmental or administrative authority or agency shall
be replaced by references to the nearest equivalent governmental, local
governmental or administrative authority or agency in that jurisdiction.
1.4 Reference to:
1.4.1 a person includes a legal or natural person, partnership, trust, company,
government or local authority department or other body (whether corporate or
unincorporate);
1.4.2 an individual includes, where appropriate, his personal representatives;
1.4.3 the singular includes a reference to the plural and vice versa; and
1.4.4 one gender includes all genders.
1.5 Unless otherwise stated, a reference to a clause, sub-clause or schedule is
a reference to a clause or a sub-clause of, or a schedule to, this agreement and
a reference to this agreement includes its schedules.
1.6 Clause headings in this agreement and in the schedules are for ease of
reference only and do not affect its construction.
1.7 In construing this agreement the so-called ejusdem generis rule does not
apply and accordingly the interpretation of general words is not restricted by
words indicating a particular class or particular examples.
2 Agreement for sale
2.1 The Seller sells with full title guarantee and the Buyer purchases as at the
Effective Date and free from encumbrances all the assets and rights owned by or
(although subject to reservation of title by vendors) under the control of the
Seller and used in the conduct of the Business listed below:
2.1.1 the Properties (in accordance with the terms of the Properties Sale
Agreement);
2.1.2 the Plant and Equipment;
2.1.3 the Stock; and
2.1.4 the XXXXX Assets.
3 Consideration
The Seller agrees that the purchase consideration for the Assets specified
in clause 2.1 shall be satisfied by the allotment at Completion of shares in
Avantium International BV to GSE Systems Inc. in accordance with the US asset
purchase agreement dated on or around today's date between, inter alios, the
Guarantors and Avantium International and the agreement by
Avantium International to guarantee the obligations of the Buyer to the Seller
in accordance with the terms of this agreement.
4 Completion
4.1 Completion shall take place immediately following the signing of this
agreement. Subject to clause 4.5, the transactions mentioned in sub-clauses 4.2
to 4.3 shall then take place.
4.2 The Seller shall deliver to the Buyer, at the principal office of the
Business such of the Assets as are capable of being transferred by delivery.
4.3 The Seller shall cause to be delivered or (if requested by the Buyer) made
available to the Buyer at the offices of the Buyer:
4.3.1 such documents as are required by the Buyer to complete the sale and
purchase of the Assets and vest title to the Assets in the Buyer, including the
Properties Sale Agreement;
4.3.2 its records of National Insurance and PAYE relating to all the Employees
duly completed up to the Effective Date; and
4.3.3 a legal opinion of Xxxxxxx Xxxxxx, in-house legal counsel to the
Guarantors, in the Agreed Form in relation to the Guarantors.
4.4 The Buyer shall not be obliged to complete the purchase of any of the Assets
and the Properties unless the purchase of all the Assets is completed in
accordance with this agreement and the Properties Sale Agreement.
4.5 The Buyer may waive any requirements contained in clauses 4.2 and/or 4.3,
and may waive a requirement either unconditionally or subject to the condition
that the Seller gives, on Completion, a written indemnity or undertaking to the
Buyer in such form as it requires.
5 Employees
5.1 The parties agree and acknowledge that the Regulations apply to the
Employees and that, pursuant to the Regulations, the contracts of employment of
the Employees will have effect after Completion as if originally made between
the Buyer and the Employees.
5.2 The Seller shall indemnify the Buyer and keep the Buyer indemnified from and
against each and every action, proceeding, cost, claim, loss and demand brought
against or incurred by the Buyer which relates to or arises out of any act or
omission by the Seller prior to Completion or relate to any event or occurrence
prior to Completion in connection with the contracts of employment of the
Employees or of any other obligation or duty or liability (whether statutory or
otherwise) owed by the Seller to or in relation to any of the Employees in
relation to their employment (or the termination of such employment) being
entered into, arising or occurring prior to Completion.
5.3 The Seller warrants that no employees will transfer to the Buyer by virtue
of the Regulations other than the Employees and the Seller shall indemnify the
Buyer and keep it indemnified against each and every loss, liability, cost,
charge, expense, action, proceeding, claim and demand incurred or suffered by
the Buyer (including without limitation all reasonable legal expenses and/or
professional fees) arising out of or in connection with:
5.3.1 the employment or termination of employment of any person who is not an
Employee who claims to be or have been employed by the Seller immediately prior
to or at any time before Completion and who becomes or claims to become an
employee of the Buyer by operation of the Regulations in relation to this
agreement; or
5.3.2 the termination of employment by the Buyer on or after Completion of a
person other than an Employee who claims to have become an employee of the Buyer
by reason of the operation of the Regulations in relation to this agreement.
5.4 The Seller shall comply with Regulation 10 of the Regulations and the Buyer
warrants that it has complied with its obligations under Regulation 10(3) and
otherwise to provide information to the Seller concerning its obligations to
inform and consult with representatives of employees affected by the sale and
purchase of the Assets under this agreement. The Buyer shall indemnify the
Seller and keep it indemnified against each and every loss, liability, cost,
charge, expense, action, proceeding, claim and demand arising out of or
resulting from the failure of the Buyer to comply with its obligations under
Regulation 10(3). The Seller shall indemnify the Buyer and keep it indemnified
against each and every loss, liability, cost, charge, expense, action,
proceeding, claim and demand arising out of or resulting from the failure of the
Seller to comply with its obligations under Regulation 10 of the Regulations.
5.5 Salaries and other emoluments, including tax and national insurance payments
and contributions to retirement benefit schemes, relating to the Employees shall
be borne by the Seller up to Completion and all necessary apportionments shall
be made.
5.6 The Buyer shall indemnify the Seller and keep it indemnified against each
and every action, proceeding, cost, claim, loss and demand brought against or
incurred by the Seller (including, without limitation, all reasonable legal
expenses and/or professional fees) which relate to or arise out of any act or
omission by the Buyer or relate to any event or occurrence after the date of
Completion of any obligation under or in connection with the contracts of
employment of the Employees or of any other obligation or duty or liability
(whether statutory or otherwise) owed by the Buyer to or in relation to any of
the Employees in relation to their employment or the termination being entered
into, arising or occurring after the date of Completion.
5.7 The Seller shall indemnify the Buyer against each and every loss, liability,
cost, charge, expense, action, proceeding, claim and demand incurred or suffered
by the Buyer (including without limitation all reasonable legal expenses and/or
professional fees) arising out of or in connection with:
5.7.1 all bonus payments, pension contributions and/or further compensation
payable to either Xxxxxxxx Xxxxxxxx and/or Xx Xxxxx Xxxxxx under clauses 6.3.1,
6.3.2, 6.4 and Schedule 1 of their respective service agreements dated 20 April
1999; and
5.7.2 any liability resulting from any breach, termination or other variation by
the Seller or any of the Guarantors of:
5.7.2.1 their agreement with Xxxxxxxx Xxxxxxxx and Xx Xxxxx Xxxxxx dated on or
around February 23, 2001 to make payments to them pursuant to the provisions of
the service agreements referred to in clause 5.7.1 above (the "Executives'
Variation Agreement"); or
5.7.2.2 their agreement with Xxxxxxxx Xxxxxxxx and Xx Xxxxx Xxxxxx dated on or
around February 23, 2001 to make payments to them pursuant to the provisions of
an asset sale and purchase agreement dated 20 April 1999 between, inter alios,
the Seller, the Guarantors, BatchCAD Limited, Xxxxxxxx Xxxxxxxx and Xx Xxxxx
Xxxxxx (the "BatchCAD Variation Agreement").
5.8 The Seller and the Guarantors undertake to notify the Buyer forthwith by
facsimile notice in accordance with clause 18 (and in any event not later than
two Business Days) following:
5.8.1 a breach by the Seller and/or either of the Guarantors of their obligation
to make the payment of 113,500 pounds in accordance with the terms of the
BatchCAD Variation Agreement; or
5.8.2 receipt of written notice from any of BatchCAD, BatchCAD Consulting
Limited, Xxxxxxxx Xxxxxxxx or Xx Xxxxx Xxxxxx of the breach referred to in
clause 5.8.1.
5.9 In the event that the Seller and the Guarantors (or any of them) are, or (in
the reasonable opinion of the Buyer) are likely to be, in breach of their
obligations to any of BatchCAD, BatchCAD Consulting Limited, Xxxxxxxx Xxxxxxxx
or Xx Xxxxx Xxxxxx pursuant to the Executives' Variation Agreement and/or the
BatchCAD Variation Agreement:
5.9.1 the Buyer (or another member of its group) may (at its option and without
any obligation) discharge part or all of such obligations on behalf of the
Seller and the Guarantors; and
5.9.2 the Seller and the Guarantors shall on demand indemnify the Buyer (or the
relevant member of its group) against each and every loss, liability, cost,
charge, expense, action, proceeding, claim and demand incurred or suffered by
the Buyer (or the relevant member of its group) (including without limitation
all reasonable legal expenses and/or professional fees) arising out of or in
connection with the discharge of such obligations.
6 Liabilities
6.1 In this clause 6, Retained Liabilities are all liabilities of the Seller
other than the liabilities expressly assumed by the Buyer in this agreement and
the Properties Sale Agreement. In particular, the Retained Liabilities include
the Seller's liabilities and obligations in respect of:
6.1.1 the Indebtedness;
6.1.2 the Contracts;
6.1.3 sums outstanding at the Effective Date in respect of items included in the
Stock; and
6.1.4 this agreement.
6.2 The Seller shall indemnify the Buyer in respect of Losses arising from the
Retained Liabilities and/or any failure on the part of the Seller to discharge
the Retained Liabilities or any of them.
6.3 On becoming aware of a claim or proceedings in respect of its retained
assets (if any) which could affect the Business, the Seller shall promptly give
notice of it to the Buyer and shall not take steps which might damage the
commercial interests of the Buyer without the prior written consent of the
Buyer.
7 Value added tax
7.1 The Buyer hereby warrants and undertakes to the Seller that the Buyer: (a)
is registered or shall as a result of this transaction become registrable for
VAT, and (b) shall continue to use the Assets after Completion to carry on a
business of the same kind as the Seller (namely the Business) for a period of
not less than three months after the actual date of Completion. Upon request,
the Buyer shall forthwith produce to Seller evidence satisfactory to the Seller
that the Buyer is registered for VAT purposes under the VATA.
7.2 The Seller and Buyer believe that on the assumption that the relevant
statutory provisions are complied with, the sale of the Assets will be treated
as a transfer of a going concern and as such the sale is to be treated as
neither a supply of goods nor a supply of services for the purposes of the VATA
and accordingly no VAT will be payable on the consideration.
7.3 If at any time after Completion, a determination is made that the sale of
the Assets did not constitute a transfer of a going concern, and such
determination is based upon the Buyer's fault or negligence, then the Buyer
shall indemnify and hold harmless the Seller from all VAT payable in respect of
the consideration for the sale of the Assets together with all interest and
penalties. Where such determination is based upon Seller's fault or negligence,
then Buyer will be held harmless in respect of any interest and penalties.
7.4 If VAT is due on any part of the sale, Seller will not seek payment of the
VAT from the Buyer until the earlier of: (a) the date on which the Seller has to
account for the VAT to HM Customs & Excise; and (b) the date on which the Buyer
secures repayment of the VAT from HM Customs & Excise.
7.5 Neither the Seller (nor any relevant associate of the Seller as defined in
paragraph 3(7) Schedule 10 VATA) has elected to waive exemption from VAT in
respect of the Properties and neither the Seller nor any relevant associate of
the Seller will do so on or before Completion.
7.6 On Completion, the Seller shall deliver to the Buyer all the records of the
Business for VAT purposes which are required by s 49(1)(b) VATA to be preserved
by the Buyer.
7.7 The Buyer shall preserve each of the records delivered to it by the Seller
in accordance with clause 7.6 until the expiration of six years from its date or
(if that date is uncertain) six years from Completion and shall, on reasonable
notice, make it available to the Seller or its agents during normal business
hours.
8 Warranties by the Seller
8.1 The Seller warrants to the Buyer that the statements in schedule 3 are true
and accurate.
8.2 The Seller warrants, in relation to any Warranty which refers to its
knowledge, information or belief, that it has made full enquiry into the subject
matter of the Warranty.
8.3 Each of the Warranties is without prejudice to the other Warranties and,
except where expressly stated otherwise, no clause governs or limits the extent
or application of the other clauses.
8.4 If any of the Assets are transferred by the Buyer, the benefit of the
Warranties may be assigned wholly or partly to the transferee who shall
accordingly be entitled to enforce them against the Seller as if it were named
in this agreement as the Buyer.
9 Restrictive agreement
9.1 To assure to the Buyer the full benefit of the Business, the Guarantors and
the Seller undertake by way of further consideration for the obligations of the
Buyer under this agreement, as separate and independent agreements, that it
shall not without the Buyer's prior written consent:
9.1.1 disclose to another person or itself use for any purpose, and shall use
all reasonable endeavours to prevent the publication or disclosure of,
information concerning the Business or Assets or the transactions or affairs of
the clients or customers of the Business, of which it has knowledge;
9.1.2 for five years after Completion, in relation to a business which is
substantially the same as or in direct competition with the Business, either on
its own account or for another person, directly or indirectly solicit, interfere
with or endeavour to entice away from the Buyer a person who, to its knowledge,
is, or has, during the two years preceding Completion, been a client, customer
or supplier of, or in the habit of dealing with, the Seller in relation to the
Business;
9.1.3 for five years after Completion, in relation to a business which is
substantially the same as or in direct competition with the Business either on
its own account or for another person, directly or indirectly supply goods or
services to a person who, to its knowledge, is, or has during the two years
preceding Completion been, a client, customer, or supplier to or in the habit of
dealing with the Seller in relation to the Business;
9.1.4 for five years after Completion, in relation to a business which is
substantially the same as or in direct competition with the Business either on
its own account or for another person, directly or indirectly, offer employment
to or employ or offer or conclude any contract for services with any Senior
Employee;
9.1.5 for five years after Completion, carry on or be engaged or concerned in,
within any of the countries listed in schedule 4 in a business which is
substantially the same as or in direct competition with the Business, or a
material part of it, as now carried on (although, for the avoidance of doubt the
restrictions in this sub-clause 9.1.5 shall not prevent the Seller and the
Guarantors from being engaged or concerned with simulation and control
businesses for the manufacturing market);
9.1.6 at any time after Completion, make adverse comments in relation to the
Buyer or the Business or its employees.
9.2 The Guarantors and the Seller further undertake to procure that none of
their respective Subsidiary Undertakings, officers or employees does any of the
matters set out in clause 9.1.
9.3 The Guarantors and the Seller agree that the covenants and undertakings
contained in clause 9.1 and 9.2 are reasonable and are entered into for the
purpose of protecting the goodwill of the Business. Accordingly the benefit of
the covenants and undertakings may be assigned by the Buyer and its successors
in title without the consent of the Guarantors or the Seller. 9.4 Each covenant
and undertaking contained in clause 9.1 and 9.2 shall be construed as a separate
covenant and undertaking. If one or more of them is held to be against the
public interest or unlawful or an unreasonable restraint of trade, the remaining
covenants and undertakings shall continue to bind the Guarantors and the Seller.
10 Information
10.1 The Seller shall preserve all information, records and other documents
relating to its retained assets (if any) for a period of not less than three
years and, upon reasonable notice by the Buyer, make them available for
inspection by the Buyer at reasonable times during normal business hours.
10.2 If this agreement ceases to have effect, the Buyer shall release and return
to the Seller all information and documents concerning the Business and the
Assets provided to it or its advisers in connection with this agreement and
shall not use or make available to another person any of the information which
is not in the public domain.
11 Guarantee by the Guarantors
11.1 In consideration of the entry of the Buyer into this agreement, each of the
Guarantors irrevocably and unconditionally, as primary obligors undertake and
guarantee to the Buyer on demand the performance by the Seller of all its
obligations under this agreement or the other documents to be executed in
connection with it, including, without limitation, the due and punctual payment
of all sums now or subsequently payable by the Seller to the Buyer under this
agreement or the other documents to be executed in connection with it.
11.2 The Guarantors shall indemnify the Buyer on demand against losses and
expenses which the Buyer suffers by reason of a default by the Seller in the
performance of its obligations under this agreement or the other documents to be
executed in connection with it and compensate the Buyer for all resulting loss
and damage.
11.3 If the Seller defaults in the performance of its obligations under this
agreement, the Guarantors shall on demand perform (or procure the performance
of) that obligation, so that the same benefits shall be conferred on the Buyer
as it would have received if the Seller had duly performed that obligation.
11.4 The obligations and liabilities of the Guarantors in this clause are
continuing obligations and liabilities which shall remain in force until the
obligations of the Seller under this agreement and the other documents to be
executed in connection with it have been performed.
11.5 The obligations of the Guarantors under this clause shall not be affected
by anything which, but for this clause, might operate to release or otherwise
exonerate it from or affect its obligations. In particular (but without
limitation) none of the following shall affect the obligations of the
Guarantors:
11.5.1 time, indulgence, waiver or consent given at any time to the Seller or
another person;
11.5.2 a compromise or release of or abstention from perfecting or enforcing any
rights or remedies against the Seller or another person;
11.5.3 a legal disability, incapacity or other circumstances relating to the
Seller or another person;
11.5.4 the dissolution, amalgamation, reconstruction or insolvency of any of the
Guarantors or the Seller; and
11.5.5 a variation of this agreement or any of the ancillary agreements or
agreements pursuant to which this agreement is entered into.
11.6 The obligations and liabilities contained in this clause may be enforced
without the Buyer first taking any action against the Seller.
11.7 the Buyer may make one or more demands under this clause.
11.8 Nothing in this agreement shall operate to impose a liability or obligation
on the Guarantors which is greater or more onerous than the liability imposed on
or obligation assumed by the Seller in this agreement.
12 Guarantee by Avantium International
12.1 In consideration of the entry of the Seller into this agreement, Avantium
International irrevocably and unconditionally, as primary obligor undertakes and
guarantees to the Seller on demand the performance by the Buyer of all its
obligations under this agreement or the other documents to be executed in
connection with it, including, without limitation, the due and punctual payment
of all sums now or subsequently payable by the Buyer to the Seller under this
agreement or the other documents to be executed in connection with it.
12.2 Avantium International shall indemnify the Seller on demand against losses
and expenses which the Seller suffers by reason of a default by the Buyer in the
performance of its obligations under this agreement or the other documents to be
executed in connection with it and compensate the Seller for all resulting loss
and damage.
12.3 If the Buyer defaults in the performance of its obligations under this
agreement, Avantium International shall on demand perform (or procure the
performance of) that obligation, so that the same benefits shall be conferred on
the Seller as it would have received if the Buyer had duly performed that
obligation.
12.4 The obligations and liabilities of Avantium International in this clause
are continuing obligations and liabilities which shall remain in force until the
obligations of the Buyer under this agreement and the other documents to be
executed in connection with it have been performed.
12.5 The obligations of Avantium International under this clause shall not be
affected by anything which, but for this clause, might operate to release or
otherwise exonerate it from or affect its obligations. In particular (but
without limitation) none of the following shall affect the obligations of
Avantium International:
12.5.1 time, indulgence, waiver or consent given at any time to the Buyer or
another person;
12.5.2 a compromise or release of or abstention from perfecting or enforcing any
rights or remedies against the Buyer or another person; 12.5.3 a legal
disability, incapacity or other circumstances relating to the Buyer or another
person;
12.5.4 the dissolution, amalgamation, reconstruction or insolvency of any of
Avantium International or the Buyer; and
12.5.5 a variation of this agreement or any of the ancillary agreements or
agreements pursuant to which this agreement is entered into.
12.6 The obligations and liabilities contained in this clause may be enforced
without the Seller first taking any action against the Buyer.
12.7 the Seller may make one or more demands under this clause.
12.8 Nothing in this agreement shall operate to impose a liability or obligation
on Avantium International which is greater or more onerous than the liability
imposed on or obligation assumed by the Buyer in this agreement.
13 Announcements
Except as required by law no announcement or comment shall be made in relation
to this agreement except for the announcement in the Agreed Form or otherwise as
specifically agreed between the Seller and the Buyer.
14 Waiver
14.1 The rights of the parties in respect of a breach of this agreement shall
not be affected by Completion, by investigations made by them or on their behalf
into the Business or the Assets, by its rescinding, or failing to rescind, this
agreement, or failing to exercise, or delaying in exercising, a right or remedy,
or by anything else, except a specific authorised written waiver or release. A
single or partial exercise of a right or remedy provided by this agreement or by
law does not prevent its further exercise or the exercise of another right or
remedy.
14.2 Waiver by any party of a breach of a term of this agreement, or of a
default under it, does not constitute a waiver of another breach or default nor
affect the other terms of this agreement.
14.3 The rights and remedies provided in this agreement are cumulative and not
exclusive of any other rights or remedies.
15 Costs and taxation
15.1 Expenses incurred by or on behalf of the parties, including the fees of
agents and advisers employed in connection with the negotiation, preparation or
execution of this agreement, shall be borne by the party which incurred the
liability.
15.2 If a non-defaulting party incurs any taxation on a sum paid pursuant to
this agreement, the relevant defaulting party shall pay the non-defaulting party
a sum which will leave the non-defaulting party in the same after-tax position
as it would have been in had no tax been imposed.
16 Further assurance
16.1 Following Completion, the Seller shall (and shall procure that its
Subsidiary Undertakings shall) from time to time at its own expense and at the
reasonable request of the Buyer:
16.1.1 execute any document and do any thing; and
16.1.2 use reasonable endeavours to procure that a third party executes any
document and does any thing; reasonably necessary to vest full legal and
beneficial title to the Assets to the Buyer.
16.2 If the Seller fails to respond within 30 days of receipt of written notice,
the Seller appoints the Buyer as its attorney, with full power of delegation, in
its name and on its behalf to execute, seal and deliver any deed or document and
to do any thing that is required by clause 16.1. This appointment is by way of
security for the Seller's obligations under clause 16.1 and is irrevocable.
17 Joint and several liability
17.1 The obligations entered into in this agreement by the Guarantors are
entered into jointly and severally.
17.2 The Buyer may release or compromise, in whole or in part, the liability of
any of the Seller or the Guarantors or grant time or other indulgence without
affecting its rights against any of the other parties or any other person.
18 Communications
18.1 Communications between the parties with respect to this agreement shall be
in writing and shall:
18.1.1 be delivered by hand, or sent by first class prepaid post (or airmail if
sent outside Great Britain) to the address of the addressee as set out in this
agreement or to such other address as the addressee notifies for the purpose of
this clause; or
18.1.2 be sent by facsimile to the facsimile numbers stated below or as notified
for the purpose of this clause.
18.2 In the absence of evidence of earlier receipt, communications shall be
deemed to have been received as follows:
18.2.1 (if sent by post within Great Britain) two Business Days after posting;
18.2.2 (if sent by post outside Great Britain) ten Business Days after posting;
18.2.3 (if delivered by hand) on the day of delivery, if delivered at least two
hours before the close of business hours on a Business Day, and otherwise on the
next Business Day; or
18.2.4 (if sent by facsimile) at the time of transmission, if received at least
two hours before the close of business hours on a Business Day, and otherwise on
the next Business Day.
18.3 For the purposes of this clause 18, "business hours" means between the
hours of 10.00 and 18.00 inclusive, London time.
18.4 In proving service it shall be sufficient to prove that personal delivery
was made, or that the envelope containing the notice was properly addressed and
stamped and placed in the post or that the facsimile transmission was
transmitted to the specified number and a confirmatory transmission report
received.
18.5 Communications addressed to the Seller shall be marked for the attention of
Xxxxxxx Xxxxxx. Communications addressed to the Buyer shall be marked for the
attention of Marjolein van der Linden.
18.6 The facsimile numbers referred to in clause 18.1 are:
for the Seller and each of the Guarantors: 001 410 772 3599
for the Buyer: x00 (0) 00 000 0000
18.7 Nothing in clauses 18.4 and 18.5 affects the right to serve process in any
other manner permitted by law.
19 Invalidity
19.1 Subject to clauses 19.2 and 19.3, if a term in or provision of this
agreement is held to be illegal or unenforceable, in whole or in part, under an
enactment or rule of law, it shall to that extent be deemed not to form part of
this agreement, and the enforceability of the remainder of this agreement shall
not be affected.
19.2 If a provision of this agreement is, or but for this clause would be, held
to be illegal or unenforceable, in whole or part, but would be legal and
enforceable if the period or geographical application were reduced or if part of
the provision were deleted, the provision shall apply with the minimum
modification necessary to make it legal and enforceable.
19.3 If a provision of this agreement is held to be illegal or unenforceable, in
whole or in part, and clause 19.2 cannot be used to make it legal and
enforceable, the Buyer may require the Seller to enter into a new deed under
which the Seller undertakes in the terms of the original provision, but subject
to such amendments as the Buyer specifies in order to make the provision legal
and enforceable. The Seller will not be obliged to enter into a new deed that
would increase its liability beyond that contained in this agreement, had all
its provisions been legal and enforceable.
19.4 If the Seller fails to respond within 30 days of receipt of written notice,
the Seller appoints the Buyer as its attorney, with full power of delegation, in
its name and on its behalf to execute, seal and deliver any deed or document and
to do any thing that is required by clause 19.3. This appointment is by way of
security for the Seller's obligations under clause 19.3 and is irrevocable.
20 Proper law
This agreement shall be governed by and construed in accordance with
English law and the parties submit to the exclusive jurisdiction of the English
courts.
Executed and delivered as a deed on the date of this document.
SCHEDULE 1
Employees
Xxxxxxxx Xxxxxxxx
Xx Xxxxx Xxxxxxx Xxxxxx
Xx Xxxxxx Xxxxxx
Xxxx Xxxxx
Xxxxxx Xxxxxxx
Xxx Xxxx
Xxx XxXxx
SCHEDULE 2
Plant and Equipment
Asset Registration Description Supplier Date
Nos Purchased
A0001 Dell Dimension XPSR450 with 17" Dell 23-Dec-98
D1028LR Monitor
A0002 Dell Dimension XPSR450 with 17" Dell 23-Dec-98
D1028LR Monitor
A0003 Dell Dimension XPSR450 with 17" Dell 26-Oct-98
D1028LRMonitor
A0004 Dell Dimensionsr XPS450 Dell 26-Oct-98
A0005 Dell computer XPSR450 Dell
A0006 Computer Simply P233 server Simply 29-Jun-98
Computers
A0007 Monitor 17" CTX server
A0008 Computer Hill 486 CD writer
A0009 Monitor 15" Adi ProVista / CD writer Action 1-Apr-00
A0010 HP laser printer 1100 Action 17-Mar-00
A0011 Dell laptop
A0012 Laptop - Inspiron 25-May-99
A0013 Satellite 4080XCDT laptop Toshiba 28-May-99
A0014 Port replicator Toshiba
A0015 Monitor 17" Simply Computers
A0016 Logitech keyboard Action 23-Mar-00
A0017 Samsung SyncMaster 520TFT flat-screen Video
A0018 Toshiba laptop PC World 1-Apr-99
A0019 Toshiba port replicator Action 10-Apr-00
A0020 Monitor Adi ProVista Action 1-Apr-00
A0021 Logitech keyboard Action 18-Feb-00
A0022 Comms print server Hill
A0023 Monitor 15" AOG Model 5L1R print server
A0024 Xerox printer docuprint N17
A0025 HP4 laser printer 2A 2-Feb-99
A0026 Epson colour printer 850 2B
A0027 Canon Fax B-150
A0028 Canon Fax B-150 Action 7-Mar-00
A0029 Dev laptop 450 P3 Dell 17-Feb-00
A0030 Compaq Armada E500 laptop Action 11-Apr-00
A0031 Convenience base Action 11-Apr-00
A0032 Compaq Presario notebook laptop PC World (MH) 1-Oct-00
A0033 Simply computer Simply Computers
A0034 Monitor 8X Simply Computers
A0035 Logitech Keyboard Action 23-Mar-00
A0036 Computer - clone
A0037 Hitachi monitor 17"
A0038 Dev laptop 450 P3 Dell 17-Jan-00
A0039 Computer NBSK6-2 000 XXX 0-Xxx-00
Xxxxxxx00 test bed
A0040 Monitor 17" Windows 98 test bed NBS 4-Apr-00
A0041 Epson Stylus Pro Printer
A0042 Compaq Armada M700 MicroWarehouse 15-Sep-00
PIII/700 laptop
Desks x 12 IKEA 3-Aug-99
Chairs x 11 IKEA 3-Aug-99
Cupboards x 2 IKEA 3-Aug-99
Carpet Dickinsons 3-Aug-99
Telephone system for 2a Select Telecom 3-Aug-99
External modems, switch boxes Select Telecom 3-Aug-99
Fridge SM 3-Aug-99
Microwave Argos 3-Aug-99
Desks x 13 IKEA 3-Aug-99
Chairs x 8 IKEA 3-Aug-99
Filing cabinets x 6 3-Aug-99
Cupboards x 3 IKEA 3-Aug-99
Desk lights and fans 3-Aug-99
Carpets and blinds 3-Aug-99
Books 3-Aug-99
Book cases 3-Aug-99
Partitioning of 2b West End Joinery 18-Feb-00
Electrical work 2b Robson Walker 18-Feb-00
2 Ace Chairs for 2b Action 18-Feb-00
Alcatel telephones Select Telecom 18-Feb-00
Carpet and vinyl for 2b Carpet Warehouse 21-Feb-00
Fire extinguishers for 2b Chubb Fire 21-Feb-00
Filing cabinets for 2b Neat Ideas 21-Feb-00
Redcare alarm system Secom plc 21-Feb-00
Work stations for 2b IKEA 3-Mar-03
GSE signs Setting Studio 3-Mar-00
2 Microwaves Xxxxx 3-Mar-00
2 venetian blinds for 2b IKEA 3-Mar-00
BT new line for BT 8-Mar-00
Redcare alert 2b
BT new line for fax 2b BT 8-Mar-00
4 window blinds for 2b Baileys Blinds 8-Mar-00
New door, lock West End Joinery 9-Mar-00
& 2 mech locks
Willings Press Willings Press 7-Apr-00
Guide 2000 x 2
Fire proof Viking Direct 10-Apr-00
filing cabinet
2b meeting room furniture IKEA 13-Apr-00
Laser printer Action 3-May-00
cartridges x 3
SCHEDULE 3
Warranties
1 Employment
1.1 Employees
1.1.1 Save for Xxxxx Xxxxxx, the Employees comprise all the persons
employed by the Seller in relation to the Business.
1.1.2 No Employee has given or (save for Xxxxx Xxxxxx) received notice
terminating his employment and no Employee will be entitled to give notice as a
result of this agreement.
1.2 Terms of employment
1.2.1 Complete and accurate particulars of the terms and conditions of
employment of all the Employees, including profit sharing or commission or
discretionary bonus arrangements have been supplied in writing to the Buyer or
its solicitors.
1.2.2 Save for the executive service agreements between, inter alios, GSE
Systems UK Limited and each of Xx Xxxxx Xxxxxx and Xxxxxxxx Xxxxxxxx, true and
accurate copies of which have been provided to the Buyer or its solicitors,
there are no schemes in operation by or in relation to the Seller under which an
Employee is entitled to a commission or other remuneration calculated by
reference to the turnover or profits of the Business or part of it.
1.2.3 There are no negotiations for an increase in the remuneration or
benefits of any Employee.
1.2.4 The Employees have received their full entitlement to all and any
remuneration, including profit sharing, commission, discretionary bonus or other
contractual arrangements which have accrued up to Completion.
1.3 Industrial disputes and agreements
1.3.1 None of the Employees is involved in an industrial dispute and, to
the best of the Seller's knowledge, information and belief, there is nothing
which may result in an industrial dispute involving Employees, and none of the
provisions of this agreement, including the identity of the Buyer, may lead to
an industrial dispute.
1.4 Pensions
1.4.1 Apart from payments made to the GSE Systems UK Limited Group Personal
Pension Plan which is a grouped personal pension scheme with Royal & Sun
Alliance (the "Pension Plan") and the Life Assurance Scheme and the Long Term
Disability Scheme (together the "Disclosed Schemes"), the Seller is not under
any legal obligation or a party to an ex-gratia arrangement, to pay pensions,
gratuities, superannuation allowances, life assurance benefits, medical or
disability benefits or the like, or otherwise to provide "relevant benefits"
within the meaning of s612(1) ICTA, to or for any of the Employees or any
spouse, widow, widower, child, dependant of any of them; and there are no
retirement benefit, or pension or death benefit, or medical or disability
benefit, or similar schemes or arrangements in relation to, or binding on the
Seller or to which the Seller contributes or to which the Seller has previously
contributed. No proposal has been announced or promise made to establish any
schemes, arrangement or practice for the provision of such benefits.
1.4.2 All contributions and expenses due to the Disclosed Schemes from the
Seller or any Employee or former employee of the Seller were paid when they fell
due and are not paid in arrears.
1.4.3 There are not and never have been in respect of the Disclosed Schemes
(including access to the Disclosed Schemes) any civil, criminal or arbitration
proceedings nor are there any other claims or disputes in progress pending or
threatened against the Seller or any other person and after making due and
careful enquiries the Seller is not aware of any circumstance which might give
rise to any such claims.
1.4.4 No promise or guarantee (oral or written) has been made or given to
any Employee by the Seller that any particular level or amount of benefits will
be provided for or in respect of him under the Pension Plan on his retirement,
death or leaving service.
1.4.5 Complete and accurate details of the rate and amount of contributions
made by the Seller to the Disclosed Schemes in respect of each Employee entitled
to such a contribution have been disclosed in writing to the Buyer or its
solicitors.
1.4.6 The Seller has not provided any financial or investment advice to any
person in relation to the Disclosed Schemes in breach of the Financial Services
Xxx 0000.
1.4.7 The Seller has not discriminated in breach of Article 141 of the EC
Treaty, any directive of the European Commission or a ruling or judgment of any
court relating to Article 141 of the EC Treaty, with regard to eligibility for
membership of the Disclosed Schemes and the payment of a Seller contribution to
the Pension Plan in respect of any Employee.
2 Assets
2.1 Ownership of Assets
2.1.1 The Seller owns all the Assets absolutely.
2.1.2 The Seller has not disposed of or agreed to dispose of, or created,
or granted, or agreed to create or grant a security interest or other
encumbrance in respect of, any of the Assets.
2.1.3 The Assets are not subject to, and there is no agreement or
commitment to give or create, an option, lien or encumbrance (including an
Inland Revenue charge as defined in s237 Inheritance Tax Act 1984).
2.1.4 There has been no exercise, purported exercise, or claim for a
charge, lien, encumbrance or equity, over the Assets, and there is no dispute
directly or indirectly relating to the Assets.
3 XXXXX Assets
3.1 The Seller is the sole legal and beneficial owner of the XXXXX Assets
and there are no encumbrances restricting the use of those assets or affecting
those assets or any rights attaching to them.
3.2 The use or other exploitation of the XXXXX Assets does not and will not
require any licence or consent from, or the making of any royalty or similar
payment to, a third party and no such use or exploitation would infringe the
rights of a third party.
3.3 No licences have been granted by the Seller (whether express or
implied, formal or informal) in relation to the XXXXX Assets.
3.4 There have not been any actions, claims or allegations by any third
party alleging that the Seller's use or other exploitation of the XXXXX Assets
infringes any third party Intellectual Property Rights and there are not and
there have not been any facts, matters or circumstances which could give or
might have given rise to any such action, claim or allegation.
3.5 Save as set out in this agreement, the XXXXX Assets are provided "as
is" without any warranties, whether express or implied, including but not
limited to the implied warranties of merchantability and fitness for a
particular purpose.
4 Properties
4.1 Title
4.1.1 The Seller is the legal and beneficial owner of the Properties.
4.1.2 The Seller occupies the Properties for the purposes of the Business
4.1.3 The Seller has a good title to the Properties.
4.1.4 The Seller has in its possession or under its control all deeds and
documents necessary to prove title to the Properties and has provided full
copies of such deeds and documents to the Buyer.
4.1.5 The Seller does not use or occupy any other property in connection
with the Business.
4.2 Encumbrances
4.2.1 To the best of Seller's knowledge, information and belief, the
Properties are free from any mortgage, debenture, charge, rent-charge, lien or
other encumbrance.
4.2.2 To the best of Seller's knowledge, information and belief, the
Properties are not subject to outgoings other than rent, service charges,
business rates, water rates and insurance premiums.
4.3 Planning matters
4.3.1 The use of the Properties is the permitted use for the purposes of
the Planning Acts ("the consolidating Acts" as defined in the Planning
(Consequential Provisions) Xxx 0000 and any other legislation relating to town
and country planning from time to time in force).
4.3.2 None of the Properties is listed as being of special historic or
architectural importance or located in a conservation area.
4.3.3 To the best of Seller's knowledge, information and belief, all claims
and liabilities under the Planning Acts or other legislation have been
discharged, and no claim or liability, contingent or otherwise, is outstanding.
4.4 Statutory obligations
4.4.1 The Seller has received no notice of any breach of any applicable
statutory and bylaw requirements with respect to the Properties, and in
particular with the requirements as to fire precautions and under the Public
Health Acts, the Housing Acts, the Highway Acts, Offices, Shops and Railway
Premises Act 1963 and the Factory Acts.
4.4.2 To the best of Seller's knowledge, information and belief, there is
no unperformed obligation with respect to the Properties, performance of which
is necessary to comply with the requirements (whether formal or informal) of a
competent authority exercising statutory or delegated powers.
4.5 Adverse orders
4.5.1 To the best of Seller's knowledge, information and belief, there are
no compulsory purchase notices, orders or resolutions affecting the Properties
and there is nothing likely to lead to any being made.
4.5.2 To the best of Seller's knowledge, information and belief, there are
no closing, demolition or clearance orders, enforcement notices or stop notices
affecting the Properties and there is nothing likely to lead to any being made.
4.6 Condition of the Properties
4.6.1 To the best of Seller's knowledge, information and belief, the
buildings and other structures on or comprising the Properties are in good and
substantial repair and fit for the purpose for which they are used.
4.6.2 To the best of Seller's knowledge, information and belief, there are
no disputes with neighbouring owners with respect to boundary walls and fences,
or with respect to easements or rights over, or means of access to, the
Properties.
4.7 Insurance
4.7.1 Premiums payable in respect of insurance policies with respect to the
Properties have been duly paid and there is nothing which would vitiate or
permit the insurers to avoid the policies.
4.7.2 All relevant information with respect to insurance policies relating
to the Properties has been disclosed in writing to the Buyer or its solicitors
and is complete and accurate.
4.8 Leasehold Properties
4.8.1 The Seller has paid the rent and has received no notice of any breach
of the covenants on the part of the tenant and the conditions contained in the
leases of the Properties , and the last demand for rent (or receipt, if issued)
was unqualified.
4.8.2 All licences, consents and approvals required from the landlords and
any superior landlords under the leases of the Properties have been obtained,
and the Seller has received no notice of any breach of the covenants on the part
of the tenant contained in the licences, consents and approvals have been duly
performed.
4.8.3 There are no rent reviews in progress under the leases of the
Properties.
4.8.4 To the best of Seller's knowledge, information and belief, no
obligation necessary to comply with a notice given by or other requirement of
the landlord under any of the leases of the Properties is outstanding and
unperformed.
4.8.5 There is no obligation to reinstate any of the Properties by removing
or dismantling an alteration made by the Seller or a predecessor in title.
4.8.6 The Seller has not entered into an agreement with the landlord of any
of the Properties specifying circumstances in which it would be reasonable for
the landlord to withhold its consent to an assignment in accordance with section
19(1A) Landlord and Xxxxxx Xxx 0000.
SCHEDULE 4
List of restricted countries
Albania Malaysia
Algeria Malta
Argentina Mexico
Australia Moldova
Austria Monaco
Bangladesh Morocco
Belarus New Zealand
Belgium North Korea
Bosnia and Hertzogovina Norway
Brazil Pakistan
Brunei Philippines
Bulgaria Poland
Canada Portugal
China Romania
Croatia Russia
Czech Republic San Marino
Denmark Singapore
Egypt Slovakia
Estonia Slovenia
Finland South Africa
France South Korea
Germany Spain
Greece Sri Lanka
Hungary Sweden
Iceland Switzerland
India Thailand
Indonesia The Netherlands
Ireland Tunisia
Italy Turkey
Japan Ukraine
Latvia United Kingdom
Liechtenstein United States
Lithuania Yugoslavia
Luxembourg Zimbabwe
Executed as a deed by )
GSE SYSTEMS UK LIMITED )
acting by: )
Director
Director/Secretary
Executed as a deed by )
GSE SYSTEMS INC. )
acting by: )
Officer
Officer
Executed as a deed by )
GSE PROCESS SOLUTIONS INC. )
acting by: )
Officer
Officer
Executed as a deed by )
AVANTIUM TECHNOLOGIES UK LIMITED )
acting by: )
Director
Director/Secretary
Executed as a deed by )
AVANTIUM INTERNATIONAL BV )
acting by: )
Director
Director/Secretary
Xxxxxxxx Xxxxx Xxxxxx Xxxxxx Xxxxxx XX0X 0XX
Telephone x00 (0) 00 0000 0000 Fax x00 (0) 00 0000 0000
DATED 2001
GSE SYSTEMS UK LIMITED
GSE SYSTEMS INC. and GSE PROCESS SOLUTIONS INC.
AVANTIUM TECHNOLOGIES UK LIMITED
and
AVANTIUM INTERNATIONAL BV
AGREEMENT
for the sale and purchase of assets from
GSE Systems UK Limited
CONTENTS
1 Definitions and interpretation..............................................1
2 Agreement for sale..........................................................5
3 Consideration...............................................................6
4 Completion..................................................................6
5 Employees...................................................................7
6 Liabilities.................................................................10
7 Value added tax.............................................................11
8 Warranties by the Seller....................................................12
9 Restrictive agreement.......................................................12
10 Information................................................................14
11 Guarantee by the Guarantors................................................14
12 Guarantee by Avantium International........................................16
13 Announcements..............................................................17
14 Waiver.....................................................................17
15 Costs and taxation.........................................................18
16 Further assurance..........................................................18
17 Joint and several liability................................................18
18 Communications.............................................................19
19 Invalidity.................................................................20
20 Proper law.................................................................21
SCHEDULE 1 Employees..........................................................22
SCHEDULE 2 Plant and Equipment................................................23
SCHEDULE 3 Warranties.........................................................27
1 Employment..................................................................27
2 Assets......................................................................29
3 XXXXX Assets................................................................30
4 Properties..................................................................30
SCHEDULE 4 List of restricted countries.......................................34
