Exhibit 4.15
1
Dated 21 January 2003
THE SEVERAL PERSONS NAMED IN PART 1 OF SCHEDULE 1
and
XXXXX XXXXXXX XXXX
and
3i GROUP PLC
and
EBOOKERS PLC
SHARE PURCHASE AGREEMENT
relating to the sale and purchase
of the whole of the issued share capital of
Travelbag Holdings Limited
One Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone (00-00) 0000 0000
Facsimile (00-00) 0000 0000
2
Agreement for Purchase of Shares
This Agreement is made on 21 January 2003 between:
(1) THE SEVERAL PERSONS named in Part 1 of Schedule 1 (the "Vendors", which
expression shall include the legal personal representatives of any such
persons);
(2) XXXXX XXXXXXX XXXX of 0 Xxxxxxx Xxxxxxx, Xxxxxxxx Xxxxx, Xxxxx, Xxxxxxxxx
("PW");
(3) 3i GROUP PLC, a company incorporated in England and Wales (registered No.
01442830) whose registered office is at 00 Xxxxxxxx Xxxx, Xxxxxx XX0 0XX
("3i"); and
(4) EBOOKERS PLC, a company incorporated in England and Wales (registered No.
3818962) whose registered office is at 00 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X
0XX (the "Purchaser").
Whereas:
(A) The Vendors and 3i wish to sell the Shares (as defined below) and the
Purchaser wishes to purchase the Shares on and subject to the terms of
this Agreement.
(B) The Purchaser has offered all the Vendors and 3i the opportunity to
receive, as part of the consideration for the sale of their Shares,
ordinary shares in the capital of the Purchaser and this Agreement
reflects the extent to which the Vendors and 3i have elected to receive
such shares.
It is agreed as follows:
1 Interpretation
In this Agreement, unless the context otherwise requires, the
provisions in this Clause 1 apply:
1.1 Definitions
"3i Group" means 3i, any subsidiary of 3i and any company of which 3i
is a subsidiary and any entity or investment vehicle formed or
incorporated in any jurisdiction, including a partnership in which 3i
or any subsidiary of 3i has a majority economic interest or which is
managed by 3i or any subsidiary of 3i;
"ABTA" means Association of British Travel Agents;
"agreed terms" means, in relation to a document, such document in the
terms agreed between the parties and signed for identification by or on
behalf of the Purchaser's Solicitors and the Vendors' Solicitors with
such alterations as may be agreed in writing between the parties from
time to time for any reason including, without limitation, to take
account of any changes between the date of this Agreement and
Completion;
"ATOL" means an air transport operator's licence granted by the CAA:
"Audited Accounts" means the audited accounts of the Company and of
each of the Subsidiaries and the audited consolidated group accounts of
the Group for the financial period ended on the Balance Sheet Date;
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"A Ordinary Shares" means the 1,392,388 A shares of(pound)1.00 each in
the capital of the Company;
"B Ordinary Shares" means the 1,107,314 B shares of(pound)1.00 each in
the capital of the Company;
"Balance Sheet Date" means 31 October 2002;
"Business Day" means a day on which banks are open for business in
London (excluding Saturdays, Sundays and public holidays);
"CAA" means Civil Aviation Authority;
"Company" means Travelbag Holdings Limited, details of which are
contained in Part 3 of Schedule 1;
"CHAPS" means clearing houses automated payment systems;
"Completion" means the completion of the sale and purchase of the
Shares pursuant to Clause 6;
"Completion Amount" has the meaning given in Clause 3.1;
"Confidentiality Agreement" means the agreement dated 18 September 2002
between the Purchaser (1) and the Company (2), and the relevant
provisions of the offer letter dated 9 December 2002 between the
Purchaser (1) and the Company (2), (in the event of conflict the offer
letter will prevail);
"Consideration Shares" means such number of ordinary shares of 14p each
in the capital of the Purchaser to be allotted and issued by the
Purchaser credited as fully paid as consideration as is determined
pursuant to Clause 3;
"Covenantors" bears the meaning given to it in the Tax Deed of
Covenant;
"Deferred Completion Date" means the new date fixed for Completion
pursuant to Clause 6.4.1(ii);
"Deferred Shares" means 4,209,750 deferred shares of (pound)1.00 each
in the capital of the Company allotted in accordance with Clause 5.3;
"Disclosure Letter" means the letter of even date with this Agreement
from the Warrantors to the Purchaser disclosing:
(i) information constituting exceptions to the Warranties; and
(ii) details of other matters referred to in this Agreement;
"Document Index" means the index of documents attached to the
Disclosure Letter;
"Encumbrance" means any claim, charge, mortgage, security, lien,
option, equity, power of sale, hypothecation or other third party
rights, retention of title, right of pre-emption, right of first
refusal or security interest of any kind;
"EVBG" means Evolution Xxxxxx Xxxxxxx Limited;
"Facility Agreement" means the facilities agreement of even date with
this Agreement between Barclays Bank PLC (1) and the Purchaser (2);
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"Group" or "Group Companies" means the Company and the Subsidiaries and
"Group Company" means any one of them;
"IATA" means International Air Transport Association;
"Information Technology" means all computer systems, communications
systems, software and hardware owned, used or licensed by or to any
Group Company;
"Intellectual Property" means trade marks, service marks, trade names,
domain names, logos, get-up, patents, inventions, registered and
unregistered design rights, copyrights, semi-conductor topography
rights, database rights and all other similar rights in any part of the
world (including Know-how) including, where such rights are obtained or
enhanced by registration, any registration of such rights and
applications and rights to apply for such registrations;
"Issue Price" means the average of the closing bid quotations for the
ordinary shares of 14p each in the capital of the Purchaser as shown by
the London Stock Exchange Daily Official List for the five Business
Days immediately preceding Completion;
"Know-how" means confidential industrial and commercial information
and techniques in any form including without limitation drawings,
formulae, test results, reports, project reports and testing
procedures, instruction and training manuals, tables of operating
conditions, market forecasts, lists and particulars of customers and
suppliers;
"London Stock Exchange" means London Stock Exchange plc;
"Losses" means all losses, liabilities, costs (including, without
limitation, legal costs), charges, expenses, actions, proceedings,
claims and demands;
"Management Accounts" means the unaudited management accounts relating
to each Group Company and to the Group for any period or drawn up as at
any date since the Balance Sheet Date (the "Relevant Management
Accounts Date");
"Official List" means the official list maintained by the UK Listing
Authority;
"Ordinary Shares" means the 15,425,729 Ordinary Shares of (pound)1.00
each, which, together with the A Ordinary Shares and the B Ordinary
Shares comprise the whole of the issued ordinary share capital of the
Company;
"Payment Account Details" means, in relation to any payment to be made
under or pursuant to this Agreement, the name, account number, sort
code, account location and other details specified by the payee and
necessary to effect payment (whether by cheque, banker's draft,
telegraphic or other electronic means of transfer) to the payee;
"Placing Agreement" means the agreement of even date with this
Agreement between EVBG (1) and the Purchaser (2) for the placing of the
Placing Shares pursuant to Clause 3.2;
"Placing Condition" means the conditions set out in sub-clauses 4.1.2
and 4.1.5;
"Placing Shares" means such number of ordinary shares of 14p each in
the capital of the Purchaser to be issued and placed by the Purchaser
credited as fully paid pursuant to Clauses 3.2, 3.4 and 3.6 as will,
under the Placing Agreement, give rise to net proceeds as specified in
Clause 3.2;
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"POH" means Port of Hercules Trustees Limited as trustee for the Xxxxx
Xxxx No 2 Settlement;
"Preference Shares" means the 1,250,000 preference shares of
(pound)1.00 each being the whole of the issued preference share capital
of the Company;
"Properties" means the freehold and leasehold properties brief details
of which are set out in Parts 1 and 2 of Schedule 5 and includes each
and every part of them and "Property" means any one of them;
"Purchaser's Group" means the Purchaser and any subsidiary of the
Purchaser;
"Purchaser's Solicitors" means Linklaters of Xxx Xxxx Xxxxxx, Xxxxxx
XX0X 0XX;
"Senior Employee" means an employee of a Group Company who earns a
salary in excess of(pound)30,000 per annum;
"Shares" means the Preference Shares, the Ordinary Shares, the A
Ordinary Shares, the B Ordinary Shares and the Deferred Shares;
"Subsidiaries" means the subsidiaries of the Company details of which
are contained in Part 4 of Schedule 1;
"Taxation" and "Transaction" bear the meanings respectively given to
them in the Tax Deed of Covenant;
"Tax Deed of Covenant" means the deed of covenant against Taxation in
the agreed terms to be entered into at Completion;
"UK Listing Authority" means the Financial Services Authority in its
capacity as competent authority for listing under the Financial
Services and Markets Xxx 0000;
"Vendors' Schemes" means the Allied Xxxxxx Executive Pension Scheme
(Plan Number P0024-077), the Legal & General Stakeholder Pension Scheme
(Scheme Number GF38503001), the Self Invested Personal Pensions in
respect of Xxxxxx Bridge, Xxxxx Xxxxxx and Xxxxx Xxxx, The Bridge the
World Travel Services Executive Pension Scheme (date of commencement 31
July 2000) and The Bridge the World Group Personal Pension Scheme
(Norwich Union Reference Number P3217461A) (which is Stakeholder
Compliant) in force at the date of this Agreement details of which are
set out in the documents in the agreed terms;
"Vendors' Solicitors" means Lamport Bassitt of 00 Xxx Xxxxxx,
Xxxxxxxxxxx XX00 0XX;
"Warranties" means the warranties and representations set out in
Schedule 3 and "Warranty" means any one of them;
"Warrantors" means POH and Xxxxxx Bridge (each a "Warrantor");
1.2 Subordinate Legislation
References to a statutory provision include any subordinate legislation
made from time to time under that provision;
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1.3 Awareness
Where any Warranty or other provision of this Agreement is qualified by
the phrase "so far as the Warrantors are aware" or a similar phrase,
such phrase shall imply a requirement that the Warrantors have made
such enquiries as are reasonable of the Vendors, Xxxxx Xxxxx, Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxx, Xxxxxx Xxxxx and Xxxx Xxxxx;
1.4 Modification etc. of Statutes
References to a statute or statutory provision include that statute or
provision as from time to time modified, re-enacted or consolidated
whether before or after the date of this Agreement so far as such
modification, re-enactment or consolidation applies or is capable of
applying to any transactions entered into in accordance with this
Agreement prior to Completion and (so far as liability thereunder may
exist or can arise) shall include also any past statute or statutory
provision (as from time to time modified, re-enacted or consolidated)
which such statute or provision has directly or indirectly replaced
except to the extent that such modification, re-enactment or
consolidation would increase, alter or extend the liability of the
Vendors, or of the Warrantors under the Warranties, or the Covenantors
under the Tax Deed of Covenant;
1.5 Connected Persons
A person shall be deemed to be connected with another if that person is
connected with such other within the meaning of Section 839 of the
Income and Corporation Taxes Xxx 0000;
1.6 Accounts
Any reference to "accounts" shall include the directors' and auditors'
reports, relevant balance sheets and profit and loss accounts and
related notes together with all documents which are or would be
required by law to be annexed to the accounts of the company concerned
to be laid before that company in general meeting in respect of the
accounting reference period in question;
1.7 Companies Xxx 0000
The words "holding company" and "subsidiary" shall have the same
meanings in this Agreement as their respective definitions in the
Companies Xxx 0000;
1.8 Interpretation Xxx 0000
The Interpretation Act 1978 shall apply to this Agreement in the same
way as it applies to an enactment;
1.9 SSAPs and FRSs
A reference to an SSAP means a statement of standard accounting
practice as adopted by the Accounting Standards Board and published by
the Institute of Chartered Accountants of England and Wales and a
reference to an FRS means a financial reporting standard developed and
issued by the Accounting Standards Board and which may, where directed
by the Accounting Standards Board, supersede an SSAP;
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1.10 Clauses, Schedules etc.
References to this Agreement include any Recitals and Schedules to it
and references to Clauses and Schedules are to Clauses of and Schedules
to this Agreement. References to paragraphs are to paragraphs of the
Schedules;
1.11 Information
Any reference to books, records or other information means books,
records or other information in any form including paper,
electronically stored data, magnetic media, film and microfilm; and
1.12 Headings
Headings shall be ignored in construing this Agreement.
2 Agreement to Sell the Shares
2.1 Sale of Shares
The Vendors (each severally as to those of the Shares specified against
his name in Part 1 of Schedule 1) agree to sell or procure to be sold
and 3i (as to the Shares specified against its name in Part 2 of
Schedule 1) agrees to sell and the Purchaser agrees to purchase the
Shares free from all Encumbrances and together with all rights and
advantages attaching to them which are exercisable after Completion.
2.2 Rights of Pre-emption
The Vendors and 3i hereby waive irrevocably any and all rights of
pre-emption over the Shares conferred either by the Articles of
Association or other equivalent document of the Company or in any other
way, and agree to the transfer of the shares in accordance with Article
13.2 of the Articles of Association.
3 Consideration
3.1 Amount
The consideration for the purchase of the Shares shall be nil for each
Deferred Share and in respect of the Preference Shares and the Ordinary
Shares:
3.1.1 the cash sum of (pound)1,252,876 for the Preference Shares and
(pound)51,127,930.25 for the Ordinary Shares making an aggregate
cash consideration of (pound)52,380,806.25 consisting of:
(i) (pound)47,351,585.25 (the "Completion Amount") which shall be
paid on Completion;
(ii)(pound)2,029,221 in relation to which Schedule 7 shall apply;
(iii) (pound)3,000,000 which shall be paid on the day falling 12
months after Completion (or if that day is not a Business Day,
the immediately following Business Day) subject to the provisions
of Clause 7.5; and
6
3.1.2 the allotment of Consideration Shares in accordance with Clause
3.3.
Schedule 1 shows the division of the payments referred to in Clauses
3.1.1(i), (ii) and (iii) among the Vendors.
3.2 Placing of Placing Shares
(pound) 40,712,274.48 of the Completion Amount shall be satisfied by
the allotment and issue of the Placing Shares to, or to persons
nominated by, EVBG on terms that the net cash proceeds of the placing
of such shares of (pound)40,712,274.48 shall be paid to the Vendors and
3i in accordance with Clause 3.7 and divided among the Vendors and 3i
as set out in Column (4) of Parts 1 and 2 of Schedule 1. The Vendors
and 3i agree with the Purchaser to execute all such documents as the
Purchaser may reasonably require for the purpose of or in connection
with such placing and hereby severally appoint any director of the
Purchaser as their attorney to execute any such documents in their
names and on their behalf.
3.3 Consideration Shares
The Purchaser shall allot, to 3i and to each of the Vendors, such
number of Consideration Shares as shall have a value at the Issue Price
nearest to but not exceeding the amounts set out against their
respective names in Column (5) of Parts 1 and 2 of Schedule 1.
3.4 Application for admission to listing and admission to trading
The Purchaser shall at its own expense procure application to be made
to the UK Listing Authority for the Consideration Shares and the
Placing Shares to be admitted to the Official List and to the London
Stock Exchange for the Consideration Shares and the Placing Shares to
be admitted to trading by the London Stock Exchange and shall use all
reasonable endeavours to ensure that such admissions shall become
effective by the making of an announcement in accordance with paragraph
7.1 of the Listing Rules of the UK Listing Authority and paragraph 2.1
of Part 2 of the Admission and Disclosure Standards of the London Stock
Exchange.
3.5 Restriction on disposal of Consideration Shares
Each of the Vendors hereby severally undertakes with the Purchaser that
he will not for a period of six months from the date of Completion
without the previous consent in writing of the Purchaser dispose or
agree to dispose of any of the Consideration Shares issued to him or
any interest (as defined for the purpose of Part VI of the Companies
Act 1985) therein. This Clause shall not, however, prohibit disposals
by POH of Consideration Shares to raise up to (pound)2,029,221 nor of
any Consideration Shares by any Vendor in the event of a general offer
being made for the share capital of the Purchaser.
3.6 Ranking of Consideration Shares and the Placing Shares
The Consideration Shares and the Placing Shares shall rank in all
respects pari passu with the existing issued fully paid ordinary shares
in the capital of the Purchaser.
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3.7 Payment on Completion
Payment of such part of the consideration as may fall to be paid in
cash and the proceeds of the placing (if any) shall be made not later
than 3.00 p.m. on the date of Completion to the Vendors' Solicitors who
are authorised to receive the same on behalf of 3i and the Vendors and
payment to whom shall be a good discharge to the Purchaser.
3.8 Method of Payment
Wherever in this Agreement provision is made for the payment by one
party to another, such payment shall be effected by crediting for same
day value the account specified in the Payment Account Details of the
party entitled to the payment by way of CHAPS on or before the due date
for payment unless the payee by notice to the payer, not later than
three Business Days prior to the due date for payment, elects to be
paid by banker's draft drawn on any international bank reasonably
acceptable to the payer and having an office in London. Payment of such
sum shall be a good discharge to the payer of its obligation to make
such payment and the payer shall not be obliged to see to the
application of the consideration as between 3i and the relevant Vendors
(in the case of a payment by the Purchaser).
3.9 Reduction of Consideration
If any payment is made by the Vendors or 3i or the Warrantors to the
Purchaser in respect of any claim against the Vendors or 3i or the
Warrantors for any breach of this Agreement (or any agreement entered
into pursuant to this Agreement) or pursuant to any indemnity hereunder
or pursuant to the Tax Deed of Covenant, the payment shall be by way of
adjustment of the consideration paid by the Purchaser and the
consideration shall be deemed to have been reduced by the amount of
such payment.
4 Conditions
4.1 Conditions Precedent
The agreement to sell and purchase the Shares contained in Clause 2.1
is conditional upon (and accordingly beneficial ownership in the Shares
will not pass until) satisfaction of the following conditions, or their
satisfaction subject only to Completion of this Agreement:
4.1.1 the passing at a general meeting of the Purchaser of a
resolution to approve the acquisition of the Shares and all
necessary resolutions to increase the authorised share capital of
the Purchaser and to authorise the allotment and issue of the
Consideration Shares and the Placing Shares in the agreed terms
or without material amendments thereto;
4.1.2 all the conditions precedent in the Placing Agreement having
been fulfilled or (if capable of waiver) waived and such
agreement not having been terminated in accordance with its
terms;
4.1.3 all the conditions precedent (to the funding of loans required
for acquiring the Shares) in the Facility Agreement having been
fulfilled or (if capable of waiver) waived and such agreement not
having been terminated in accordance with its terms;
8
4.1.4 the licences, authorisations, orders, grants, confirmations,
permissions, registrations and other approvals necessary or
desirable for or in respect of the proposed acquisition of the
Group by the Purchaser having been obtained from ABTA, IATA and
CAA on terms satisfactory to the Purchaser and such licences,
authorisations, orders, grants, confirmations, permissions,
registrations and other approvals remaining in full force and
effect;
4.1.5 the admission of the Consideration Shares to the Official List
becoming effective in accordance with paragraph 7.1 of the
Listing Rules of the United Kingdom Listing Authority and
admission of the Consideration Shares to trading by the London
Stock Exchange becoming effective;
4.1.6 clearance being obtained under Section 707 of the Income &
Corporation Taxes Xxx 0000 and under Section 138 of the Taxation
of Capital Gains Xxx 0000 ("TCGA") in respect of the transactions
contemplated by this Agreement.
4.2 Responsibility for Satisfaction
4.2.1 The Purchaser shall use all reasonable endeavours to ensure the
satisfaction of the conditions set out in Clauses 4.1.1 to 4.1.5
and the Vendors shall use all reasonable endeavours to ensure
satisfaction of the conditions set out in Clause 4.1.6.
4.2.2 Without prejudice to Clause 4.2.1, the Vendors and the Purchaser
agree that all requests and enquiries from any government,
governmental, supranational or trade agency, court or other
regulatory body shall be dealt with, at the cost of the
Purchaser, by the Vendors and the Purchaser in consultation with
each other and the Vendors and the Purchaser shall promptly
co-operate with and shall use reasonable endeavours to provide
all necessary information and assistance reasonably required by
such government, agency, court or body upon being requested to do
so by the other.
4.3 Non-Satisfaction/Waiver
4.3.1 The Purchaser and POH on behalf of the Vendors and 3i may at any
time by agreement waive in whole or in part and conditionally or
unconditionally the conditions set out in Clause 4.1.
4.3.2 The Purchaser shall give notice to the Vendors and 3i of the
satisfaction of the relevant conditions within two Business Days
of becoming aware of the same. If the conditions in Clause 4.1
are not satisfied or waivedon or before 17 February 2003 or such
other date as the parties may agree the Purchaser or POH on
behalf of the Vendors and 3i may terminate this Agreement (other
than Clauses 1, 11, 11.1 to 11.8 and 11.11 to 11.17) and no party
shall have any claim against any other under it, save for any
claim arising from breach of any undertaking contained in Clause
4.2.
4.4 Duty to inform Vendors
The Purchaser undertakes in the period to Completion immediately to
advise the Vendors' Solicitors and 3i of (i) the satisfaction or waiver
of any of the conditions, (ii) any matters which suggest any of the
conditions are unlikely to be satisfied before 17 February 2003, and
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(iii) such other matters concerning the satisfaction of the conditions
as may be reasonably requested by or on behalf of the Vendors and for
3i.
5 Action Pending Completion
5.1 Vendors' General Obligations
The Vendors shall procure that, pending Completion:
5.1.1 each Group Company will carry on business only in the ordinary
and usual course, save insofar as agreed in writing by the
Purchaser; and
5.1.2 the Purchaser and its agents will, upon reasonable notice, be
allowed access to, and to take copies of, the books and records
of each Group Company including, without limitation, the
statutory books, minute books, leases, licences, contracts,
details of receivables, Intellectual Property, tax records,
supplier lists and customer lists in the possession or control of
any Group Company; and
5.1.3 such representatives and advisers as the Purchaser requests may
be designated to work with the Vendors with regard to the
management and operations of the Group Companies. The Vendors
will consult, and will cause the Group Companies to consult, with
such representatives and advisers with respect to any action
which may materially affect the business of the Group taken as a
whole. The Vendors will provide, and will cause the Group to
provide to such representatives and advisers such information as
they may reasonably request for this purpose; and
5.1.4 each Group Company shall take all reasonable steps to preserve
its assets and, in particular, will maintain in force all
insurance policies normally kept in force; and
5.1.5 each Group Company shall take all reasonable steps to preserve
the validity of its Intellectual Property.
5.2 Restrictions on the Vendors
Without prejudice to the generality of Clause 5.1, the Vendors shall
collaborate fully with the Purchaser in relation to all material
matters concerning the running of the Group between the date of this
Agreement and Completion and during that period shall procure that each
Group Company shall not except as may be required to give effect to and
comply with this Agreement without the prior written consent of the
Purchaser such agreement not to be unreasonably withheld or delayed:
5.2.1 enter into any agreement or incur any commitment involving any
capital expenditure in excess of(pound)15,000 per item
and(pound)50,000 in aggregate, in each case exclusive of VAT;
5.2.2 enter into or amend any contract or incur any commitment which
is not capable of being terminated without compensation at any
time with three months' notice or less or which is not in the
ordinary and usual course of business or which involves or may
involve total annual expenditure in excess of (pound)15,000, in
each case exclusive of VAT;
5.2.3 terminate the employment of any Senior Employee (whether with or
without notice) without the prior written consent of the
Purchaser;
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5.2.4 in relation to any Property:
(i) apply for any planning permission or implement any planning
permission already obtained but not implemented;
(ii) carry out any material structural alteration or addition to, or
materially effect any change of use of, such Property;
(iii) terminate or serve any notice to terminate, surrender or accept
any surrender of or waive the terms of any lease, tenancy or
licence which is material in the context of the relevant Group
Company;
(iv) agree any new rent or fee payable under any lease, tenancy or
licence which is material in the context of the relevant Group
Company;
(v) enter into or vary any agreement, lease, tenancy, licence or
other commitment which is material in the context of the relevant
Group Company;
(vi) sell, convey, transfer, assign or charge any Property or grant
any rights or easements over any Property or enter into any
covenants affecting any Property or agree to do any of the
foregoing;
5.2.5 incur any additional borrowings or incur any other indebtedness
otherwise than in the ordinary and usual course of business;
5.2.6 save as required by law, make any amendment to the terms and
conditions of employment (including, without limitation,
remuneration, pension entitlements and other benefits) of any
Senior Employee (other than minor increases which the Vendors
shall notify to the Purchaser as soon as reasonably possible),
provide or agree to provide any gratuitous payment or benefit
to any such person or any of their dependants, or dismiss any
Senior Employee or engage or appoint any additional Senior
Employee;
5.2.7 introduce or provide any new pension arrangements in relation to any
employees of the Group Companies;
5.2.8 discontinue or amend the Vendors' Schemes to any material
extent or commence to wind them up or cause them to cease to
admit new members or communicate to any employee any material
plan, proposal or intention to amend, wind up, terminate or
exercise any discretion in relation to the Vendors' Schemes;
5.2.9 pay any benefits under the Vendors' Schemes other than in
accordance with the terms of the documents governing such
schemes and not under any discretionary power;
5.2.10 acquire or agree to acquire or dispose of or agree to dispose
of any material asset or enter into or amend any material
contract or arrangement, in each case, involving consideration,
expenditure or liabilities in excess of (pound)15,000,
exclusive of VAT;
5.2.11 take steps to procure payment by any debtor generally in
advance of the date on which book and other debts are usually
payable in accordance with the standard terms of business of
any Group Company or (if different) the period extended to any
particular debtor in which to make payment;
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5.2.12 delay making payment to any trade creditors generally beyond
the date on which payment of the relevant trade debt should be
paid in accordance with credit period authorised by the
relevant creditors (or (if different) the period extended by
creditors in which to make payment);
5.2.13 amend, to any material extent, any of the terms on which goods,
facilities or services are supplied, such supplies being
material in the context of the relevant Group Company except
where required to do so in order to comply with any applicable
legal or regulatory requirement;
5.2.14 enter into any guarantee, indemnity or other agreement to
secure any obligation of a third party or create any
Encumbrance over any of its assets or undertaking;
5.2.15 amend any insurance contract, fail to notify any insurance
claim in accordance with the provisions of the relevant policy
or settle any such claim below the amount claimed;
5.2.16 allot, issue, redeem or repurchase any share or loan capital (or option
to subscribe for the same) of any Group Company;
5.2.17 acquire or agree to acquire any share, shares or other interest in any
company, partnership or other venture;
5.2.18 declare, make or pay any dividend or other distribution to
shareholders; or
5.2.19 make any change to its accounting practices or policies or amend its
memorandum or articles of association.
Provided that the consent of the Purchaser will for the purposes of this
clause have been deemed to have been given to any of the matters specified in
Appendix C to the Disclosure Letter. Where practicable, the Vendors will procure
that the relevant Group Company consults in advance with the individual
responsible for the relevant area at the Purchaser before undertaking any such
matters. The relevant individuals are:
IT Xxxx Xxxx
Commercial Xxx Xxxxxx
Telecoms Xxxx Xxxxxxx
Property Xxxxxx Xxxxxxxxx
Any other matter Xxxxx X'Xxxxx
5.3 Deferred Shares
Prior to Completion:
5.3.1 The Vendors shall procure the increase of the authorised share
capital of the Company to by the creation of 4,209,750Deferred
Shares, such Deferred Shares having the rights set out in the
Articles of Association of the Company current at the date of
this Agreement and shall procure the allotment to POH of
4,182,471 Deferred Shares issued as unpaid and to Xxxxxx Bridge
of 27,279 Deferred Shares issued as unpaid.
12
5.3.2 POH shall subscribe for 4,182,471 Deferred Shares and shall
procure that on Completion they are fully paid.
5.3.3 Xxxxxx Bridge shall subscribe for 27,279 Deferred Shares and
shall procure that on Completion they are fully paid.
5.3.4 The Vendors shall procure all necessary consents, returns or
waivers and do all other acts or things as may be necessary to
comply with the provisions of sub-clauses 5.3.1, 5.3.2 and 5.3.3.
5.3.5 3i agrees to vote by written resolution in favour of the
resolutions required to implement the preceding sub-clauses of
this Clause 5.3.
6 Completion
6.1 Completion in Escrow
6.1.1 As soon as practicable (and in any event within two Business
Days) following satisfaction or waiver of the conditions set out
in Clause 4.1 (other than the Placing Condition):
(i) the Vendors shall procure that their obligations specified in
paragraph 1 of Schedule 2 are fulfilled;
(ii) the Purchaser shall procure that its obligations specified in
paragraph 2 of Schedule 2 are fulfilled;
(iii) 3i shall procure that its obligations specified in paragraph 3
of Schedule 2 are fulfilled.
6.1.2 The documents which the Vendors and 3i are obliged to deliver or
make available pursuant to Schedule 2 shall be undated and shall
be held by the Purchaser's Solicitors in escrow, to be released
to the Purchaser upon satisfaction of the Placing Condition.
6.1.3 The document[s] which the Purchaser is obliged to deliver or
make available pursuant to Schedule 2 shall be undated and shall
be held by the Purchaser's Solicitors in escrow, to be released
to the Vendors and 3i upon satisfaction of the Placing Condition.
6.1.4 If the Placing Condition has not been satisfied or waived on the
earlier of 17 February 2003 or within 24 hours of the documents
being placed in escrow pursuant to Clauses 6.1.2 and 6.1.3 then
any party may terminate this Agreement without prejudice to any
rights, claims, remedy or relief of any other party.
6.2 Date and Place of Completion
Completion shall take place at the offices of the Purchaser's
Solicitors at 7 a.m. on 6 February 2003 or (if later) as soon as
practicable following satisfaction or waiver of all the conditions set
out in Clause 4.1.
6.3 Completion
On Completion:
13
6.3.1 the Purchaser shall pay such part of the consideration as falls
to be paid in cash and procure payment of the proceeds of the
placing of the Placing Shares in the manner specified in Clause
3.2 and deliver definitive share certificates in respect of the
Consideration Shares;
6.3.2 the Vendors shall deliver or make available to the Purchaser the
statutory books of the Group Companies; and
6.3.3 the documents held in escrow pursuant to Clause 6.1 shall be
released by the Purchaser's Solicitors to the parties entitled
thereto, shall (where applicable) be dated as of Completion by
the Purchaser's Solicitors and shall take effect forthwith.
6.4 Right to Terminate
6.4.1 If the foregoing provisions of this Clause are not fully
complied with by the Vendors and 3i or the Purchaser by or on the
date set for Completion, the Purchaser, in the case of
non-compliance by the Vendors or 3i, or POH on behalf of the
Vendors and 3i, in the case of non-compliance by the Purchaser,
shall be entitled (in addition to and without prejudice to all
other rights or remedies available to the terminating party
including the right to claim damages) by written notice to the
other party/ies served on such date:
(i) to effect Completion so far as practicable having regard to the
defaults which have occurred; or
(ii) to fix a new date for Completion (not being more than 20 Business
Days after the agreed date for Completion) (the "Deferred
Completion Date") in which case the foregoing provisions of this
Clause 6.4 shall apply to Completion as so deferred but provided
such deferral may only occur once.
6.4.2 In the event that the foregoing provisions of this Clause are
not fully complied with by the Vendors and 3i or the Purchaser by
or on the Deferred Completion Date, or Completion so far as
practicable having regard to the defaults which have occurred has
not occurred by the Deferred Completion Date, the Purchaser, in
the case of non-compliance by the Vendors or 3i, or POH on behalf
of the Vendors and 3i, in the case of non-compliance by the
Purchaser, shall be entitled (in addition to and without
prejudice to all other rights or remedies available to the
terminating party including the right to claim damages) by
written notice to the other party/ies served on such date, to
elect to terminate this Agreement (other than Clauses 1, 10, 11.1
to 11.8 and 11.11 to 11.17) without liability on the part of the
terminating party or parties.
7 Warranties
7.1 Incorporation of Schedule 3
7.1.1 Subject to Clause 7.1.3, the Warrantors jointly and severally
warrant to the Purchaser and its successors in title in the terms
set out in Schedule 3.
7.1.2 Subject to Clause 7.1.3, each Vendor severally warrants to the
Purchaser and its successors in title in the terms set out in
paragraphs 1.2 and 1.4 of Schedule 3 in respect only of its
capacity and title to the Shares to be sold by it.
14
7.1.3 The Warranties are in each case subject only to:
(i) any matter which is fairly and fully disclosed in the Disclosure
Letter and any matter expressly provided for under the terms of
this Agreement;
(ii) any matter or thing hereafter done or omitted to be done pursuant
to this Agreement or otherwise at the request in writing or with
the approval in writing of the Purchaser; and
(iii) any matter or thing which is known to the Purchaser at
Completion.
7.1.4 3i warrants to the Purchaser that it is entitled to sell and
transfer to the Purchaser the full legal and beneficial ownership
of the Shares set opposite its name in Part 2 of Schedule 1 on
the terms of this Agreement without the consent of any third
party.
7.2 Updating to Completion
The Warrantors undertake (but without personal liability) to and with
the Purchaser and its successors in title that if after the signing of
this Agreement and before Completion to their personal knowledge (but
without any obligation to make enquiries or investigations) any event
shall occur or matter shall arise which results or may result in any of
the Warranties being unfulfilled, untrue, misleading or incorrect in
any material respect at Completion the Warrantors shall immediately
notify the Purchaser in writing fully thereof prior to Completion. The
Vendors (at their own cost) shall then make any investigation
concerning the event or matter which the Purchaser may reasonably
require.
7.3 Limitation of Liability
The provisions of Schedule 4 shall apply.
7.4 Effect of Completion
The Warranties and all other provisions of this Agreement and the Tax
Deed of Covenant insofar as the same shall not have been performed at
Completion shall not be extinguished or affected by Completion, or by
any other event or matter whatsoever (including, without limitation,
any satisfaction and/or waiver of any condition contained in Clause
4.1), except by a specific and duly authorised written waiver or
release by the Purchaser.
7.5 Right of Set-Off
In the event that the Purchaser has a claim against the Vendors or 3i
and/or the Warrantors for any breach of this Agreement (or any
agreement entered into pursuant to this Agreement) or pursuant to any
indemnity hereunder or pursuant to the Tax Deed of Covenant, the
Vendors, 3i and the Warrantors agree that the amount of that claim may
only be set off against the defaulting party's proportion of the
balance of (pound)3,000,000 to be paid on the day falling 12 months
after Completion in accordance with Clause 3.1.1 (which shall otherwise
be paid without deduction, set off, cross claim of whatsoever nature
and of any amount) (i) in the event of fraud, (ii) to the extent that
any of the Vendors or 3i have agreed any amount so due to the Purchaser
and only to the extent of the amount due to such person who has so
agreed, or (iii) the amount of such claim is due under the terms of a
judgment of a Court in England against the person against whom such
set-off is enforced and such judgment is not and could not be the
subject of an appeal. This right of set-off shall not entitle the
15
Purchaser to withhold from a Vendor any amount for which that Vendor is
not personally liable.
7.6 Right of Termination
If prior to Completion it shall be found that any of the Warranties
was, when given, or will be or would be, at Completion (as if they had
been given again at Completion) not complied with in any material
respect or otherwise untrue or misleading in any material respect the
Purchaser shall be entitled by notice in writing to the Vendors and 3i
to terminate this Agreement (other than Clauses 1, 10, 11.1 to 11.8 and
11.11 to 11.17), provided that if any breach of the Warranties is
capable of remedy and within 48 hours of receiving notice of the breach
is remedied by the Vendors so that the Group is in no materially worse
position than it would have been had there been no breach, then the
Purchaser shall not be entitled to terminate this Agreement. The
termination of this Agreement pursuant to this Clause shall not give
rise to any right to damages, compensation or other relief of
whatsoever nature. If having become aware of such a breach of the
Warranties or of any other matter disclosed pursuant to Clause 7.2, the
Purchaser elects to proceed to Completion, the Purchaser shall be
deemed to have waived any claim in respect of a breach of Warranties in
respect of such matters.
7.7 Waiver
Save in the case of fraud, the Vendors and the Warrantors severally
undertake to the Purchaser not to make or pursue any claim against any
Group Company or its respective officers, employees or agents in
connection with assisting the Vendors and the Warrantors in giving the
Warranties, preparing the Disclosure Letter and/or entering into this
Agreement and the documents entered into pursuant to this Agreement.
8 Restrictions
8.1 Restrictions
The Restricted Employees further severally undertake with the Purchaser
and its successors in title as trustee for itself and the Group
Companies that the Restricted Employees will not in any Relevant
Capacity during the Restricted Period:
8.1.1 directly or indirectly carry on within the United Kingdom or
Australia any business (whether carried on under the names
"Travelbag", "Bridge The World", "Adventures" or any names likely
to be confused therewith or otherwise) which is of the same or
similar type to the business as now carried on by any Group
Company and which is or is likely to be in competition with the
business of any Group Company as now carried on nor be concerned
or interested in any such business; or
8.1.2 induce or seek to induce any Senior Employee to become employed
whether as employee, consultant or otherwise by any of the
Vendors or the Warrantors or any subsidiary undertaking or fellow
subsidiary undertaking or holding company of any Vendor or
Warrantor whether or not such Senior Employee would thereby
commit any breach of his contract of service.
16
8.2 Exceptions
The restrictions in Clause 8.1 shall not operate to prohibit any of the
Restricted Employees from:
8.2.1 carrying on or being engaged in any business which is of the
same or similar type to the business as now carried on by any
Group Company after such time as the Purchaser ceases to carry on
or be engaged in or economically interested in any such business;
8.2.2 holding or being interested in up to 5 per cent of the
outstanding issued share capital of a company listed on any
recognised stock exchange
8.2.3 fulfilling any obligation pursuant to this Agreement and any
agreement to be entered in to pursuant to this Agreement;
8.2.4 carrying on or being engaged or economically interested in a
Permitted Activity.
8.3 Reasonableness of Restrictions
Each of the Restricted Employees confirms that it has received
independent legal advice relating to all the matters provided for in
this Agreement, including the provisions of this Clause. The Restricted
Employees agree that they consider that the restrictions contained in
this Clause are no greater than is reasonable and necessary for the
protection of the interest of the Purchaser but if any such restriction
shall be held to be void but would be valid if deleted in part or
reduced in application, such restriction shall apply with such deletion
or modification as may be necessary to make it valid and enforceable.
8.4 Interpretation
The following terms shall have the following meanings respectively in
this Clause 8:
8.4.1 "Permitted Activity" means any business (not being part of the
business of the Group Companies) which at the date of this
Agreement the Restricted Employees carry on or are engaged in.
8.4.2 "Relevant Capacity" means for its or his own account or for that
of any person, firm or company (other than the Purchaser and the
Group Companies) or in any other manner whether through the
medium of any company controlled by it or him (for which purpose
there shall be aggregated with its or his shareholding or ability
to exercise control the shares held or control exercised by any
person connected with the Restricted Employees) or as principal,
partner, director, employee, consultant or agent.
8.4.3 "Restricted Employee" means Xxxxx Xxxxxxx Xxxx, Xxxxxx Bridge
and Xxxxxxx Xxxxxx.
8.4.4 "Restricted Period" means two years commencing on Completion
save that the period of one year only from Completion shall apply
to Xxxxxxx Xxxxxx in the event that he is dismissed from
employment with the Group for any reason other than gross
misconduct.
17
9 Pensions
The Warrantors shall indemnify and keep indemnified the Purchaser (for
itself and as agent and trustee for the Group Companies) on an after
tax basis from and against all claims, awards, orders, damages,
demands, fines, judgments, penalties, expenses, costs and liability
whatsoever incurred before, on or after Completion by the Purchaser or
the Group Companies in relation to the Bridge the World Travel Services
Executive Scheme.
10 Whole Agreement and Remedies
10.1 Whole Agreement
This Agreement contains the whole agreement between the parties
relating to the subject matter of this Agreement at the date hereof to
the exclusion of any terms implied by law which may be excluded by
contract and supersedes any previous written or oral agreement between
the parties in relation to the matters dealt with in this Agreement.
10.2 Acknowledgement
The Purchaser acknowledges that it has not been induced to enter into
this Agreement by any representation, warranty or undertaking not
expressly incorporated into it.
10.3 Remedies
So far as permitted by law and except in the case of fraud, each party
agrees and acknowledges that its only right and remedy in relation to
any representation, warranty or undertaking made or given in connection
with this Agreement shall be for breach of the terms of this Agreement
to the exclusion of all other rights and remedies (including those in
tort or arising under statute).
10.4 Reasonableness of this Clause
Each party to this Agreement agrees, having considered the terms of
this Clause and the Agreement as a whole, that the provisions of this
Clause are fair and reasonable.
10.5 Interpretation
In Clauses 10.1 to 10.4 "this Agreement" includes the Disclosure
Letter, the Confidentiality Agreement and all documents entered into
pursuant to this Agreement or otherwise contemplated by the terms of
this Agreement.
11 Other Provisions
11.1 Vendors' and Warrantors' Liability
Except where provision is specifically made to the contrary, the
liability of each of the Vendors and the Warrantors under or pursuant
to any of the provisions of this Agreement shall be joint and several.
Any liability to the Purchaser under this Agreement may in whole or in
part be released, compounded or compromised or time or indulgence given
18
by the Purchaser in its absolute discretion as regards any of the
Vendors or the Warrantors under such liability without in any way
prejudicing or affecting its rights against any other or others of the
Vendors or the Warrantors under the same or a like liability whether
joint and several or otherwise.
11.2 Announcements
No announcement or circular in connection with the existence or the
subject matter of this Agreement shall be made or issued by or on
behalf of the Vendors, 3i or the Purchaser without the prior written
approval of the Vendors, 3i and the Purchaser. This shall not affect
any announcement or circular required by law or any regulatory body or
the rules of any recognised stock exchange but the party with an
obligation to make an announcement or issue a circular shall consult
with the other party/parties insofar as is reasonably practicable
before complying with such an obligation.
11.3 Confidentiality
11.3.1 The parties acknowledge that the Confidentiality Agreement
shall cease to have any force or effect from Completion.
11.3.2 Subject to Clause 11.3.4, each of the Vendors shall treat as
confidential and not disclose or use any information which
relates to:
(i) the provisions of this Agreement and any agreement entered into
pursuant to this Agreement;
(ii) the negotiations relating to this Agreement (and such other
agreements); or
(iii) the Purchaser's business, financial or other affairs (including
the business, financial or other affairs of the Group Companies
and including, in each case, future plans and targets).
11.3.3 Subject to Clause 11.3.4, the Purchaser shall treat as
confidential and not disclose or use any information received or
obtained as a result of entering into this Agreement (or any
agreement entered into pursuant to this Agreement)which relates
to:
(i) the provisions of this Agreement and any agreement entered into
pursuant to this Agreement;
(ii) the negotiations relating to this Agreement (and such other
agreements); or
(iii) any Vendor's business, financial or other affairs (including
future plans and targets).
11.3.4 Neither Clause 11.3.2 or 11.3.3 shall prohibit disclosure or
use of any information if and to the extent:
(i) the disclosure or use is required by law, any regulatory body or
the rules and regulations of any recognised stock exchange;
(ii) the disclosure or use is required to vest the full benefit of
this Agreement in the Vendors or the Purchaser, as the case may
be;
19
(iii) the disclosure or use is required for the purpose of any
judicial proceedings arising out of this Agreement or any other
agreement entered into under or pursuant to this Agreement or the
disclosure is reasonably required to be made to a Taxation
authority in connection with the Taxation affairs of the
disclosing party;
(iv) the disclosure is made to professional advisers of the Purchaser
or the Vendors on terms that such professional advisers undertake
to comply with the provisions of Clause 11.3.2 or 11.3.3 in
respect of such information as if they were a party to this
Agreement;
(v) the information becomes publicly available (other than by breach
of the Confidentiality Agreement or of this Agreement);
(vi) the other party has given prior written approval to the
disclosure or use;
(vii) the information is independently developed after Completion,
provided that prior to disclosure or use of any information
pursuant to Clause 11.3.4(i), (ii), (iii) (except in the case
of disclosure to a Taxation authority) or (iv), the party
concerned shall promptly notify the other party of such
requirement with a view to providing the other party with the
opportunity to contest such disclosure or use or otherwise to
agree the timing and content of such disclosure or use.
11.4 Return of Documents etc
11.4.1 If Completion does not take place, the Purchaser shall
forthwith:
(i) return all written information of or relating to the Vendors and
each Group Company provided to the Purchaser or its advisers (the
"Confidential Information") without keeping any copies thereof;
(ii) destroy all information, analyses, compilations, notes, studies,
memoranda or other documents derived from, containing or
reflecting Confidential Information;
(iii) so far as it is practicable to do so (but, in any event, without
prejudice to the obligations of confidentiality contained in this
Agreement, expunge any Confidential Information from any
computer, word processor or other device.
11.4.2 Notwithstanding Clause 11.4.1, the Purchaser may retain any
Confidential Information contained or referred to in board
minutes or in documents referred to therein and the Purchaser's
advisers may keep one copy of any document in their possession
for record purposes without prejudice to any duties of
confidentiality in relation to such Confidential Information
contained in this Agreement or the Confidentiality Agreement.
11.4.3 Clause 11.4.1 shall not apply to any information available from
public records or information acquired by the Purchaser otherwise
than from the Vendors, any of the Group Companies and their
respective employees, officers or agents.
20
11.5 Successors and Assigns
The Vendors, 3i and the Warrantors agree that the benefit of every
provision in this Agreement and the Tax Deed of Covenant is given to
the Purchaser for itself and its successors in title and assigns.
Accordingly, the Purchaser (and its successors and assigns) may,
without the consent of the Vendors, 3i or the Warrantors, assign the
benefit of all or any of the Vendors', 3i's and the Warrantors'
obligations under this Agreement, and/or any benefit arising under or
out of this Agreement and/or the Tax Deed of Covenant, provided that
the assignee shall not be entitled to receive under this Clause any
greater amount than that to which the Purchaser would have been
entitled. 3i shall be entitled to assign the benefit and/or the burden
of its rights under this Agreement to any other member of the 3i Group.
11.6 Third Party Rights
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of
this Agreement save in respect of Clauses 7.7 and 10.
11.7 Variation
No variation of this Agreement shall be effective unless in writing and
signed by or on behalf of each of the parties to this Agreement.
11.8 Time of the Essence
Time shall be of the essence of this Agreement both as regards any
dates and periods mentioned and as regards any dates and periods which
may be substituted for them in accordance with this Agreement or by
agreement in writing between the parties.
11.9 Further Assurances
11.9.1 At any time after the date of this Agreement the Vendors shall
and shall use their reasonable endeavours to procure that any
necessary third party shall at the Vendors' expense execute such
documents and do such acts and things as the Purchaser may
reasonably require for the purpose of giving to the Purchaser the
full benefit of all the provisions of this Agreement.
11.9.2 At any time after the date of this Agreement 3i shall procure
that any necessary third party shall at 3i's expense execute such
documents and do such acts and things as the Purchaser may
reasonably require for the purpose of giving to the Purchaser the
full benefit of 3i's proportion of the Shares.
11.10 Books and Records
The Purchaser shall, and shall procure that the Group shall, retain for
a reasonable period from Completion and allow the Vendors or the
Vendors' representatives to have, reasonable access to (and, at the
Vendors' expense, copies of) the books, records and documents of the
Group to the extent they relate to the period prior to Completion and
to the extent reasonably required by the Vendors to comply with any
relevant law or regulations or in connection with the preparation and
agreement of any accounting, tax or other records.
21
11.11 Costs
The Vendors and 3i shall proportionately bear all costs incurred by
them and the Group in connection with the preparation, negotiation and
entry into of this Agreement, the Tax Deed of Covenant and the sale of
the Shares. The Purchaser shall bear all such costs incurred by it. For
the avoidance of doubt, the Company shall bear all costs incurred by it
in respect of the audit of the Audited Accounts.
11.12 Interest
If the Vendors or the Warrantors or the Purchaser default in the
payment when due of any sum payable under this Agreement or the Tax
Deed of Covenant (howsoever determined) the liability of the Vendors or
the Warrantors or the Purchaser (as the case may be) shall be increased
to include an amount equal to the interest which would accrue on a
deposit of such sum bearing interest from the date when such payment is
due until the date of actual payment (as well after as before judgment)
at a rate per annum of 2 per cent above the base rate from time to time
of Barclays Bank PLC, where such interest accrues from day to day and
is compounded monthly.
11.13 Notices
11.13.1 Any notice or other communication in connection with this
Agreement or the Tax Deed of Covenant shall be in writing in
English (a "Notice") and shall be sufficiently given or served if
delivered or sent:
in the case of 3i to:
00 Xxxxxxxx Xxxx
Xxxxxx XX0 0XX
Fax: 000 0000 0000
Attention:
Company Secretary
in the case of the Vendors to:
Xxxxx Xxxxxxxx Services X.X.X
X'Xxxxxxx
Xxxxx X
00 Xxxxxx Xxxxxxxx Xxxxx
XX 00000
Xxxxxx
Fax: (000) 00 00 00 00
Attention: Xxxxxx Xxxxx Esq
in the case of the Warrantors or the Covenantors to:
22
Xxxxx Xxxxxxxx Services X.X.X
X'Xxxxxxx
Xxxxx X
00 Xxxxxx Xxxxxxxx Xxxxx
XX 00000
Xxxxxx
Fax: (000) 00 00 00 00
Attention: Xxxxxx Xxxxx Esq
in the case of the Purchaser to:
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax: 000 0000 0000
Attention: Xxxxx X'Xxxxx Company Secretary
or (in any of the above cases) to such other address or fax
number in the United Kingdom as the relevant party may have
notified to the other in accordance with this Clause.
11.13.2 Any Notice may be delivered by hand or sent by fax or prepaid
post (first class in the case of service in the United Kingdom
and airmail in the case of international service). Without
prejudice to the foregoing, any Notice shall conclusively be
deemed to have been received on the next working day in the place
to which it is sent, if sent by fax, or 48 hours from the time of
posting (if sent by post to an address in the United Kingdom) or
96 hours from the time of posting (if sent by post to an address
outside the United Kingdom), or at the time of delivery, if
delivered by hand.
11.14 Invalidity
If any term in this Agreement shall be held to be illegal, invalid or
unenforceable, in whole or in part, under any enactment or rule of law,
such term or part shall to that extent be deemed not to form part of
this Agreement but the legality, validity or enforceability of the
remainder of this Agreement shall not be affected.
11.15 Counterparts
This Agreement may be entered into in any number of counterparts, all
of which taken together shall constitute one and the same instrument.
Any party may enter into this Agreement by signing any such
counterpart.
23
11.16 Governing Law and Submission to Jurisdiction
11.16.1 This Agreement and the documents to be entered into pursuant
to it, shall be governed by and construed in accordance with
English law.
11.16.2 All the parties irrevocably agree that the courts of England
are to have exclusive jurisdiction to settle any disputes which
may arise out of or in connection with this Agreement and the
documents to be entered into pursuant to it and that accordingly
any proceedings arising out of or in connection with this
Agreement and such documents shall be brought in such courts. All
the parties irrevocably submit to the jurisdiction of such courts
and waive any objection to proceedings in any such court on the
ground of venue or on the ground that proceedings have been
brought in an inconvenient forum. This Clause 11.16.2 is for the
benefit of the Purchaser and shall not limit its right to take
proceedings in any other court of competent jurisdiction.
11.17 Appointment of Process Agent
11.17.1 Each of the Vendors hereby irrevocably appoints Xxxxxx Xxxxx
Esq of Xxxxx Xxxxxxxx, 0/00 Xxxxxxx Xxxx, Xxxxxx XX0X 0XX as its
agent to accept service of process in England in any legal action
or proceedings arising out of this Agreement, service upon whom
shall be deemed valid service whether or not the process is
forwarded to or received by the Vendors or the Warrantors.
11.17.2 POH on behalf of the Vendors shall inform the Purchaser, in
writing, of any change in the address of the process agent of the
Vendors and the Warrantors within 28 days of such change.
11.17.3 If such process agent ceases to be able to act as such or to
have an address in England, each of the Vendors irrevocably
agrees to appoint a new process agent in England acceptable to
the Purchaser and to deliver to the Purchaser within 14 days a
copy of a written acceptance of appointment by the new process
agent.
11.17.4 Nothing in this Agreement shall affect the right to serve
process in any other manner permitted by law.
In witness whereof this Agreement has been duly executed as a deed.
24
SIGNED and DELIVERED by XXXXXXX XXXXXXX as the /s/ Xxxxxxx Xxxxxxx
duly authorised attorney of
3i GROUP PLC in the presence of:
Xxxxx Xxxxxx
00 Xxx Xxxxxx
Xxxxxxxxxxx
SIGNED and DELIVERED by /s/ Xxxxxxx Xxxxxx
XXXXXXX XXXXXX
as the duly authorised
attorney of XXXXX XXXXXXXXX in the presence of:
Xxxxx Xxxxxx
00 Xxx Xxxxxx
Xxxxxxxxxxx
SIGNED and DELIVERED by /s/ Xxxxxxx Xxxxxx
XXXXXXX XXXXXX in the presence of:
Xxxxx Xxxxxx
00 Xxx Xxxxxx
Xxxxxxxxxxx
SIGNED and DELIVERED by /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx as nominee for XXXXXX
XXXXXX in the presence of:
Xxxxx Xxxxxx
00 Xxx Xxxxxx
Xxxxxxxxxxx
25
SIGNED and DELIVERED by /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx as nominee for
XXXXXXXXX XXXXXX in the presence of:
Xxxxx Xxxxxx
00 Xxx Xxxxxx
Xxxxxxxxxxx
SIGNED and DELIVERED by /s/ Xxxx Xxxxx
XXXX XXXXX as the
duly authorised attorney of
PORT OF HERCULES TRUSTEES LIMITED in the
presence of:
Xxxxx Xxxxxx
00 Xxx Xxxxxx
Xxxxxxxxxxx
SIGNED and DELIVERED by /s/ Xxxx Xxxxx
XXXX XXXXX as the duly
authorised attorney of XXXXX XXXXXXX XXXX in
the presence of:
Xxxxx Xxxxxx
00 Xxx Xxxxxx
Xxxxxxxxxxx
SIGNED and DELIVERED by /s/ Xxxxxx Bridge
XXXXXX BRIDGE in the presence of:
Xxxxx Xxxxxx
00 Xxx Xxxxxx
Xxxxxxxxxxx
26
SIGNED and DELIVERED by /s/ Xxxxx Xxxxxx
XXXXX XXXXXX in the presence of:
Xxxxx Xxxxxx
00 Xxx Xxxxxx
Xxxxxxxxxxx
SIGNED and DELIVERED by /s/ Xxxxx Xxxxxx
XXXXX XXXXXX as the duly authorised
attorney of XXXXXXXX XXXXXX in the presence of:
Xxxxx Xxxxxx
00 Xxx Xxxxxx
Xxxxxxxxxxx
SIGNED and DELIVERED by /s/ Xxxxx Xxxx
XXXXX XXXX in the presence of:
Xxxxx Xxxxxx
00 Xxx Xxxxxx
Xxxxxxxxxxx
SIGNED and DELIVERED by XXXXXX BRIDGE as the /s/ Xxxxxx Bridge
duly authorised
attorney of XXXXXX XXXX in the presence of:
Xxxxx Xxxxxx
00 Xxx Xxxxxx
Xxxxxxxxxxx
SIGNED and DELIVERED by XXXXXX XXXXXXX and /s/ Xxxxxx Xxxxxxx
XXXXX X'XXXXX on /s/ Xxxxx X'Xxxxx
behalf of
EBOOKERS PLC in
the presence of:
Xxxxx Xxxxx
One Silk Street
London
27
Schedule 1
Part 1
Particulars of Vendors, Shares Sold etc.
(1) (2) (3) (4) (5) (6) (7)
Names and Addresses of Shares Sold Cash Consideration Placing Proceeds Value of Deferred Cash Payment
Vendors payable by Consideration Consideration under
Purchaser Shares 3.1.1(ii)
Clause
Xxxxx Xxxxxxxxx 278,454 (pound)119,954.07 (pound)473,787.60 (pound)186,408.24 (pound)46,602.06 -
Hambledon Ordinary Shares
0 Xxxxxxx Xxxx
Xxxxxxxxx Xxxx
Xxxxx
XX00 0XX
Xxxxxxx Xxxxxx 1,191,408 (pound)494,100.01 (pound)2,665,233.59 (pound)159,515,23 (pound)199,394.03 -
Clarendon House Ordinary Shares
Xxxx Xxxx
Xxxx Xxxxxx
Xxxxxxxxxxx
XX00 0XX
Xxxxxxx Xxxxxx as nominee 35,842 (pound)14,864.37 (pound)80,180.17 (pound)4,798.82 (pound)5,998.52 -
for Xxxx Xxxxxx Xxxxxx Ordinary Shares
Xxxxxxx Xxxxxx as nominee 35,842 (pound)14,864.37 (pound)80,180.17 (pound)4,798.82 (pound)5,998.52 -
for Master Xxxxxxxxx Xxxxxx Ordinary Shares
28
Port of Hercules 10,988,748 (pound)2,483,888.14 (pound)26,053,587.78 - (pound)1,839,076.78 (pound)2,029,221
Trustees Ordinary
Limited Shares
c/o Havelot Trust Company
(BVI) Limited
Xxxxxx Xxxxxxxx
XX Xxx 0000
Xxxx Xxxx
Xxxxxxx
British Virgin Islands
Xxxxxx Bridge 2,520,094 (pound)1,070,437.65 (pound)4,794,038.45 (pound)1,180,936.15(pound)421,762.91 -
00 Xxxxxxx Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxx
XX0 0XX
Xxxxx Xxxxxx 916,398 B (pound)376,367.19 (pound)2,172,718.47 - (pound)153,368.36 -
00 Xxxxxx Xxxx Xxxx Xxxxxxxx Shares
Xxxxxxxxxxxx
Xxxxxxxxxxxxxxx
XX0 0XX
29
Xxxxxxxx Xxxxxx 190,916 B (pound)78,409.73 (pound)452,649.09 - (pound)31,951.70 -
00 Xxxxxx Xxxx Xxxx Xxxxxxxx Shares
Xxxxxxxxxxxx
Xxxxxxxxxxxxxxx
XX0 0XX
Xxxxx Xxxx 190,916 (pound)82,243.93 (pound)324,842.29 (pound)127,806.80 (pound)31,951.70 -
00 Xxxxxx Xxxxx Xxxxxxxx Shares
Admiral Walk
Carlton Gate
Xxxxx Xxxx
London
Xxxxxx Xxxx 184,425 (pound)79,447.70 (pound)313,797.89 (pound)123,461.47 (pound)30,865.37 -
00 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx
Xxxxxx
X0 0XX
Part 2
Particulars of 3i
3i Group plc 1,392,388 A (pound)571,857.60 (pound)3,301,258.98 - (pound)233,030.05 -
00 Xxxxxxxx Xxxx Xxxxxxxx Shares
London 1,250,000
XX0 0XX Preference Shares (pound)1,252,876 - - - -
30
Part 3
Particulars of the Company
Registered Number: 03957361
Registered Office: 0 Xxxxx Xxxx, Xxxxx, Xxxxxxxxx, XX00 0XX
Date and place of incorporation: Incorporated in England on 22 March 2000
Directors: Xxxxx Xxxxxxx Xxxx
Xxxxx Xxxxxxx Xxxxx
Xxxxxx Bridge
Xxxxx Xxxxxxxx Xxxxxxxx
Secretary: Xxxxx Xxxxxxxx Xxxxxxxx
VAT Number: 000 00 0000
Tax District and Reference Number: Winchester 773 71665 17980 A05
Accounting Reference Date: 31 March
Auditors: Ernst & Young LLP
Solicitors: Lamport Bassitt
31
Authorised Share Capital: (pound)19,175,431 divided into
15,425,729
ordinary Shares of (pound)1.00 each,
1,392,388 A ordinary shares of(pound)
1.00 each,
1,107,314 B ordinary shares of
(pound)1.00 each and
1,250,000 Preference Shares of
(pound)1.00 each
Issued and fully paid-up Share Capital: (pound)19,175,431 divided into
15,425,729 ordinary Shares of(pound)
1.00 each,
1,392,388 A ordinary shares of(pound)
1.00 each,
1,107,314 B ordinary shares of
(pound)1.00 each and
1,250,000 Preference Shares of
(pound)1.00 each
Loan Capital: Nil
32
Part 4
Particulars of the Subsidiaries
Travelbag PLC
Registered Number: 01434872
Registered Office: 0 Xxxxx Xxxx, Xxxxx, Xxxxxxxxx, XX00 0XX
Date and place of incorporation: Incorporated in England on 4 July 1979
Directors: Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxx Xxxx Xxxxxx
Xxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxx Xxxx Xxxxxx
Xxxxx Xxxxxxx Xxxx
Xxxxxxx Xxxxx Xxxxxx
Secretary: Xxxxx Xxxxxxxx Xxxxxxxx
VAT Number: 000 000 000
Tax District and Reference Number: Winchester 773 377 300 356 8A09
Accounting Reference Date: 31 March
Auditors: Ernst & Young LLP
Solicitors: Lamport Bassitt
Authorised Share Capital: (pound)117,000 divided into 117,000 Ordinary
Shares of (pound)1.00 each
33
Issued and fully paid-up Share
Capital: 104,881.00 Ordinary Shares of(pound)1.00 each
Loan Capital: Nil
Shareholders Beneficial Owners No. of Shares
Travelbag Holdings Limited - 104,881
---------------------
Bridge the World Travel Services Limited
Registered Number: 02332143
Registered Office: 0 Xxxxx Xxxx, Xxxxx, Xxxxxxxxx, XX00 0XX
Date and place of incorporation: Incorporated in England on 30 December 1988
Directors: Xxxxxx Bridge
Xxxxx Xxxx Xxxx
Secretary: Xxxxxx Bridge
VAT Number: 000 000 000
Tax District and Reference Number: Winchester 623 337 832 367 6A04
Accounting Reference Date: 31 March
Auditors: Ernst & Young LLP
Solicitors: Lamport Bassitt
Authorised Share Capital: (pound)100,000 divided into 100,000 Ordinary
Shares of (pound)1.00 each
Issued and fully paid-up Share
Capital: 52,415 Ordinary Shares of(pound)1.00 each
Loan Capital: Nil
Shareholders Beneficial Owners No. of Shares
Travelbag Holdings Limited - 52,415
------------------
34
Travelbag Australia Pty Limited
Registered Number: 090 912 664
Registered Office: 000 Xxxxxxxxx Xxxxxx
XXXXXXX XXX
0000
Date and place of incorporation: 14/12/1999 & Victoria
Directors: Xxxxxx Xxxxxxx
Xxxxx Xxxx
Secretary: Xxxxxx Xxxxxxx
Australian Business Number: 24 090 912 664
Tax File Number: 33 332 554
Accounting Reference Date: 31 March
Authorised Share Capital: $2
Issued and fully paid-up Share Capital: 2 Ordinary Shares of $1 each
35
Shareholders Beneficial Owners No. of Shares
Travelbag plc - 2
36
Schedule 2
Completion Obligations
1 Vendors' Obligations
1.1 General
The Vendors shall deliver or make available the following to the
Purchaser's Solicitors to be held in escrow in accordance with Clause
6.1:
1.1.1 transfers of the Shares duly executed by the registered holders
in favour of the Purchaser or as it may direct accompanied by the
relative share certificates (or an express indemnity in a form
satisfactory to the Purchaser in the case of any certificate
found to be missing);
1.1.2 the written resignations of the secretaries of each Group
Company from his office as secretary in the agreed terms to take
effect on the date of Completion;
1.1.3 such waivers or consents as the Purchaser may require signed by
members of the Company to enable the Purchaser or its nominees to
be registered as holders of the Shares;
1.1.4 (for the Purchaser itself and as agent for the Company) the
certificates of incorporation, corporate seals (if any), cheque
books, statutory and other books of each Group Company (duly
written up-to-date), the share certificates in respect of each of
the Subsidiaries and transfers of all shares in the Subsidiaries
held by nominees in favour of the Purchaser or as it may direct;
1.1.5 the Tax Deed of Covenant duly executed by the Covenantors named
in it;
1.1.6 all the financial and accounting books and records of each Group
Company and (for the Purchaser itself and as agent for the
Company) all title deeds (subject to appropriate undertakings
being given to Lloyds TSB Bank Plc) and other documentation
relating to the Properties;
1.1.7 (if the Purchaser so requires) irrevocable powers of attorney
(in such form as the Purchaser may reasonably require) executed
by each of the holders of the Shares in favour of the Purchaser
to enable the Purchaser (pending registration of the relevant
transfers) to exercise all voting and other rights attaching to
the Shares and to appoint proxies for this purpose;
1.1.8 evidence satisfactory to the Purchaser that the provisions of
paragraph 6.2 of Schedule 3 ("Arrangements with Connected Persons
etc.") have been or will be duly complied with prior to the date
fixed for Completion insofar as they require certain matters to
be dealt with prior to Completion;
1.1.9 a duly executed assignment of the trade xxxx "LITTLE GEMS" to
Bridge the World Travel Services Limited in the agreed terms;
1.1.10 evidence satisfactory to the Purchaser that the provisions of
Clause 5.3 have been complied with; and
1.1.11 a letter from Mr Xxxxx Xxxxxx to Travelbag plc in relation to
the domain name x-xxxxxxxxx.xx.xx in the agreed terms.
37
1.2 Board Resolutions of the Group Companies
As soon as practicable following satisfaction or waiver of the
conditions set out in Clause 4.1 (other than the Placing Condition) the
Vendors shall also procure the passing of Board Resolutions of each
Group Company, in each case subject to this Agreement becoming
unconditional in all respects:
1.2.1 (if so required by the Purchaser) revoking all existing
authorities to bankers in respect of the operation of its bank
accounts and giving authority in favour of such persons as the
Purchaser may nominate to operate such accounts;
1.2.2 accepting the resignations referred to in paragraph 1.1.2 of
this Schedule and appointing Xxxxx X'Xxxxx as the secretary of
each of the Group Companies;
1.2.3 approving the registration of the share transfers referred to in
paragraph 1.1.1 of this Schedule subject only to their being duly
stamped;
1.2.4 changing its registered office in accordance with instructions
given by the Purchaser;
and shall deliver to the Purchaser's Solicitors duly certified copies
of such Resolutions to be held in escrow pursuant to Clause 6.1.
1.3 3i's Obligations
3i shall deliver or make available to the Purchaser's Solicitors to be
held in escrow in accordance with Clause 6.1 a transfer of the Shares
it holds in the Company duly executed on its behalf and accompanied by
the relevant share certificates.
2 Purchaser's Resolutions
As soon as practicable following satisfaction or waiver of the
conditions set out in Clause 4.1 (other than the Placing Condition) and
against compliance by the Vendors with the provisions of paragraphs 1.1
and 1.2 of this Schedule, the Purchaser shall deliver to the
Purchaser's Solicitors, to be held in escrow in accordance with Clause
6.1, copies (certified by the secretary of the Purchaser to be true
copies) of the resolution of the Purchaser referred to in Clause 4.1.1
and a resolution of the directors of the Purchaser (i) authorising the
purchase of the Shares for the consideration and upon the terms set out
in this Agreement and (ii) allotting and authorising the issue of the
Consideration Shares pursuant to Clause 3.2, subject to the admission
of the Consideration Shares to the Official List and the admission of
the Consideration Shares to trading by the London Stock Exchange and
such admissions becoming effective.
38
Schedule 3
Warranties given under Clause 7
1 Authority and Capacity of the Vendors and the Warrantors
1.1 Incorporation
The Group Companies are companies duly incorporated and validly
existing under their respective laws of incorporation.
1.2 Authority to enter into this Agreement etc.
Each of the Vendors and the Warrantors and, in the case of the Tax Deed
of Covenant, each of the Covenantors, has the legal right and full
power and authority to enter into and perform this Agreement and any
other documents to be executed by the Vendors and the Warrantors
pursuant to or in connection with this Agreement which when executed
will constitute valid and binding obligations on each Vendor,
Covenantor and Warrantor, in accordance with their respective terms.
1.3 No Breach
The execution and delivery of, and the performance by the Vendors and
the Warrantors, or in the case of the Tax Deed of Covenant the
Covenantors, of their obligations under, this Agreement and the Tax
Deed of Covenant and any other documents to be executed by the Vendors
and the Warrantors pursuant to or in connection with this Agreement
will not and are not likely to:
1.3.1 result in a breach of any provision of the memorandum or
articles of association or other relevant constitutional
documents of any Vendor or Group Company; or
1.3.2 so far as the Warrantors are aware result in a breach of or give
any third party a right to terminate or modify, or result in the
creation of any Encumbrance under, any agreement, licence or
other instrument or result in a breach of any order, judgment or
decree of any Court, governmental agency or regulatory body to
which any of the Vendors or Group Companies is expressly a party
or by which any of the Vendors or any of their respective assets
or Group Companies is expressly bound.
1.4 The Shares
The Vendors are entitled to sell and transfer to the Purchaser the full
legal and beneficial ownership of the Shares set opposite their names
in Part 1 of Schedule 1 on the terms of this Agreement without the
consent of any third party. The Shares comprise the whole of the
allotted and issued share capital of the Company, have been properly
and validly allotted and issued and are each fully paid.
1.5 Pre-emption etc.
No person has the right (whether exercisable now or in the future and
whether contingent or not) to call for the allotment, conversion,
issue, sale or transfer of any share or loan capital or any other
security giving rise to a right over the capital of any Group Company
under any option or other agreement (including conversion rights and
rights of pre-emption) and there are no Encumbrances on the shares of
any Group Company or any arrangements or obligations to create any
Encumbrances.
39
2 Accuracy and Adequacy of Information Disclosed to the Purchaser
2.1 Disclosure Letter
All information contained in Schedule 1 to in this Agreement and all
factual information contained in paragraph 3 of the Disclosure Letter
is true, complete and accurate in all material respects and not
misleading. This Warranty shall not apply in relation to the contents
of any documents referred to in the Disclosure Letter. To the extent
that a disclosure in the Disclosure Letter has application to a
Warranty which is qualified by reference to the awareness of the
Warrantors, this Warranty shall be similarly qualified.
2.2 Documents
The documents referred to in the list attached to the Disclosure Letter
are true copies of the originals and none of such documents has been
amended, modified or superseded in any material respect.
3 Accounts and Records
3.1 Latest Accounts
The Audited Accounts have been prepared in accordance with applicable
law and in accordance with accounting principles, standards and
practices generally accepted at the date of this Agreement in the
United Kingdom and, subject thereto, on a basis consistent with that
adopted in preparing the audited accounts for the previous two
financial periods so as to give a true and fair view of the assets,
liabilities and state of affairs of each of the Group Companies and of
the Group as a whole at the Balance Sheet Date and of the profits or
losses for the period concerned and as at that date make (in accordance
with the Companies Xxx 0000 and relevant accounting standards and
practices):
3.1.1 proper provision for actual liabilities;
3.1.2 proper provision (or note in accordance with good accountancy
practice) for all contingent liabilities; and
3.1.3 provision reasonably regarded as adequate for all bad and
doubtful debts.
3.2 Management Accounts
The Management Accounts have been prepared in accordance with the
accounting policies used in preparing the Audited Accounts applied on a
consistent basis and have been prepared with due care.
3.3 Accounting and other Records
The statutory books and books of account of each Group Company are
up-to-date and maintained in accordance with all applicable legal
requirements on a proper and consistent basis and so far as the
Warrantors are aware contain complete and accurate records in all
material respects of all matters required to be dealt with in such
books and all such books and all other documents (including documents
of title and copies of all subsisting agreements to which any Group
Company is a party) which are the property of each Group Company or
ought to be in its possession are in its possession (or under its
control) and no notice or allegation that any is incorrect or should be
rectified has been received. All documents and returns required by law
to be filed by the Companies Xxx 0000 have been duly and correctly
filed.
40
4 Changes since Balance Sheet Date
Since the Balance Sheet Date as regards each Group Company:
4.1.1 there has been no material adverse change in its financial or
trading position;
4.1.2 its business has been carried on in the ordinary and usual
course, without any material interruption or alteration in its
nature, scope or manner, other than those that affect businesses
of a similar nature to that carried on by the Group and so as to
maintain the same as a going concern;
4.1.3 it has not entered into any transaction or assumed or incurred
any liabilities (including contingent liabilities) or made any
payment not provided for in the Audited Accounts otherwise than
in the ordinary and usual course of carrying on its business;
4.1.4 no dividend or other distribution has been declared, made or
paid to its members except as provided for in the relevant
balance sheet;
4.1.5 no share or loan capital or any other security giving rise to a
right over the capital has been allotted or issued or agreed to
be allotted or issued;
4.1.6 it has not redeemed or purchased or agreed to redeem or purchase
any of its share capital;
4.1.7 it has not made or received any surrender relating to group
relief or any surrender of a tax refund;
4.1.8 no insurance claims have been refused or settled below the
amount claimed;
4.1.9 no Group Company has made any gifts in excess of(pound)1,000
(whether by way of payment of sums of money or the transfer of
assets) to any third party;
4.1.10 no Group Company (other than in relation to other Group
Companies) has given, or agreed to give, a guarantee, indemnity
or other agreement to secure, or incurred financial or other
obligations with respect to, another person's obligations;
4.1.11 no Group Company has incurred any additional borrowings or
other indebtedness otherwise than in the ordinary course of
business;
4.1.12 no bonuses relating to the sale of the Group or retention
bonuses or any other bonuses to directors, officers or Senior
Employees of any Group Company have been granted or made; and
4.1.13 no Group Company has changed its accounting reference period.
5 Legal Matters
5.1 Compliance with Laws
So far as the Warrantors are aware, each of the Group Companies has
carried on and is carrying on its business and operations so that there
have been no breaches of applicable laws, regulations and bye-laws in
each country in which it is carried on and, so far as the Warrantors
are aware, there have not been and are not any breaches by any Group
Company of its constitutional documents and there has not been and no
Group Company has been notified of any investigation or enquiry by, or
41
order, decree, decision or judgment of, any court, tribunal,
arbitrator, governmental agency or regulatory body outstanding or
anticipated against any Group Company or any person for whose acts or
defaults it may be vicariously liable, nor has any Group Company
received any notice or other communication (official or otherwise) from
any court, tribunal, arbitrator, governmental agency or regulatory body
with respect to an alleged actual or potential violation and/or failure
to comply with any such applicable law, regulation, bye-law or
constitutional document, or requiring it to take or omit any action. So
far as the Warrantors are aware, each Group Company has complied with
all requirements of the Association of British Insurers relating to the
sale by it of travel insurance policies.
5.2 CAA, ABTA and IATA
5.2.1 CAA
Each Group Company which holds an ATOL is in compliance with
the Schedule of Terms and Conditions included in its ATOL(s),
with the result that, inter alia, such Group Company meets the
qualifications to remain an ATOL holder. All documentary
filings required to be made by any such Group Company by the
CAA are up-to-date, complete and accurate.
5.2.2 ABTA
Each Group Company which is an ABTA Member is in compliance
with all relevant parts of the Articles of Association of ABTA,
with the result that, inter alia, such Group Company meets the
qualifications to remain an ABTA Member. So far as the
Warrantors are aware, no reviews by the Membership Committee,
Board of Directors or Appeal Board of ABTA regarding any such
Group Company's membership are pending. So far as the
Warrantors are aware, no alleged infringements of the Code of
Conduct by any such Group Company are under investigation by
the Secretariat or review by the Code of Conduct Committee or
Appeal Board. All documentary filings required to be made by
any such Group Company under the Articles of Association, and
by ABTA, are up-to-date, complete and accurate.
5.2.3 IATA
Each Group Company which is an IATA Accredited Agent is in
compliance with all Passenger Agency Conference Resolutions
applicable to Accredited Agents, with the result that, inter
alia, it meets the qualifications to remain an IATA Accredited
Agent. So far as the Warrantors are aware, no reviews by the
Travel Agency Commissioner are pending in relation to any such
Group Company. So far as the Warrantors are aware, no reviews
by the Arbitration Board are pending in relation to decisions
of the Travel Agency Commissioner in relation to any such Group
Company. All documentary filings required by Passenger Agency
Conference Resolutions, and IATA, in relation to any such Group
Company are up-to-date, complete and accurate.
5.3 Litigation
5.3.1 No Group Company (or any person for whose acts or defaults a
Group Company may be vicariously liable) is involved whether as
claimant or defendant or other party in any claim, legal action,
proceeding, suit, litigation, prosecution, investigation, enquiry
or arbitration (other than as claimant in the collection of debts
42
arising in the ordinary and usual course of its business none of
which exceeds (pound)25,000) and (so far as the Warrantors are
aware) no such claim, legal action, proceeding, suit, litigation,
prosecution, investigation, enquiry or arbitration is pending or
threatened by or against any Group Company (or any person for
whose acts or defaults a Group Company may be vicariously
liable).
5.3.2 So far as the Warrantors are aware, there are no investigations,
disciplinary proceedings or other circumstances likely to lead to
any such claim or legal action, proceeding, suit, litigation,
prosecution, investigation, enquiry or arbitration.
5.4 Environmental, Health and Safety and Products Liability
5.4.1 For the purposes of this paragraph 5.4:
"Environment" means all or any of the following media (alone or in
combination): air (including the air within buildings and the air
within other natural or man-made structures whether above or below
ground); water (including water under or within land or in drains or
sewers); soil and land and any ecological systems and living organisms
supported by these media;
"Environmental Authority" means any legal person or body of persons
(including any government department or government agency or court or
tribunal) having jurisdiction to determine any matter arising under
Environmental Law and/or relating to the Environment;
"Environmental Law" means all applicable laws (including, for the
avoidance of doubt, common law), statutes, regulations, statutory
guidance notes and final and binding court and other tribunal decisions
of any relevant jurisdiction in force in the relevant jurisdiction at
Completion whose purpose is to protect, or prevent pollution of, the
Environment or to regulate emissions, discharges, or releases of
Hazardous Substances into the Environment, or to regulate the use,
treatment, storage, burial, disposal, transport or handling of
Hazardous Substances, and all bye-laws, codes, regulations, decrees or
orders issued or promulgated or approved thereunder or in connection
therewith to the extent that the same have force of law at Completion;
"Environmental Permit" means any licence, approval, authorisation,
permission, notification, waiver, order or exemption which is issued,
granted or required under Environmental Law which is material to the
operation of the business of the Group on or before Completion; and
"Hazardous Substances" means any wastes, pollutants, contaminants and
any other natural or artificial substance (whether in the form of a
solid, liquid, gas or vapour) which is capable of causing harm or
damage to the Environment or a nuisance to any person.
5.4.2 So far as the Warrantors are aware, each Group Company is
conducting, and has conducted, the business of the Group in
compliance with Environmental Law.
5.4.3 So far as the Warrantors are aware, all Environmental Permits:
(i) have been obtained;
(ii) are in force; and
(iii) have been complied with.
43
5.4.4 No Group Company has received any written notice of any civil,
criminal, regulatory or administrative action, claim,
investigation or other proceeding or suit relating to
Environmental Law or Environmental Permits.
5.4.5 No Group Company has received written notice that either (i) an
Environmental Authority is intending to revoke, suspend, vary or
limit any Environmental Permits or (ii) any amendment to any
Environmental Permit is required to enable the continued
operation of the business of the Group.
5.5 Insolvency etc.
5.5.1 No order has been made, petition presented, resolution passed or
meeting convened for the winding up (or other process whereby the
business is terminated and the assets of the company concerned
are distributed amongst the creditors and/or shareholders or
other contributories) of any Group Company and there are no cases
or proceedings under any applicable insolvency, reorganisation,
or similar laws in any jurisdiction concerning any Group Company
and no events have occurred which, under applicable laws, would
justify any such cases or proceedings.
5.5.2 No petition has been presented or other proceedings have been
commenced for an administration order to be made (or any other
order to be made by which during the period it is in force, the
affairs, business and assets of the company concerned are managed
by a person appointed for the purpose by a Court, governmental
agency or similar body) in relation to any Group Company, nor has
any such order been made.
5.5.3 No receiver (including an administrative receiver), liquidator,
trustee, administrator, custodian or similar official has been
appointed in any jurisdiction in respect of the whole or any part
of the business or assets of any Group Company and no step has
been taken for or with a view to the appointment of such a
person.
5.5.4 No Group Company or Warrantor is insolvent or unable to pay its
or his debts as they fall due.
5.6 Data Protection
5.6.1 So far as the Warrantors are aware, each Group Company has
complied in the last three years with applicable requirements
(including notification requirements) of the Data Protection Xxx
0000.
5.6.2 No notice alleging non-compliance with the Data Protection Act
1998 (including any enforcement notice, deregistration notice or
transfer prohibition notice) has been received by any of the
Group Companies from the Office of the Information Commissioner.
5.6.3 No undertaking has been made by any Group Company to the Office
of the Information Commissioner.
5.6.4 No correspondence, dispute, enquiry or Information Notice has
been made or audit undertaken or, so far as the Warrantors are
aware, proposed by the Office of the Information Commissioner in
relation to a Group Company.
44
5.6.5 Where required by the Data Protection Xxx 0000, each Group
Company has, so far as the Warrantors are aware, obtained valid
consents for activities requiring the processing of personal data
(including direct marketing activities).
5.6.6 No Group Company has any outstanding subject access requests or
outstanding court orders in respect of the rectification or
erasure of personal data.
5.6.7 No Group Company has been involved in a dispute with an
individual (including any written claim for compensation) and no
compensation or other form of remedial action has been taken in
respect of any infringement or allegation of any infringement of
applicable Data Protection Xxx 0000 in the previous three years.
5.6.8 No Group Company has conducted any interception, monitoring or
recording of any communications on any network under its control
in breach of the Data Protection Act 1998 within the last three
years.
6 Trading and Contractual Arrangements
6.1 Capital Commitments
There are no material capital commitments entered into or proposed by
any of the Group Companies. For these purposes, a material capital
commitment is one involving capital expenditure of over (pound)25,000,
exclusive of VAT.
6.2 Arrangements with Connected Persons etc.
6.2.1 There is no indebtedness (actual or contingent) exceeding in
each case (pound)25,000 and arising other than in the ordinary
course of business nor any indemnity, guarantee or security
arrangement between any Group Company or Vendor or any current or
former employee, current or former director or any current or
former consultant of any Group Company or any person connected
with any of such persons.
6.2.2 With the exception of matters relating to terms of employment
and remuneration in each case entered into in the ordinary course
of business of the relevant Group Company, no Group Company is or
has been party to any contract, arrangement or understanding with
(i) any current or former employee, current or former director or
any current or former consultant of any Group Company or any
person connected with any of such persons, or (ii) in which
current or former employee, current or former director or any
current or former consultant of any Group Company or any person
connected with any of such persons is interested (whether
directly or indirectly).
6.2.3 There are no existing contracts or arrangements between or
involving any Group Company and any of the Vendors and/or any
director of any Group Company and/or any person connected with
any of them.
6.3 Contracts
6.3.1 No Group Company is, or has been, party to any contract of a
value which has material consequences in terms of expenditure or
revenue expectations which:
(i) is not wholly on an arm's length basis;
45
(ii) is of a long-term nature (that is, unlikely to have been
fully performed in accordance with its terms more than six
months after the date it was entered into or undertaken or
incapable of termination by the relevant Group Company on
six months' notice or less);
(iii) cannot readily be fulfilled or performed on time without
abnormal expenditure of money or effort;
(iv) involves, or is likely to involve, the supply of goods or
services, the aggregate sales value of which (exclusive of
VAT) will be more than 10 per cent of turnover of the
business of the Group (exclusive of VAT) for the preceding
financial year.
6.3.2 None of the Group Companies:
(i) is or has been party to any agency, distributorship,
marketing, purchasing, manufacturing or licensing agreement
or arrangement or any agreement or arrangement which
materially restricts its freedom to carry on its business in
any part of the world in such manner as it thinks fit; or
(ii) is, or has agreed to become, a member of any joint venture,
consortium, partnership or other unincorporated association
(other than a recognised trade association).
6.4 Compliance with Agreements
All material contracts, leases, tenancies, licences, concessions and
agreements to which any of the Group Companies is a party are, so far
as the Warrantors are aware, valid, binding and enforceable obligations
of the parties thereto and, so far as the Warrantors are aware, the
terms thereof have been complied with by the relevant Group Company and
by all the other parties thereto and there are, so far as the
Warrantors are aware, no grounds for rescission, avoidance or
repudiation of any material contracts, leases, tenancies, licences,
concessions or agreements and, so far as the Warrantors are aware, no
notice of termination or of intention to terminate has been received in
respect of any thereof.
6.5 Anti-Trust
So far as the Warrantors are aware, no Group Company is a party to any
agreement, arrangement or concerted practice or is carrying on any
practice which in whole or in part contravenes or is invalidated by any
anti-trust, fair trading, consumer protection or similar legislation in
any jurisdiction or in respect of which any filing, registration or
notification is required or is advisable pursuant to such legislation
(whether or not the same has in fact been made).
6.6 Guarantees etc.
Save as disclosed in the Audited Accounts, there is not outstanding any
guarantee, bond, indemnity or suretyship given by or for the benefit of
any Group Company.
7 Employees etc.
7.1 Employees and Terms of Employment
7.1.1 There were no employees employed in the Group Companies as at 13
January 2003 other than those whose details are set out in the
Disclosure Letter.
46
7.1.2 There is not in existence any contract of employment with any
director or employee of any Group Company, nor any consultancy
agreements with any Group Company, which cannot be terminated by
three months' notice or less (or by payment in lieu of notice for
three months or less) without giving rise to any claim for
damages or compensation (other than a statutory redundancy
payment or statutory compensation for unfair dismissal or
otherwise under the Employment Rights Act 1996).
7.1.3 The Disclosure Letter contains full details, in relation to each
Group Company, of:
(i) the total number of employees as at 13 January 2003 (including
those who are on maternity or paternity leave or absent on the
grounds of disability or other long-term leave of absence, and
have or may have a statutory or contractual right to return to
work in a Group Company);
(ii) the name, date of commencement of employment, period of
continuous employment, location, salary and other contractual or
non-contractual benefits of each Senior Employee;
(iii) where any employee has been or is continuously absent from work
for a period in excess of one month within the last six months,
the reason for the absence and the likely length of any such
absence;
(iv) the terms of the contract of employment of each Senior Employee;
and
(v) the terms of all consultancy agreements.
7.1.4 There are no proposals to terminate the employment or
consultancy of any Senior Employees or consultants of any Group
Company or to vary or amend their terms of employment or
consultancy (whether to their detriment or benefit).
7.1.5 There are no terms of employment for employees at any Group
Company or consultancy agreements with any Group Company or terms
of appointment for directors of any Group Company which provide
that a change in control of any Group Company (however change in
control may be defined in the said document, if at all) shall
entitle the said employee, consultant or director to treat the
change in control as amounting to a breach of the contract or
entitling him to any payment or benefit whatsoever or entitling
him to treat himself as redundant or dismissed or released from
any obligation.
7.1.6 Neither of the Companies has given or received notice of the
termination of employment of any Senior Employee who will be
employed at Completion.
7.2 Payments on Termination
Since the Balance Sheet Date:
7.2.1 no liability has been or may be incurred by any Group Company in
relation to the employment, previous employment, or termination
of employment of any employee or former employee of any Group
Company or consultancy with any employee or consultant including,
without limitation, redundancy payments, protective awards,
compensation for wrongful dismissal or unfair dismissal or for
failure to comply with any order for the reinstatement or
re-engagement of any employee and there are no facts or
circumstances so far as the Warrantors are aware which can be
reasonably expected to incur any such liability;
47
7.2.2 no Group Company has made or agreed to make any payment or
provided or agreed to provide any benefit to any employee or
former employee of any Group Company or any dependant of any such
employee or former employee or to any consultant or former
consultant in connection with the proposed termination or
suspension of employment or variation of any contract of
employment of any such employee or former employee or consultancy
agreement of any consultant or former consultant; and
7.2.3 there are no amounts (including without limitation) amounts in
respect of holiday pay, bonus, commission, salary accrued and
payable in respect of past service owing or promised to any
present or former directors or employees of any Group Company
other than salary accrued are not payable or for reimbursement of
expenses.
7.3 Trade Disputes
No Group Company is involved in, and, so far as the Warrantors are
aware, there are no circumstances likely to give rise to, any
industrial or trade dispute or any dispute or negotiation regarding a
claim of material importance with any trade unions, works council,
staff association or other similar organisation or other body (in any
such case whether or not recognised by any of the Group Companies for
collective bargaining or other negotiating purposes) representing any
of the employees.
7.4 Incentive Schemes
7.4.1 The Vendors have provided to the Purchaser copies of the rules
and other documentation relating to all share incentive, share
option, profit sharing, bonus or other incentive arrangements for
or affecting any employees or other workers or former employees
or other former workers of any of the Group Companies, together
with full details of all awards and options granted and the total
potential liability in respect of such awards and options.
7.4.2 No Group Company is or may become liable for any National
Insurance contributions arising out of the grant, exercise or
release of such awards and options which are not fully provided
for in the Audited Accounts.
7.4.3 In respect of all share incentive, share option, profit sharing,
bonus or other incentive arrangements for or affecting any
employees or other workers or former employees or other former
workers of any of the Group Companies, the Vendors have properly
complied with all requirements in relation to PAYE and National
Insurance contributions including making such deductions as are
required by law from all payments made or deemed to be or treated
as made by it or on its behalf and by duly accounting to the
Inland Revenue for all sums so deducted and for all other amounts
for which it is required to account under the PAYE and National
Insurance contributions systems.
7.4.4 There are no share incentive, share option, profit sharing,
bonus or other incentive arrangements in existence in relation to
the Group except for those disclosed under paragraph 7.4.1 above.
7.4.5 The options granted to Xxxxx Xxxx and Xxxxx Xxxx over shares in
Bridge the World Travel Services Limited have lapsed.
48
7.5 Pensions
7.5.1 The Vendors' Schemes are the only schemes to which the Group
Companies make or could become liable to make payments for
providing retirement, death, disability or life assurance
benefits. No proposal has been announced to establish any other
scheme for providing any such benefits and the Group Companies do
not provide and have not promised to provide any such benefits
except under the Vendors' Schemes.
7.5.2 The Vendors' Schemes are exempt approved schemes within the
meaning of Chapter I or Chapter IV (as appropriate) of Part XIV
of the Income and Corporation Taxes Xxx 0000. Members of the
Vendors' Schemes are not contracted-out of the State Earnings
Related Pension Scheme. The Vendors' Schemes comply with, and
have been managed in accordance with all applicable laws,
regulations and requirements.
7.5.3
There are attached to the Disclosure Letter full details of all
benefits and contributions payable under the Vendors' Schemes.
No power to increase those benefits or to provide different
benefits has been exercised, and there are no circumstances in
which there is a practice of exercising such a power under the
Vendors' Schemes. In particular, the Group Companies have never
undertaken and there is no obligation under the Vendors'
Schemes to provide a minimum level of benefits or any defined
level of benefits in respect of any person.
7.5.4 The membership data relating to the Vendors' Schemes has been
supplied to the Purchaser and is complete and accurate.
7.5.5 The Vendors have notified the Purchaser in the Disclosure Letter
of the rate at which contributions to the Vendors' Scheme are
being paid and the basis on which they are calculated, and
whether they are paid in advance or in arrear. All amounts due to
the Vendors' Schemes have been paid. There is no obligation on
the Group Companies to contribute to the Bridge the World Travel
Services Executive Pension Scheme.
7.5.6 There are attached to the Disclosure Letter copies of:
(i) the two latest funding reports of the Vendors' Schemes;
(ii) the two latest annual reports and accounts of the Vendors'
Schemes;
(iii) all reports relating to the investment of the assets of the
Vendors' Schemes during the last year and a list showing
each asset of the Vendors' Schemes and its market value as
at a date no earlier than one month before the date of this
Agreement;
(iv) all agreements with any person for the provision of services
relating to the Vendors' Schemes;
(v) all insurance contracts relating to the Vendors' Schemes;
7.5.7 The lump sum death in service benefits promised under the
Vendors' Schemes are fully insured and the Vendors know of no
reason why an insurer would seek to void the insurance policies.
49
7.5.8 The Group Companies have complied with Section 3 of the Welfare
Reform and Pensions Xxx 0000 (the "WRPA") and in particular
without limitation have:
(i) designated a stakeholder pension scheme the scheme for the
purposes of that section;
(ii) (conducted all requisite prior consultations with the
relevant employees and any organisations representing them;
(iii) supplied the relevant employees with all information
referred to in Section 3(3) of the WRPA; and
(iv) complied with Section 3(5) of the WRPA and the regulations
therein referred to and all other requirements in respect of
deductions and payment of contributions by the relevant
employees from their remuneration.
7.5.9 The Bridge the World Travel Services Limited Executive Pension
Scheme is and has always been operated in accordance with The
Retirement Benefits Schemes (Restriction on Discretion to
Approve) (Small Self-Administered Schemes) Regulations 1991.
Within the investments of The Bridge the World Travel Services
Limited Executive Pension Scheme, there are no assets which are
loans to or from any Group Company, shares in any Group Company
or property which is occupied by any Group Company.
7.5.10 No assets have been withdrawn from the Vendors' Schemes (except
to pay benefits) since the effective date of the list of assets
referred to in paragraph 7.5.6(iii).
7.5.11 The Self Invested Personal Pensions in respect of Xxxxxx
Bridge, Xxxxx Xxxxxx and Xxxxx Xxxx (the "SIPPS") do not hold any
investments relating to the Group Companies (including but not
limited to interests in property). There is no and never has been
any obligation on the Group Companies to contribute to the SIPPS.
7.5.12 All taxes and expenses relating to the Vendors' Schemes have
been paid and no services have been rendered or requested which
have not been paid for.
7.5.13 There is no dispute about the benefits payable under the
Vendors' Schemes, no claim by or against the trustees of the
Vendors' Schemes or any of the participating employees has been
made or threatened, and there are no circumstances which might
give rise to any such dispute or claim. There is currently no
ongoing correspondence with the Occupational Pensions Regulatory
Authority ("OPRA") on any matter which under the Pensions Xxx
0000, OPRA would have the power to invoke either Section 3 or
Section 10 of such Act applying to the Trustees of the Vendors'
Schemes or an employer participating in them.
8 Taxation Matters
8.1 Returns, Information and Clearances
8.1.1 All returns, computations, notices and information which are or
have been required to be made or given by each Group Company for
any Taxation purpose (i) have been made or given within the
requisite periods and on a proper basis and are up-to-date and
correct and (ii) none of them is, or, so far as the Warrantors
are aware, is likely to be, the subject of any dispute with the
Inland Revenue or other Taxation authorities.
50
8.1.2 Each Group Company is in possession of sufficient information to
enable it to compute its liability to Taxation insofar as it
depends on any Transaction occurring on or before Completion.
8.2 Taxation Claims, Liabilities and Reliefs
8.2.1 So far as the Warrantors are aware (for the purposes of this
Clause 8.2.1 the Warrantors shall not be required to make any
enquiries from any other person and Clause 1.3 of the Agreement
shall not apply to this Clause 8.2.1), no relief (whether by way
of deduction, reduction, set-off, exemption, postponement,
roll-over, hold-over, repayment or allowance or otherwise) from,
against or in respect of any Taxation has been claimed and/or
given to any Group Company which could or might be effectively
withdrawn, postponed, restricted, clawed back or otherwise lost
as a result of any act, omission, event or circumstance arising
or occurring at or at any time after Completion within the
ordinary course of business.
8.2.2 There are set out in the Disclosure Letter, with express
reference to this paragraph, full particulars of any arrangements
("Group Payment Arrangements") entered into between any Group
Company and the Inland Revenue pursuant to Section 36 Finance Xxx
0000.
8.2.3 Each Group Company has duly paid all instalments of corporation
tax due and payable prior to Completion within the appropriate
time limits. The calculation of the total liability of a Group
Company for a relevant accounting period starting prior to
Completion in accordance with the provisions of the Corporation
Tax (Instalment Payments) Regulations 1998 (the "CT Regulations")
was made on the basis of information that was complete and
accurate in all material respects at the time that such liability
was required to be calculated for the purposes of the CT
Regulations.
So far as the Warrantors are aware, nothing has been done which
may cause Paragraph 14 of the CT Regulations (anti-avoidance
provision) to apply in relation to a Group Company.
8.2.4 No Group Company has taken any action which has had, or, so far
as the Warrantors are aware, will have, the result of altering,
prejudicing or in any way disturbing any arrangement or agreement
which it has previously had with the Inland Revenue or HM Customs
and Excise or other Taxation Authorities.
8.2.5 There are set out in the Disclosure Letter, with express
reference to this paragraph, full particulars of any agreement,
arrangement or election between any Group Company and the Inland
Revenue as a result of which the relevant Group Company has
failed to comply with its statutory obligations.
8.3 Company Residence
Each Group Company other than Travelbag (Australia) Pty Ltd has been
resident for tax purposes in the United Kingdom and nowhere else at all
times since its incorporation and will be so resident at Completion.
Travelbag (Australia) Pty Ltd has been resident for tax purposes in a
state within the Commonwealth of Australia and nowhere else at all
times since its incorporation and will be so resident at Completion.
51
8.4 Replacement of Business Assets
No claim has been made under Section 152, 153, 154 or 175 TCGA or any
other section which would affect the amount of any gain accruing or
being treated as accruing on a disposal of an asset of any Group
Company.
8.5 Base Values and Costs of Acquisition
So far as the Warrantors are aware, if each of the assets (other than
trading stock) or the plant and machinery taken as a whole of each
Group Company was disposed of for a consideration equal to the book
value of that asset or, as appropriate, plant and machinery in, or
adopted for the purposes of the Audited Accounts, no liability to
corporation tax on chargeable gains or balancing charge under the
Capital Xxxxxxxxxx Xxx 0000 not fully provided for in the Audited
Accounts would arise; and, for the purpose of determining corporation
tax on chargeable gains, there shall be disregarded any relief and
allowances available to the Group Company concerned other than amounts
falling to be deducted under Section 38 TCGA.
8.6 PAYE and National Insurance
Each Group Company has operated the PAYE and National Insurance
contributions systems by making such deductions as are required by law
from all payments made or deemed to be or treated as made by it or on
its behalf, and by duly accounting to the Inland Revenue for all sums
so deducted and for all other amounts for which it is required to
account under the PAYE and National Insurance contributions systems.
8.7 Depreciatory Transactions and Value Shifting
No asset owned by any Group Company has at any time since its
acquisition by that or any other Group Company or any company which has
at any time been a member of a group (as defined from time to time for
any Taxation purpose) of which the Group Company has at any time been a
member been subjected to a reduction in value such that any allowable
loss arising on its disposal is likely to be reduced or eliminated or
that chargeable gain arising on its disposal is likely to be increased.
8.8 Value Added Tax ("VAT")
8.8.1 Since the Balance Sheet Date each Group Company has complied
with all statutory requirements, orders, provisions, directions
or conditions relating to value added tax and all other sales or
turnover taxes in any relevant jurisdiction, including (for the
avoidance of doubt) the terms of any agreement reached with the
Commissioners of HM Customs & Excise.
8.8.2 There are set out in the Disclosure Letter, with express
reference to this paragraph, particulars of:
(i) any land in which a Group Company has an interest and in
relation to which an election has so far as the Warrantors
are aware been made to waive exemption from VAT pursuant to
the provisions of Schedule 10 Value Added Tax Xxx 0000; and
52
(ii) any buildings or civil engineering works owned by any Group
Company and completed for the purposes of Group 1, Schedule
9 Value Added Tax Act 1994 within the last three years.
8.8.3 Each Group Company has not at any time been a member of a Group
Registration made pursuant to Sections 43 to 43C Value Added Tax
Act 1994 (other than a group registration all of the other
members of which were Group Companies).
8.9 Surrenderable Relief
8.9.1 No Group Company is liable (other than to any other Group
Company) to repay in whole or in part any payment for a
Surrenderable Relief received pursuant to any agreement entered
into on or before Completion.
8.9.2 Each Group Company has received all payments (other than
payments due from another Group Company) for the surrender of a
Surrenderable Relief to the extent that such payment was taken
into account as an asset in the Audited Accounts.
For the purposes of this paragraph, "Surrenderable Relief" means any
(i) group relief pursuant to Sections 000-000 XX, (xx) advance
corporation tax surrenderable under Section 000 XX, (xxx) tax refund
surrenderable pursuant to Section 102 Finance Act 1989 (as amended by
regulations), (iv) relievable tax surrenderable pursuant to regulations
made under Section 806H TA, (v) utilisation of losses pursuant to an
election under Section 171A TCGA, and (vi) any other Relief (as defined
in the Tax Deed of Covenant) surrenderable between members of a group
for Taxation purposes under equivalent or similar legislation in any
jurisdiction other than the United Kingdom.
9 Assets (other than the Properties and Intellectual Property)
9.1 Ownership of the Group Companies
The Company, or (where specified) a Group Company, is the sole
beneficial owner of all the issued or allotted shares of the
Subsidiaries listed in Part 4 of Schedule 1 free from all Encumbrances
and all such shares are fully paid or credited as fully paid.
9.2 Subsidiaries, Associates and Branches
No Group Company:
9.2.1 is the holder or beneficial owner of, or has agreed to acquire,
any share or loan capital of any other company (whether
incorporated in the United Kingdom or elsewhere) other than the
Subsidiaries set out in Part 4 of Schedule 1;
9.2.2 has any branch, division, establishment or operations outside
the jurisdiction in which it is incorporated; or
9.2.3 has or has had any associate (that is to say, an entity which
falls to be treated as such for the purposes of FRS 9).
9.3 Title to Assets
9.3.1 All material assets (other than the Properties and Intellectual
Property) of each Group Company, including all debts due to each
Group Company which are included in the Audited Accounts or at
the Balance Sheet Date used or held for the purposes of its
business, were at the Balance Sheet Date the absolute property of
53
such Group Company and (save for those subsequently disposed of
or realised or applied in the ordinary and usual course of
business) all such assets and all assets and debts which have
subsequently been acquired or arisen are the absolute property of
such Group Company and none is the subject of any assignment or
Encumbrance (excepting only liens arising by operation of law in
the normal course of trading) or the subject of any factoring
arrangement, hire purchase, conditional sale or credit sale
agreement.
9.3.2 All such assets are, where capable of possession, in the
possession of or under the control of the relevant Group Company
or the relevant Group Company is entitled to take possession or
control of such asset, and such assets are situated in the United
Kingdom.
9.4 Insurance
9.4.1 A list of all insurance policies held by any Group Company or
any insurance policies in which they are interested and any
outstanding claims under such policies is contained in the
Document Index.
9.4.2 All the assets of each of the Group Companies which are capable
of being insured are insured to the full replacement value
thereof against fire and other risks normally insured against by
companies carrying on similar businesses or owning assets of a
similar nature.
In respect of all such insurances:
(i) all premiums and any related insurance premium taxes have
been duly paid to date;
(ii) all the policies are in full force and effect and, so far as
the Warrantors are aware, no act, omission,
misrepresentation or non-disclosure by or on behalf of any
Group Company has occurred which makes any of these policies
voidable, nor, so far as the Warrantors are aware, have any
circumstances arisen which would render any of these
policies void or unenforceable for illegality or otherwise,
nor, so far as the Warrantors are aware, has there been any
breach of the terms, conditions and warranties of any of the
policies that would entitle insurers to decline to pay all
or any part of any claim made under the policies;
(iii) there are no special or unusual limits, terms, exclusions
or restrictions in any of the policies and no circumstances
exist which are likely to give rise to any increase in
premiums;
(iv) details of all claims made for more than(pound)10,000 during
the past three years are contained in the Disclosure Letter;
and
(v) no claim is outstanding and no circumstances exist which are
likely to give rise to any claim.
9.5 Plant and Machinery etc.
The plant, machinery, vehicles and all other equipment owned or used in
connection with the business of each Group Company excluding the
Information Technology:
9.5.1 are in a satisfactory state of repair and condition and
reasonable working order having regard to their age and use; and
54
9.5.2 have been regularly and properly maintained where such
maintenance is usually required.
10 Intellectual Property and Information Technology
10.1 Definitions
For the purposes of this Warranty 10:
10.1.1 "Business IP" means all rights and interest owned by the Group
Companies (whether as owner, licensee or otherwise) in
Intellectual Property which at or before Completion is used in
the business of the Group Companies;
10.1.2 "Date Compliant" means that neither performance nor
functionality is or will be affected by dates prior to, during,
or after the year 2000 and in particular (but without
limitation):
(i) no value for current date causes or will cause any
interruption in operation;
(ii) date-based functionality behaves and will behave
consistently for dates prior to, during and after the year
2000;
(iii) in all interfaces and data storage, the century in any date
is and will be specified either explicitly or by unambiguous
algorithms or inferencing rules; and
(iv) any leap year will be recognised as a leap year.
10.2 Ownership etc.
All Intellectual Property (whether registered or not) and all pending
applications therefor which have been, are, or are capable of being
used in or in relation to or which are essential for the carrying on of
the business of each Group Company in and to the extent that it is
presently conducted, are (or, where appropriate in the case of pending
applications, will be):
10.2.1 legally and beneficially owned by a Group Company or lawfully
used with the consent of the owner under a licence;
10.2.2 so far as the Warrantors are aware, valid and enforceable;
10.2.3 so far as the Warrantors are aware, not being infringed or
attacked or opposed by any person;
10.2.4 so far as the Warrantors are aware, not subject to any
Encumbrance or any licence or authority in favour of another;
10.2.5 in the case of rights in such Intellectual Property as are
registered or the subject of applications for registration,
listed and briefly described in Part 1.1 of Schedule 6 and all
renewal fees which are due and steps which are required for their
maintenance and protection have been paid and taken; and
10.2.6 in the case of unregistered trade marks which are likely to be
material to any Group Company, listed and briefly described in
Part 1.2 of Schedule 6,
and so far as the Warrantors are aware no claims have been made and so
far as the Warrantors are aware no applications are pending (other than
as listed in Part 1.1 of Schedule 6), which if pursued or granted might
be material to the truth and accuracy of any of the above.
55
10.3 Non-infringement
So far as the Warrantors are aware the processes employed and the
products and services dealt in by each Group Company both now and at
any time within the last two years do and did not use, embody or
infringe any rights or interests of third parties in Intellectual
Property (other than those belonging to or licensed to the Group
Companies) and no claims of infringement of any such rights or
interests have been made by any third party.
10.4 Licences
The several licences and agreements (including all amendments,
novations, supplements or replacements to those licences and
agreements) which are contained in Volumes 3B and 4B as set out in the
index attached to the Disclosure Letter, are in full force and effect,
no notice having been given on either side to terminate them; so far as
the Warrantors are aware, the obligations of all parties have been
fully complied with; and so far as the Warrantors are aware, no
disputes have arisen or are foreseeable in respect thereof; and where
such licences are of such a nature that they could be registered with
the appropriate authorities and where such registration would have the
effect of strengthening the Group Company's rights they have been so
registered.
10.5 Know-how
So far as the Warrantors are aware, there has been and is no misuse of
Know-how by any Group Company and the Vendors and the Warrantors have
not made any disclosure of Know-how to any person other than the
Purchaser except properly and in the ordinary and usual course of
business and on the basis that such disclosure is to be treated as
being of a confidential character.
10.6 No assertion of moral rights
So far as the Warrantors are aware, no moral rights have been asserted
or are likely to be asserted which would affect the use of any of the
Intellectual Property in the business of any Group Company.
10.7 Sufficiency of Business IP
The Business IP comprises all the rights and interests in Intellectual
Property essential for the carrying on of the business of each Group
Company in and to the extent which it is presently conducted.
10.8 Information Technology
10.8.1 In the past twelve months, there have been no bugs or viruses,
logic bombs or other contaminants (including without limitation,
"worms" or "trojan horses") in or failures or breakdowns of any
computer hardware or software or any other Information Technology
equipment used in connection with the business of any Group
Company which have caused any substantial disruption or
interruption in or to the operations or business of any Group
Company.
56
10.8.2 Each Group Company has in place procedures to restrict
unauthorised access, the introduction of viruses, taking and
storing on-site and off-site back-up copies of the software and
data.
10.8.3 So far as the Warrantors are aware, each Group Company owns or
has the right to use (and has the right and information to
support or maintain either by itself or through a third party)
all computer hardware, software or any other Information
Technology necessary for the carrying on of the business of that
Group Company in and to the extent that it is presently
conducted.
10.9 Computer Systems and Date Compliance
The Information Technology and each part of it is fully Date Compliant,
and will not cease to be so.
11 Freehold and Leasehold Property
11.1 The Properties
11.1.1 The Properties comprise all of the premises and land owned,
occupied or otherwise used in connection with the businesses of
the Group Companies or in which the Group Companies have an
interest.
11.1.2 No Group Company has any continuing liability in respect of any
leasehold property other than the Properties.
11.2 Title
In relation to each Property:
11.2.1 The Group Company named in Schedule 5 as owner of the Property
is the legal owner of and beneficially entitled to the whole of
the proceeds of sale of the whole of the relevant legal estate in
the Property.
11.2.2 The Group Company has in its possession all the original
documents of title and other documents and papers relating to the
Property.
11.2.3 Save as may be revealed by the documentation already provided
to the Purchaser's Solicitors and/or by enquiry of Companies
House there are no mortgages, charges (whether legal or equitable
and whether fixed or floating) or debentures, rent charges,
liabilities to maintain roadways, liens (whether for costs or to
an unpaid vendor or otherwise), annuities or other unusual
outgoings, or trusts (whether for securing money or otherwise)
affecting the Property or the proceeds of sale thereof.
11.2.4
(i) Save as may be revealed by the documentation already provided to
the Purchaser's Solicitors the Property is not subject to any
adverse estate, right, interest, covenant, restriction,
stipulation, easement, option, right of pre-emption, wayleave,
licence or other right or informal arrangement in favour of any
third party (whether in the nature of a public or private right
or obligation) nor is there any agreement to give or create any
of the foregoing.
57
(ii) Where the Property is subject to any of the arrangements referred
to in paragraph 11.2.4(i) no Group Company has received written
notice that a breach has occurred of any of the terms thereof.
11.2.5
(i) So far as the Vendor is aware the Property enjoys access to and
egress from roads which prior to the date of this Agreement have
been adopted by the appropriate highway authority and are
maintainable at the public expense either directly or the
Property has the benefit of all necessary easements or rights
over private land on terms which do not entitle any person to
terminate or curtail the same.
(ii) So far as the Vendor is aware the Property drains into a public
sewer and is served by water, electricity and gas utilities. So
far as the Vendor is aware either the pipes, sewers, wires,
cables, conduits and other conducting media serving the Property
connect directly to the mains without passing through land in the
occupation or ownership of a third party or, if they do not, the
facilities, easements or rights necessary for the enjoyment and
present use of the Property are enjoyed on terms which do not
entitle any person to terminate or curtail the same.
11.2.6 There are no outstanding actions, disputes, claims, liabilities
or demands between the Group Company and any third party
affecting the Property or any neighbouring property.
11.3 Town and Country Planning
In relation to each Property so far as the Vendor is aware:
11.3.1 No development at the Property or use of the Property has been
undertaken in breach of the Town and Country Planning legislation
or any other Acts of Parliament or any regulations, bye-laws,
orders, consents or permissions made or given thereunder.
11.3.2 The planning consents and permissions currently affecting the
Property are either unconditional or are subject only to
conditions which are neither unusually onerous, personal nor
temporary and which have been satisfied or observed and performed
up to the date of this Agreement.
11.3.3 There is no agreement affecting the Property made pursuant to
Section 106 of the Town and Country Planning Xxx 0000 or Section
33 of the Local Government (Miscellaneous Provisions) Xxx 0000 or
similar legislation.
11.3.4 There is no pending planning application, planning appeal or
other planning proceedings in respect of the Property or which is
likely to have an adverse effect on the Property.
11.3.5 There is no resolution, proposal, scheme or order, whether
formally adopted or not, for the compulsory acquisition of the
whole or any part of the Property or any access or egress, or for
the alteration, construction or improvement of any road, sub-way,
underpass, footbridge, elevated road, dual carriageway or flyover
upon or adjoining or passing within 200 metres of the Property or
any access or egress.
58
11.3.6 There is no outstanding statutory notice relating to the
Property or any business carried on thereat or the use thereof.
11.3.7
(i) None of the buildings, structures or erections on the Property
has been listed under Sections 1 and 2 of the Planning (Listed
Buildings and Conservation Areas) Xxx 0000 (the "Listed Buildings
Act").
(ii) The local authority has not authorised the service of any
building preservation notice under Section 3 or 4 of the Listed
Buildings Act or any repairs notice under Section 48 of the
Listed Buildings Act in respect of the Property or any building,
structure or erection thereon.
11.3.8 The local authority has not made or resolved to make any noise
abatement zone order under Section 63 of the Control of Pollution
Xxx 0000 for any area which includes the Property.
11.3.9 The Property is not in an urban development area, an
improvement area or an enterprise zone.
11.3.10 There are no Local Land Charges registered in respect of the
Property.
11.4 State and Conditions of the Properties
In relation to each Property where required a fire certificate has been
issued in respect of the Property and no Group Company has received
notice that there has been a breach of the provisions or conditions
contained therein.
11.5 Leasehold Properties
Where the interest of the Group Company in any Property is leasehold
the requisite details have been completed in Part 2 of Schedule 5 and:
11.5.1
(i) Save in relation to matters of repair, decoration or physical
condition there is no material subsisting breach, nor any
material non-observance of any covenant, condition or agreement
contained in the Lease on the part of either the relevant
landlord or the Group Company.
(ii) No landlord has refused to accept rent or made any complaint or
objection which is subsisting and the receipt for the payment of
rent which fell due immediately prior to the date of this
Agreement is unqualified where receipts are normally issued.
11.5.2 No alterations have been made to the Property at the expense of
the Group Company without all necessary consents and approvals.
11.5.3 All steps in rent reviews have been duly taken and no rent
reviews are or should be currently under negotiation or the
subject of a reference to an expert or arbitrator or the Courts.
12 Previous Warranty Claims
59
No notice has been given by the Vendors or by any of the Group
Companies of any breach of any of the warranties or of any claim under
the indemnities contained in the agreement for the sale and purchase of
Bridge the World Travel Services Limited entered into on 13 December
2001 between, inter xxxx, Xxxxxx Bridge and the Company and, so far as
the Warrantors are aware, no breach of any of the warranties, and no
matter giving rise to a claim under the indemnities, as set out in the
agreement, has occurred.
60
Schedule 4
Limitation of Liability under Clause 7.3
13 Interpretation
13.1 In this Schedule:
"Notice" means written notice of a Relevant Claim setting out the
amounts and full details including without limitation the alleged basis
of default or liability.
"Relevant Claim" means a claim in respect of any of the Warranties
and/or the Tax Deed of Covenant.
"Tax Warranties" means those of the warranties contained in Schedule 3
paragraph 8.
13.2 In the event of inconsistency between this Schedule and any other
provisions of the Agreement or of the Tax Deed of Covenant the
provisions of this Schedule shall prevail.
14 Time Limitation
14.1 Notice shall be given by the Purchaser to the Warrantors before 1 May
2004 save in respect of any claim in respect of the Tax Warranties and
the Tax Deed of Covenant other than in respect of VAT which shall be
given before 31 March 2009 and any claim in respect of VAT which shall
be given before 31 March 2006.
14.2 The Warrantors shall cease to be under any liability to the Purchaser
or any of the Group Companies in respect of any Relevant Claim if the
Purchaser has failed to give Notice in accordance with paragraph 2.1.
14.3 The liabilities of the Warrantors shall absolutely determine if
proceedings in respect of a Relevant Claim shall not have been
commenced within six months of the service of Notice.
14.4 Without prejudice to the provisions of paragraphs 2.1 and 2.2 the
Purchaser shall in any event give full details of any matters of which
it becomes aware that are likely to constitute a Relevant Claim as soon
as practicable upon becoming so aware.
15 Financial Limitation
15.1 Subject to paragraphs 3.2, 3.3, 3.4 and 3.5 the liability of the
Warrantors under this Agreement and the Tax Deed of Covenant shall not
in aggregate exceed (pound)30,000,000.
15.2 The Warrantors shall only be liable under this Agreement and the
Tax Deed of Covenant to the extent that the amount of any liability
exceeds in aggregate(pound)900,000.
15.3 The Purchaser shall not be entitled to recover any sums whatsoever in
respect of any Relevant Claim under this Agreement or the Tax Deed of
Covenant in respect of which the amount claimed does not exceed
(pound)25,000 and such claims shall be disregarded for the purposes of
paragraphs 3.1 and 3.2.
15.4 The liability of Xxxxxx Bridge under this Agreement and the Tax Deed of
Covenant shall not in any event exceed(pound)5,596,443.
61
15.5 The liability of Port of Hercules Trustees Limited under this
Agreement and the Tax Deed of Covenant shall not in any event exceed
the amounts specified in paragraph 15.
16 Release from liability
16.1 The Warrantors shall have no liability (or such liability shall be
reduced) in respect of any Relevant Claim in respect of the Warranties:
16.1.1 to the extent that a specific allowance, provision or reserve
in respect of such liability was made or reflected in the Audited
Accounts (including any provision or reserve made in respect of
deferred Tax) or referred to in the notes thereto or to the
extent that payment or discharge of such claim has been taken
into account in the Audited Accounts;
16.1.2 to the extent that such liability arises or is increased as a
result of a change or changes in legislation made after the date
of this Agreement (whether relating to taxation or otherwise) or
the change or withdrawal after the date of this Agreement of any
previously published practice or concession of any tax authority
with retrospective effect;
16.1.3 to the extent that such liability would not have arisen but for
a voluntary act or transaction carried out (other than in
fulfilment of a legally binding commitment entered into by a
Group Company on or before Completion) by the Purchaser or any
Group Company after Completion otherwise than in the ordinary
course of business of such company as such business is conducted
at Completion;
16.1.4 to the extent that recovery of such liability is made under the
Tax Deed of Covenant;
16.1.5 which would not have arisen but for a cessation of trade, or a
change in the nature or conduct of the trade, by a Group Company
on or after the date hereof; and
16.1.6 which would not have arisen but for any re-organisation or
change in ownership of the Group after Completion or a change in
the accounting basis on which any Group Company values its assets
or any other changes in accounting policy or practice of any
member of the Group after Completion.
16.2 In regard to the Tax Warranties the provisions of paragraph 4.1 shall
not apply and the exclusions and limitations in Clause 3 of the Tax
Deed of Covenant shall apply in this Agreement to the Tax Warranties
mutatis mutandis and as though they were set out in this Schedule.
16.3 No Relevant Claim whatever on the part of the Purchaser shall lie in
respect of any breach of the Warranties and/or the Tax Deed of Covenant
if and to the extent that such breach has arisen in respect of any act
or omission stipulated to be carried out or omitted pursuant to the
terms of this Agreement and/or the Tax Deed of Covenant, or otherwise
at the request of or with the consent of the Purchaser.
16.4 No Relevant Claim shall be made to the extent that it relates to loss
of goodwill or possible business.
17 No Double Recovery
The Purchaser shall not be entitled to retain any part of the Retention
(as defined in Schedule 7) nor to recover damages in respect of any
claim for breach of the Warranties and/or of the covenants contained in
62
the Tax Deed of Covenant to the extent that to do so would involve
recovery more than once in respect of the same loss or damage.
18 Mitigation
18.1 Nothing in this schedule or the Agreement shall derogate from the
Purchaser's obligation to mitigate any loss which it suffers in
consequence of a breach of the Warranties.
18.2 The Warrantors shall not be liable in respect of a Relevant Claim to
the extent that the subject of the claim has been or is made good or is
otherwise compensated for without cost to the Purchaser or the Group.
19 Recovery from Third Parties
19.1 Where the Purchaser and/or a Group Company is or is likely to be
entitled to recover from some other person (other than its insurers)
any sum in respect of any matter giving rise to a claim for breach of
the Warranties then the Purchaser shall first procure that reasonable
steps are taken to enforce such recovery.
19.2 If any sum is so recovered then either the amount payable by the
Warrantors in respect of that claim shall be reduced by an amount equal
to the sum so recovered (less the reasonable costs and expenses of
recovering it and any taxation payable by the Purchaser or a Group
Company as a result of its receipt) or (if an amount shall already have
been paid by any of the Warrantors in respect of that claim) there
shall be repaid to the Warrantors an amount equal to the amount so
recovered (less then reasonable costs and expenses of its recovery and
any taxation payable by the Purchaser or a Group Company as a result of
its receipt) or (if less) the amount of such payment.
19.3 Without prejudice to the generality of paragraphs 7.1 and 7.2 above,
the provisions thereof shall apply where the Purchaser and/or the Group
is entitled to recover from its insurers any sum in respect of any
matter giving rise to a claim under the Warranties save to the extent
that to do so would prejudice the operation of such insurance.
20 Effect of Taxation
The amount of any claim for breach of the Warranties shall take into
account the amount of any relief from Taxation arising by virtue of the
loss or damage in respect of which the claim was made.
21 Qualification of Warranties
The Purchaser acknowledges that notwithstanding the express terms of
the Warranties it is not relying on, nor will it hereafter rely on, any
statement, representation, warranty, or forecast in relation to future
or maintainable profits (or losses) or future trading of the Company.
22 Conduct of Relevant Claims
22.1 The Purchaser shall and shall procure that the Group shall inter alia:
63
22.1.1 if so required by the Warrantors, take all reasonable steps to
avoid, resist, appeal, compromise or defend any Relevant Claim
and any adjudication in respect thereof and for this purpose take
all appropriate proceedings in the name of the Group (but subject
to the Group being indemnified by the Warrantors against all
losses, charges, costs, damages and expenses that may be incurred
in connection therewith);
22.1.2 at all reasonable times allow the Warrantors and their agents
access to and to inspect and take copies of all necessary books
and records of the Group subject always to keeping the same
confidential other than necessary disclosures in connection with
any such action or Relevant Claim;
22.1.3 require the personnel of the Group to provide statements and
proofs of evidence, and to attend at any trial or hearing to give
evidence or otherwise, and to provide like assistance to enable
the Warrantors to avoid, resist, appeal, compromise or defend any
Relevant Claim such assistance to be provided without charge to
the Purchaser; and
22.1.4 take (or procure that the Group shall take) all reasonable
steps necessary to mitigate any loss in relation to any such
action or Relevant Claim.
22.2 The Purchaser shall procure that the Group shall not admit liability in
respect of or compromise or settle any matter which might constitute a
breach of the Warranties without the prior written consent of the
Warrantors such consent not to be unreasonably withheld or delayed.
22.3 The provisions of paragraphs 10.1 and 10.2 shall not apply to the Tax
Deed of Covenant nor to the Tax Warranties in respect of which the
provisions of Clause 7 of the Tax Deed of Covenant shall apply.
23 Rescission
Except as provided under Clauses 4 and 6 of the Agreement the Purchaser
hereby irrevocably waives all rights to rescind this Agreement whether
such rights arise under statute, law or otherwise on any grounds
including grounds that a representation made or deemed to be made in
this Agreement or in the negotiations preceding this Agreement was
untrue or incorrect in any respect and each of the Warrantors and the
Purchaser represents to the Warrantors that the foregoing provisions of
this paragraph in the context of the transactions contemplated by this
Agreement are reasonable.
24 Contingent Claims
If a Relevant Claim arises by reason of some liability of any member of
the Group which, at the time of such breach or claim is notified to the
Warrantors, is contingent only, then the Warrantors shall not be under
any obligation to make any payment in respect of such breach or claim
unless and until such liability ceases to be contingent.
25 Purchaser's Undertaking
25.1 The Purchaser warrants to the Warrantors that the Purchaser having been
given an opportunity to carry out an investigation into the business of
the Group neither it nor its agents are aware of any matter or thing as
64
at the date of this Agreement which is inconsistent with any of the
Warranties.
25.2 The Purchaser warrants to the Vendors as follows:
25.2.1 the Circular in the agreed terms complies with Part VI of the
Financial Services and Markets Xxx 0000 and the Listing Rules of
the United Kingdom Listing Authority and all statements of fact
contained in the Circular are to the best of the knowledge and
belief of the Purchaser true and accurate in all material
respects true and accurate and in accordance with the facts and
are not misleading in any material respect, and all statements,
forecasts, estimates and expressions of opinion, intention and
expectation expressed in the Circular are made on reasonable
grounds and truly and honestly held and fairly based; and
25.2.2 there is no information known to the Purchaser or which on
reasonable enquiry could have been known to the Purchaser which
has not been disclosed in the Circular, the omission of which
would, in any material respect, make any statement therein
misleading or be likely to affect the import of any information
contained therein or which, in the context of the Placing or the
issue of the Consideration Shares, is material for disclosure to
a prospective purchaser or subscriber or allottee of any of the
Placing Shares or the Consideration Shares.
25.3 If the Warrantors at any time after the date of this Agreement wish to
take out an insurance against liability under the relevant provision,
the Purchaser undertakes to provide such information as the prospective
insurer may reasonably require before effecting such insurance.
26 Cancellation of Consideration Shares
Any amount due to the Purchaser from any of the Warrantors may be
satisfied wholly or partly at the election of the Warrantors by the
transfer to the Purchaser for nil consideration of such number of
Consideration Shares which at the Issue Price are equivalent to the
amount due or the amount thereof which the Warrantors or any particular
Warrantor wishes to satisfy in this manner, to the extent that the
Purchaser can lawfully undertake such action in accordance with Part V
of the Companies Xxx 0000.
27 Restriction on Distributions by Trustee Warrantor
27.1 The liability of POH under the Warranties is limited to(pound)
24,403,457 less fees and costs properly chargeable against the
capital of the Xxxxx Xxxx No.2 Settlement (the "Trust").
27.2 POH agrees with the Purchaser that it will not distribute capital or
income of the trust if this would reduce the assets of the Trust below
(pound)24,403,457, other than for the payment of costs and fees, whilst
a claim under the Warranties is outstanding or prior to the expiration
of the time limit for making a claim, unless an undertaking in favour
of the Purchaser is obtained from a beneficiary, in a form satisfactory
to the Purchaser (such approval not to be unreasonably withheld or
delayed), by which the beneficiary accepts liability in substitution
for POH to the extent of the value of the distribution.
27.3 PW agrees with the Purchaser to procure that POH complies with its
obligations under paragraph 15.2.
65
Schedule 5
Properties
Part 1
Particulars of the Freehold Properties
Name of Company Address of Property Title Number
Owning the Property (if registered)
Travelbag Plc Xxxxxxx House, Amery Street, Alton, HP 353196
Hampshire
Travelbag Plc 3 and 0 Xxxx Xxxxxx, Xxxxx, Xxxxxxxxx HP 397223
Travelbag Plc 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 000000
Xxxxxxxx
Travelbag Plc 0 Xxxxx Xxxx, Xxxxxx Xxxx, Xxxxx, XX 00000
Hampshire
Travelbag Plc 8, 10, 12 & 00 Xxxx Xxxxxx, Xxxxx, XX 000000 (as to no.10 only)
Hampshire
Part 2
Leasehold Properties - Particulars of Leases
Address of Property 373,374 and 000 Xxx Xxxxxx, Xxxxxx XX0
Original Parties to Lease Trusthouse Forte Albany Hotels Limited (1)
Travelbag plc (2)
Date of Lease 23 May 1990
Current tenant and guarantor Travelbag plc; no guarantor
Term 15 years from 23 May 1990
Current rent (pound)230,000 with effect from 23 May 2000
Address of Property Ground Floor, Basement and Sub-basement Premises at 00
Xxxxxx Xxxxxx, Xxxxxx
Original Parties to Lease Barclays Bank Limited (1) Travelbag plc (2)
Date of Lease 4 November 1996
Current tenant and guarantor Travelbag plc; no guarantor
Term 7 years, 10 months from 4 November 1996 until 28
September 2004
Current rent (pound)225,000 per annum
66
Address of Property 0xx Xxxxx, 00, 00 & 00 Xxxxxx Xxxxxx & 0-00 Xxxxxxxxxx
Xxxxxx, Xxxxxx
Original Parties to Lease Barclays Bank Limited (1) Travelbag plc (2)
Date of Lease 4 November 1996
Current tenant and guarantor Travelbag plc; no guarantor
Term 4 November 1996 until 15 March 2006
Current rent (pound)95,000 per annum
Address of Property Ground Floor Premises at 3 & 0 Xxxxxxxxxx Xxxxxx, Xxxxxx
Original Parties to Lease Barclays Bank Limited (1) Travelbag plc (2)
Date of Lease 4 November 1996
Current tenant and guarantor Travelbag plc; no guarantor
Term 4 November 1996 until 22 March 2006
Current rent (pound)25,000
Address of Property Xxxxx Xxxxx, 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx
Original Parties to Lease Leepark Investments Limited (1) Eurocamp Travel Limited
(2)
Date of Lease 9 February 1990
Current tenant and guarantor Travelbag plc; no guarantor
Term 25 years from 29 September 1989
Current rent (pound)31,000 per annum as of 29 September 1999
Address of Property 26 & 00 Xxxxx Xxxx, Xxxxxxxx
Original Parties to Lease The Norwich Union Life and Pensions Limited (1)
Travelbag plc (2)
67
Date of Lease 31 July 2000
Current tenant and guarantor Travelbag plc; no guarantor
Term 15 years from 29 September 1999
Current rent (pound)80,800 as at 29 September 1999
Address of Property Xxxx 00, Xxxxxx Xxxx, Xxxxx, Xxxxxxxxx
Original Parties to Lease International Thomson Publishing Services Limited (1)
Travelbag plc (2)
Date of Lease 11 October 1996
Current tenant and guarantor Travelbag plc; no guarantor
Term 21 August 1996 until 21 June 2006
Current rent (pound)55,000 per annum
Address of Property Part of 00 Xx Xxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxxxxx
Original Parties to Lease Xxxxxxxxx UK Limited (1) Travelbag plc (2)
Date of Lease 1 August 2002
Current tenant and guarantor Travelbag plc; no guarantor
Term 30 July 2002 to 28 October 2014
Current rent (pound)40,000 per annum
Address of Property 00/00 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx
Original Parties to Lease Norwich Union Life & Pensions Limited (1)
Travelbag plc (2)
Date of Lease 20 October 2000
Current tenant and guarantor Travelbag plc; no guarantor
Term 15 years from 29 September 2000
Current rent (pound)48,000 per annum
68
Address of Property 00/00 Xxxxxxxx & 000 Xxxx Xxxxxx, Xxxxx
Original Parties to Lease Ikefield Limited (1) Peel Street Pharmacy Limited (2)
Date of Lease 14 September 1993
Current tenant and guarantor Travelbag plc; no guarantor
Term 15 years from 14 September 1993
Current rent (pound)117,950 per annum
Address of Property Ground & First Floors, 5 The Poultry, Nottingham
Original Parties to Lease Trustees of Xxxxxxxx Xxxxx Retirement Fund (1) Travelbag
plc (2)
Date of Lease 23 July 2001
Current tenant and guarantor Travelbag plc; no guarantor
Term 15 years from 10 July 2001
Current rent (pound)33,000 per annum
Address of Property Shop Xxxx 0 & Xxxx X, 0 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx
Xxxxxx
Original Parties to Lease Church Commissioners for England (1) Xxxxxxx'x Bookshops
Limited (2) and Associated Book Publishers (3)
Date of Lease 2 May 1985
Current tenant and guarantor Travelbag Holdings Limited as tenant with Travelbag plc
as guarantor
Term 25 years from 24 June 1984
Current rent (pound)100,000 per annum
Address of Property 00 Xxxx Xxxxxx Xxxxxxxxxx
Original Parties to Lease Chairbyte Limited & Globeforge Limited (1) Travelbag plc
(2) Travelbag Holdings Limited (3)
Date of Lease 11 November 2002
Current tenant and guarantor Current tenant Travelbag plc and current guarantor
Travelbag Holdings Limited
Term 15 years from 11 November 2002
Current rent (pound)50,000 per annum
69
Address of Property 00 Xxxxx Xxxxxxxx Xxxx, Xxxxxxxxx Xxxxx, Xxxx
Original Parties to Lease X.X. Xxxxx & X.X. Xxxxxxx (1) Travelbag Holdings Limited
(2)
Date of Lease 18 December 2002
Current tenant and guarantor Travelbag Holdings Limited; no guarantor
Term 15 years from 20 December 2002
Current rent (pound)42,000 per annum
Address of Property 00/00 Xxxxx Xxxx Xxxx & 0 Xxxxxxxxx Xxxxx, Xxxxxx
Original Parties to Lease London Borough of Camden (1) Bridge the World Travel
Limited (2) and Xxxxxx Bridge (3)
Date of Lease 8 February 1999
Current tenant and guarantor Bridge the World Travel Service Limited - tenant: Xxxxxx
Bridge - guarantor
Term 15 years from 8 February 1999
Current rent (pound)127,500 per annum
Address of Property 0/0 Xxxxxxxxx Xxxxxx, Xxxxxx
Original Parties to Lease Xxxxx Xxxx (1) Xxxxx Xxxxxxx (2)
Date of Lease 12 May 1986
Current tenant and guarantor Current tenant Bridge the World Travel Service Limited,
current guarantor Xxxxxx Bridge and Xxxxx Xxxxx Xxx
Xxxxxx
Term 20 years from 29 September 1985
Current rent (pound)18,000 per annum as from 29 September 2000
70
Address of Property 00 Xxxxx Xxxx Xxxx, Xxxxxx
Original Parties to Lease M.A. Xxxxx (1) Bridge the World Travel Service Limited
(2) and J Bridge & B.G.J Xxxxxx (3)
Date of Lease 12 February 1998
Currenttenant and guarantor Current tenant Bridge the World Travel
Centre Limited and current
guarantor J Bridge and BGJ
Xxxxxx
Term 20 years from 29 September 1993
Current rent (pound)25,000 per annum with effect from 29 September 2003
Address of Property Ground and Xxxxx Xxxxxx Xxxxxx, 0 Xxxxxx Xxxxx, Xxxxxx X0
Original Parties to Lease Capital & Counties plc (1) Bridge the World Travel
Service Limited (2)
Date of Lease 1 June 1998
Current tenant and guarantor Bridge the World Travel Service Limited; no guarantor
Term 20 years from 25 March 1988
Current rent (pound)64,000 per annum with effect from 25 March 1998
71
Address of Property 00 Xxxx Xxxxxx, Xxxxx, Xxxxxxxxx
Original Parties to Lease The Ancient Order of Foresters (1) Travelbag plc (2)
Date of Lease 28 September 1999
Current tenant and guarantor Travelbag plc; no guarantor
Term 3 years from 29 September 1999
Current rent (pound)12,000 per annum
Address of Property 00X Xxxx Xxxxxx, Xxxxx, Xxxxxxxxx
Original Parties to Lease The Ancient Order of Foresters (1) Travelbag plc (2)
Date of Lease 28 September 1999
Current tenant and guarantor Travelbag plc; no guarantor
Term 3 years from 29 September 1999
Current rent (pound)3,000 per annum
Address of Property 00X Xxxx Xxxxxx, Xxxxx, Xxxxxxxxx
Original Parties to Lease The Xxxxx Health Consultancy (1) Travelbag plc (2)
Date of Lease 6 January 1999 (By letter)
Current tenant and guarantor Travelbag plc; no guarantor
Term There is no express term
Current rent (pound)8,850 per annum
Address of Property Suite 00, Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxx
Original Parties to Lease Kaybank Plaza Suites (1) Travelbag (Australia) Pty
Limited (2)
Date of Lease 6 February 2002
Current tenant and guarantor Travelbag (Australia) Pty Limited; no guarantor
Term Monthly w.e.f. 6 February 2002
Current rent Aus $738.81 p.c.m.
72
Part 3
Particulars of Leases and Licences to which the Properties are subject
Address of Property 0/0 Xxxxxxxxx Xxxxxx, Xxxxxx XX0
Part of Property affected All
Date of Lease or Licence N/A - undocumented occupation
Original parties to Lease or Licence N/A - undocumented occupation
Current tenant/licensee and guarantors Knightforce UK Limited
Term N/A
Current rent/licence fee (pound)2092.68 pcm
Address of Property 0 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx Xxxxxx
Part of Property affected Flat B
Date of Lease or Licence 13 February 2002
Original parties to Lease or Licence Xxxx Xxxxxxx (Bookshops) Limited (1) M Wise & T Xxxxx (2)
Current tenant/licensee and guarantors Xxxx Xxxx and Xxxx Xxxxx
Term 1 year from 1 December 2001
Current rent/licence fee (pound)575 p.c.m.
73
Schedule 6
Intellectual Property
Part 1
1.1 Intellectual Property Rights (Registered)
UK Trade Xxxx Applications
LITTLE GEMS Number 2274490
UK Trade Xxxx Registrations:
BRIDGE THE WORLD: Number 2274444
TRAVELBAG PLUS: Number 2142576
TRAVELBAG: Number 1300253
SWAGMAN: Number 1300251
Domain Name Registrations:
xxxxxxxxxxxxxx.xxx
xxxxxx-xxx-xxxxx.xxx
xxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxx.xx.xx
xxxxxx-xxx-xxxxx.xx.xx
xxxxxxxxxxxxxxxxxxxx.xxx
xxxxxxxxx.xx.xx
x-xxxxxxxxx.xx.xx
xxxxxxxxxxxxx.xx.xx
xxxxxxxxx-xxxxxxxxxx.xxx
1.2 Intellectual Property Rights (Unregistered Trade Marks)
The following trade marks in jurisdictions outside the United Kingdom:
TRAVELBAG
TRAVELBAG PLUS
BRIDGE THE WORLD
TRAVELBAG ADVENTURES
LITTLE GEMS
GRASS ROOTS
The following trade marks in the United Kingdom:
TRAVELBAG ADVENTURES
74
The following trade marks in jurisdictions outside the United Kingdom:
GRASS ROOTS
75
Schedule 7
28 Definitions
For the purposes of this Schedule:
28.1 "Bonus Payment" means the actual cost to the relevant Group Company
(including PAYE and Employers National Insurance) of the amounts paid
to certain employees of the Group under the terms of the Bonus Schemes
on or about Completion as a consequence of the sale of the Shares;
28.2 "Bonus Schemes" mean the Travelbag Executive Bonus Arrangements, the
BTW Executive Bonus and the Travelbag Adventures Scheme as more
particularly referred to in the Disclosure Letter under the provisions
of disclosure 4.1.12 of paragraph 3.
28.3 "Confirmation" means the confirmation of the Tax Deduction as
determined under the provisions of paragraph 5 of this Schedule;
28.4 "Expert" means a person appointed in accordance with paragraph 13 of
this Schedule;
28.5 "Interest Payment Date" means 31 March, 30 June, 30 September
and 31 December in each year (or if any such day is not a Business Day,
the next succeeding Business Day);
28.6 "LIBOR" means the British Bankers Association Interest Settlement Rate
for three months sterling deposits displayed on the appropriate page of
the Reuters Screen as of 11.00a.m. on the first day of each period in
respect of which interest is payable under paragraph 3 of this
Schedule;
28.7 "Retention" means the sum of(pound)2,029,221 being the sum retained
from POH on Completion under the provisions of clause 3.1.1(ii) of
this Agreement;
28.8 "Tax Deduction" means a deduction for Corporation Tax purposes
in respect of all or part of the Bonus Payment by the relevant Group
Company or any other member of the Purchaser's Group;
28.9 "Trigger Event" means Confirmation being given by the Inland Revenue of
the Tax Deduction.
29 Payment of Retention
Subject to paragraph 4 below, below the Retention shall be paid by the
Purchaser to POH in the following manner:
30 September 2004: (pound)500,000
30 September 2005: (pound)500,000
30 September 2006: (pound)500,000
30 September 2007: (pound)529,221
--------------
(pound)2,029,221
76
30 Interest
Interest will accrue on the unpaid amount of the Retention from 30
September 2003 at LIBOR, and (subject to paragraph 4 below) become
payable on an Interest Payment Date. Interest accrued but unpaid shall
be compounded at annual rests on the basis of a 365 day year.
31 Trigger Event
No payment shall be made under paragraphs 2 and 3 of this Schedule,
until the occurrence of a Trigger Event. If a Trigger Event occurs
after any of the dates specified in paragraph 2 the amount that would
otherwise have been due on the specified dates will be paid on the next
Interest Payment Date following the Trigger Event together with
interest accrued to that date under the provisions of paragraph 3.
32 Confirmation of Tax Deduction
32.1 Confirmation is deemed to be given by the Inland Revenue (including any
other competent taxing authority) if:
32.1.1 at any time, the Inland Revenue confirm the Tax Deduction may
be treated as a trading expense for Corporation Tax purposes; or
32.1.2 on or before 31 March 2005, the Inland Revenue are deemed to
accept any tax computations of the relevant Group Companies by
not initiating an enquiry nor issuing an assessment, amendment or
objection in respect of the Tax Deduction; or
32.1.3 at any time after 31 March 2005, it is reasonable to believe
that the Inland Revenue will accept the Tax Deduction. In the
event of a dispute as to such belief the provisions of paragraph
13 below shall apply.
33 Part Allowance
33.1 To the extent that the Confirmation of the Tax Deduction is given in
respect of part only of the Bonus Payment, that part shall be paid with
accrued interest from the Retention in accordance with the foregoing
provisions mutatis mutandis.
33.2 Any balance of the Retention after the application of paragraph 6.1
will otherwise remain payable (to the extent applicable)
in accordance with the terms of this Schedule.
34 Tax Computations and Costs
34.1 The Purchaser will use its reasonable endeavours to procure the Tax
Deduction and the occurrence of the Trigger Event and will do all acts
or things reasonably required by POH to procure the Tax Deduction. It
will not knowingly do or permit any act or omission which would
otherwise prejudice delay or restrict the Tax Deduction or the Trigger
Event.
34.2 Clause 5 of the Tax Deed of Covenant shall apply in relation to
the corporation tax affairs of the Group in respect of
periods ending on or before 31 March 2003.
77
34.3 The Purchaser shall without limitation procure that:
34.3.1 The next accounting reference date for the Group will remain 31
March 2003;
34.3.2 Ernst & Young shall be retained generally in regard to the Tax
Deduction and shall, in addition to the matters set out in Clause
5 of the Tax Deed of Covenant, deal with all appeals negotiations
and assessment which in any way relate to the Tax Deduction.
34.3.3 Ernst & Young are given all reasonable opportunities to review
and comment upon the presentation of the Bonus Schemes and the
Bonus Payment in the accounts for the accounting reference period
ending 31 March 2003.
34.4 The costs of Ernst & Young in respect of all matters (including tax
computations and returns) which arise in regard to any accounting
reference period of the Group ending on or before 31 March 2002 shall
be met by the Group.
34.5 The costs of Ernst & Young in respect of the matters referred to under
paragraph 7.2 shall, to the extent they relate to matters occurring in
the accounting reference period ending 31 March 2003 be met by POH.
34.6 The cost of the auditors for the accounting reference period ending 31
March 2003 shall be met by the Group and the Purchaser shall meet the
costs of any adviser it retains on its own behalf or on behalf of the
Group in connection with paragraph 7.2, save as provided in paragraph
7.4.
35 Interaction with Tax Deed
The provisions of this Schedule shall prevail in the event of any
inconsistency between the Tax Deed of Covenant, this Schedule and any
other provisions of this Agreement provided where there is no such
inconsistency the provisions of the Tax Deed of Covenant in relation to
the conduct of claims (clause 6) shall apply to all matters relating to
the Tax Deduction.
36 Acknowledgement
The Purchaser acknowledges that payments due to the Purchaser under
this Schedule are not dependent in any way or to any extent upon the
ability of the Purchaser's Group to utilise the Tax Deduction at any
time.
37 Interaction with Schedule 4
37.1 Prior to payment in full of the Retention the limit on the liability
of POH in paragraphs 3.1 and 15 of Schedule 4 will be reduced by the
amount of the Retention outstanding from time to time.
37.2 For the purposes of paragraph 3.2 of Schedule 4 any amounts
retained deducted or set-off under this Schedule shall be
disregarded.
78
38 Set-Off
Any amount payable to POH under this Schedule shall be paid on the due
date without any deduction (save as may be required by law), set-off,
cross claim of whatsoever nature save:
38.1 in the event of fraud;
38.2 to the extent that POH has otherwise agreed.
39 Accelerated Repayment
39.1 After the Trigger Date POH may by written notice demand from the
Purchaser immediate payment of the Retention together with
accrued interest if:
39.1.1 the Purchaser fails to pay any sum payable to POH under the
terms of this Agreement;
39.1.2 if the Purchaser or any third party acting on behalf of the
Purchaser or any of the Group Companies fails to observe or
perform any obligations under this Schedule which POH reasonably
considers to be material and such failure or breach if remediable
is not remedied within fourteen days after the date on which POH
give notice to the Purchaser requiring such remedy;
39.1.3 if any material financial obligations of the Purchaser's Group
become prematurely payable or any creditor in respect thereof
becomes entitled to declare any such obligation prematurely
payable or any such obligation is not paid when due or any
security therefore becomes enforceable and the same is actually
demanded or called or any enforcement steps are taken;
39.1.4 if a receiver or administrative receiver or manager is
appointed of or in relation to the Purchaser's Group or the whole
or any substantial part of its undertaking assets rights or
revenues;
39.1.5 if an encumbrancer takes possession of or a distress execution
sequestration or process is levied or enforced upon the whole or
any substantial part of any company in the Purchaser's Group
undertaking assets rights or revenues;
39.1.6 if any member of the Purchaser's Group ceases to carry on the
whole or a substantial part of its business or stop or suspend
payment of its debts or proposes or enters into any composition
scheme compromise or arrangement with or for the benefit of
creditors generally or any class of them;
39.1.7 if an application is made or a petition is presented by any
person to any Court for an administration order in relation to
any material company in the Purchaser's Group;
39.1.8 if any member of the Purchaser's Group is unable to pay its
debts as they fall due or are deemed unable to pay its debts
under Section 123(1) of the Insolvency Xxx 0000 (other than under
Section 123(i)(a) thereof);
39.1.9 if any material member of the Purchaser's Group becomes
insolvent or any petition is presented by any person and not
withdrawn or discharged within 14 days or any order is made by
any Court or any meeting is convened for the purpose of
79
considering a resolution or any resolution is passed for their
winding up liquidation or dissolution. This provision shall not
apply in relation to Rejsegalleriet A/S nor Prittlewell Pty.
Limited.
40 Expert
40.1 To the extent there is any disagreement between POH and the Purchaser
as to whether a Tax Deduction has been confirmed or is otherwise
available, or the extent, or any other issue of dispute arises in
connection with this Schedule then either party may refer the matter to
the Expert.
40.2 If POH and the Purchaser are unable to agree on an Expert within seven
days of either party serving the name of a suggested person on the
other, the Expert will be Tax Counsel of at least ten years call repute
nominated at the request of either party by the President of the Law
Society of England and Wales.
40.3 The Expert is required to prepare a written decision and give notice
(including a copy) of the decision to the parties within a maximum of
two months of the matter being referred to the Expert.
40.4 POH and the Purchaser are entitled to make submissions to the Expert
and will provide (or procure that others provide) the Expert with such
assistance and documents as the Expert reasonably requires for the
purpose of reaching a decision.
40.5 POH and the Purchaser must supply each other with all information (and
the Purchaser must procure the Group supplies all necessary
information) and give each other access to all documentation and
personnel as the other party reasonably requires to make a submission
under this clause.
40.6 The Expert will act as an Expert and not as an arbitrator and the
Expert's written decision on the matter referred is, save
for manifest error, final and binding.
40.7 The costs of any reference to an Expert are to be borne by the
parties in the manner the Expert provides or otherwise the
parties shall share the cost equally.
80
Table of Contents
Clause Page
1 Interpretation........................................................................................1
2 Agreement to Sell the Shares..........................................................................6
3 Consideration.........................................................................................6
4 Conditions............................................................................................8
5 Action Pending Completion............................................................................10
6 Completion...........................................................................................13
7 Warranties...........................................................................................14
8 Restrictions.........................................................................................16
9 Pensions.............................................................................................18
10 Whole Agreement and Remedies.........................................................................18
11 Other Provisions.....................................................................................18
Schedule 1..............................................................27
Schedule 2 Completion Obligations.......................................37
Schedule 3 Warranties given under Clause 7..............................39
Schedule 4 Limitation of Liability under Clause 7.3.....................61
Schedule 5 Properties...................................................66
Schedule 6 Intellectual Property........................................74
Schedule 7..............................................................76
