EXHIBIT 6
THIS AGREEMENT is made on 20 December 2002
BETWEEN:
1. REGUS PLC of 3000 Hillswood Drive, Hillswood Business Park, Chertsey,
Surrey KT16 0RS (registered in England No. 3548821) ("PLC");
2. REGUS MANAGEMENT LIMITED of 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx Business
Park, Chertsey, Surrey KT16 0RS (registered in England No. 2307313)
("RML");
3. REGUS HOLDINGS (UK) LIMITED of 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx Business
Park, Chertsey, Surrey KT16 0RS (registered in England No. 4560622)
("Newco"); and
4. XXX 2002 LIMITED of 00 Xxxxxxxxxxx, Xxxxxx XX0X 0XX (registered in
England No. 4619936) (the "Purchaser").
WHEREAS:
(A) RML has agreed to sell and the Purchaser has agreed to purchase and pay
for the Sale Shares (as defined in this agreement).
(B) Newco has agreed to issue and the Purchaser has agreed to subscribe for
and pay for the New Shares (as defined in this agreement).
(C) The sale and purchase of the Sale Shares and subscription for and issue
of the New Shares referred to in Recitals A and B respectively will
take place on the terms and subject to the conditions of this
agreement. In recognition that the value of the Sale Shares may be
affected by future performance of Newco, RML and the Purchaser have
provided in clause 4.2(D) for the payment of additional consideration
to RML for the Sale Shares in the circumstances, and subject to the
terms and conditions, set out therein.
(D) PLC has agreed to guarantee the obligations of RML under this agreement
on the terms set out in clause 11 (PLC Guarantee) and to undertake
other obligations contained herein.
NOW IT IS HEREBY AGREED as follows:
1. Definitions and Interpretation
1.1 In this agreement and the Schedules to it:
"Accounts" means the audited financial statements
of each of the UK Subsidiaries,
prepared in accordance with the
Companies Acts, for the accounting
reference period ended on the Accounts
Date which financial statements
comprise a balance sheet, profit and
loss account, notes, and auditors' and
directors' reports;
1
"Accounts Date" means 31 December, 2001;
"Blocked Account" means a bank account opened
with a reputable bank (other than
Newco's bankers), nominated jointly by
the Purchaser and RML, in the name of
Newco prior to Completion in respect
of which an irrevocable instruction
shall have been delivered prohibiting
all debits and credits until 2 January
2003;
"Business Day" means a day (other than a Saturday or a
Sunday) on which banks are open for
business (other than solely for trading
and settlement in euro) in London;
"Business Information" means all information, know-how and
records (whether or not confidential
and in whatever form held) including
(without limitation) all:
(i) formulas, designs,
specifications, drawings,
data, manuals and
instructions;
(ii) customer lists, sales,
marketing and promotional
information;
(iii) business plans and forecasts;
and
(iv) technical or other expertise
proprietary to any UK Subsidiary;
"Companies Acts" means the Companies Xxx 0000, the
Companies Consolidation
(Consequential Provisions) Xxx 0000,
the Companies Xxx 0000 and Part V of
the Criminal Justice Xxx 0000;
"Completion" means completion of the sale and
purchase of the Sale Shares and
subscription for and issue of the
New Shares under this agreement;
"Completion Date" means 30 December 2002;
"Completion Net Liabilities" has the meaning given to it in
Schedule 6 (Completion Net
Liabilities);
"Deferred Consideration" means that part of the consideration
payable by the Purchaser for the Sale
Shares to be satisfied following
Completion in accordance with clause 4;
2
"Disclosure Letter" means the letter of the same date as
this agreement written by RML to the
Purchaser for the purposes of clause
7.2 and delivered to the Purchaser or
the Purchaser's Solicitors;
"Earn Out Period" means the period referred to in
clause 4.9;
"EBITDA" means profit before interest, tax,
depreciation, amortisation and
management fees, as calculated and
adjusted pursuant to Schedule 5
(Calculation of EBITDA);
"Escrow Account" has the meaning given to it in
clause 16.5;
"Estimated Completion Net means a sum of(pound)47,900,000;
Liabilities"
"Excluded Warranties" means the Warranties set out in
paragraph 1, paragraph 2, paragraph 27
and paragraph 28 of Schedule 1 (RML's
Warranties);
"Group" means:
(A) in relation to any Remaining
Regus Group Shareholder, its
subsidiaries and subsidiary
undertakings or (where it has
a holding company) that
holding company and the
subsidiaries and subsidiary
undertakings of that holding
company; and
(B) in relation to the Purchaser,
its subsidiaries and
subsidiary undertakings,
Silverstone Limited and its
subsidiaries and subsidiary
undertakings, and any holding
company of any of the
foregoing (other than Alchemy
Partners (Guernsey) Limited);
"ICTA 1988" means the Income and Corporation
Taxes Xxx 0000;
"Income Distribution" the distribution of income by Newco
to its shareholders by way of
dividend or otherwise;
"Intellectual Property Rights" means patents, trade marks, rights in
designs, copyrights and database rights
(whether or not any of these is
registered and including applications
for registration of any such thing and
any other rights of a similar nature or
having an equivalent or similar
effect);
"Intra-Group Loan Repayments" the repayments of the intra-group
loans referred to in the Loan
Repayment Table;
3
"IT" means computer hardware, software
and networks;
"Letter of Instruction" means the letter of instruction
referred to in clause 16.5;
"LIBOR" the London Inter-Bank Offered Rate
quoted by Barclays Bank PLC (or,
failing which, such other leading
clearing bank in London as RML may
nominate) to leading banks in the
London Inter-Bank Sterling Market for
sterling deposits of an amount of
(pound)1,000,000 for a period of six
months;
"Listing" means the listing of Newco's entire
issued share capital on a recognised
investment exchange in respect of
which a recognition order has been
made under the Financial Services and
Markets Xxx 0000, section 290;
"Loan Repayment Table" the schedule in the form agreed
between and initialled by RML and the
Purchaser;
"Management Accounts" means the unaudited management accounts
of each UK Subsidiary, for the period
from the Accounts Date to 30 September,
2002, a copy of each of which is
annexed to the Disclosure Letter;
"New Shares" means 59,777 fully paid ordinary
shares in Newco with a par value of
1p per share;
"November Management Accounts" means the unaudited management
accounts of each UK Subsidiary for the
months of October and November 2002;
"Operational Committee" has the meaning given to it in the
Shareholders Agreement;
"Outstanding Claim" has the meaning given to it in clause
16.3;
"Pre-Ratchet Price" the Realisation Proceeds divided by
the number of Ratchet Shares;
"Prescribed Value" has the meaning given to it in the
Shareholders Agreement;
"Property" or "Properties" means freehold, leasehold or other
immovable property in any part of
the world;
"Property Owner" means, in relation to any Relevant
Property, the person referred to as
owner, lessee, or sublessee (as the
case may be) in Schedule 8 (Schedule of
Properties);
4
"Purchaser" means the Purchaser and, for the
purposes of clause 4.2(D) only shall
include all members of the
Purchaser's Group;
"Purchaser Cost" means, in respect of Ratchet Shares
held by the Purchaser, the aggregate
of:
(i) the amount subscribed and
paid up by the Purchaser on
Completion Date in respect
of Ratchet Shares held by
the Purchaser;
(ii) the sums paid by the
Purchaser in respect of the
Ratchet Shares acquired by
it pursuant to clause 4.2(A)
and (B);
(iii) 58% of the sums paid
pursuant to clause 4.2(C);
in each case multiplied by the
percentage which the number of Ratchet
Shares bears to the total number of
Shares then in issue;
"Purchaser Return" means, in respect of Ratchet Shares
held by the Purchaser, the aggregate of:
(a) amounts received by the
Purchaser from Newco on
Income Distributions in
respect of the Ratchet
Shares held by it;
(b) amounts received by the
Purchaser from Newco on a
Returns of Capital in
respect of the Ratchet
Shares held by it;
(c) (in the event of a Listing)
the value, at the Pre
Ratchet Price, of any
Ratchet Shares held by the
Purchaser;
(d) (in the event of a Sale) the
value at the Pre Ratchet
Price, of the Ratchet Shares
held by the Purchaser;
(e) any other amount received by
the Purchaser from Newco in
respect of the Ratchet
Shares;
less: the aggregate of the direct
costs of the Purchaser attributable
to making and/or realising (in whole
or in part) an investment in the
Ratchet Shares;
"Purchaser's Group" means the Purchaser, its subsidiaries
and subsidiary undertakings, any
holding company of the Purchaser and
all other subsidiaries and subsidiary
undertakings of any such holding
company from time to time;
5
"Purchaser's Solicitors" means Macfarlanes;
"Qualifying Realisation" means a Listing or a Sale which
occurs on or before the fifth
anniversary of the date of this
agreement;
"Ratchet Shares" the Shares the subject of a Sale or
a Listing;
"Realisation Date" means:
(a) in the case of a Listing, the
date on which dealings
commence in respect of the
shares the subject of the
Listing; or
(b) in the case of a Sale,
completion of the Sale;
"Realisation Proceeds" means:
(a) in the event of a Listing,
the value placed on all the
Ratchet Shares;
(b) in the event of a Sale, the
value of the consideration
payable on completion of the
Sale in respect of all the
Sale Shares provided that if
the consideration for the
Sale comprises wholly or in
part the issue of securities
(not accompanied by a cash
alternative) (aa) if the
securities will rank pari
passu with a class of
securities already publicly
traded, the value of such
securities determined by
reference to the closing mid
market price of the
securities on the latest
practical day prior to the
Realisation Date, or (bb) if
the securities are not of
such a class, the value of
such securities determined
by an independent investment
bank (selected by Newco) in
a certificate obtained for
the purpose and addressed to
Newco;
"Regus Beneficiary" means a Regus Guarantor which is not
party to this agreement;
"Regus Brand Agreement" means the agreement
between RML and others which is in the
form of the agreement contained in
Schedule 10 (Regus Brand Agreement);
"Regus Guarantor" has the meaning given to it in clause
9;
"Relevant Properties" means the properties referred to in
Schedule 8 (Schedule of Properties);
6
"Relevant Claim" has the meaning given to it in clause
16.1;
"Remaining Regus Group" means PLC, its subsidiaries and
subsidiary undertakings, from time to
time, but shall exclude members of the
UK Group;
"Return of Capital" means the return of capital by Newco
to its shareholders whether by
liquidation or otherwise;
"RML Leasehold Property" has the meaning given to it in the
RML Leasehold Transfer Agreement;
"RML Leasehold Transfer means the agreement in the form of
Agreement" the agreement in Schedule 11 (RML
Leasehold Transfer Agreement);
"RML Loan" has the meaning given to it in clause
6.2(E);
"Sale" the sale of Shares (other than to
RML, an Affiliate of RML or to a
member of the Remaining Regus Group);
"Sale Shares" means 148,893 fully paid ordinary
shares in the share capital of Newco
with a par value of 1p per share;
"Sellers' Solicitors" means Xxxxxxxxx and May;
"Services Agreement" means the agreement between Newco and
others for the provision of IT,
customer support, training, sales,
marketing and other services set out
therein, which is in the form of the
agreement contained in Schedule 9
(Services Agreement);
"Shareholders Agreement" means the agreement in the form of
the agreement set out in Schedule 7
(Shareholder Agreement);
"Target Purchaser Return" means the amount of the Purchaser
Cost multiplied by three;
"Tax Covenant" means the tax covenant in the form of
the tax covenant set out in Schedule
3 (Tax Covenant);
"Tax/tax" or "Taxation" means all forms of taxation and
statutory, governmental,
supra-governmental, state, principal,
local governmental or municipal
impositions, duties contributions and
levies, in each case whether of the
United Kingdom or elsewhere and
whenever imposed, and all penalties,
charges, costs and interest relating
thereto;
7
"TCGA 1992" means the Taxation of Chargeable
Gains Xxx 0000;
"Transferring Agreements" means:
(a) the franchise agreement
between Regus Franchise
International Limited and
Woodstock Estates Limited
dated 24 January 2002; and
(b) the exclusive development
agreement between Regus
Franchise International
Limited, Business Spark
Limited and Xxxx Xxxxxx,
relating to the development
of business centres in
Farnborough, Winchester and
Farnham, dated 18th December,
2001;
"UK GAAP" means all financial reporting
standards, statements of standard
accounting practice and UITF
Abstracts issued by the Accounting
Standards Board and extract at the
Accounts Date;
"UK Group" means Newco, Regus (UK) Ltd, Regus
Business Centres (UK) Ltd, Regus City
Ltd, Regus Business Services Ltd,
Regus Manchester Ltd, FoRe Business
Centres Ltd and Park Business Centres
Ltd;
"UK Subsidiaries" means Newco, Regus (UK) Ltd, Regus
Business Centres (UK) Ltd, Regus City
Ltd, Regus Manchester Ltd and Regus
Business Services Ltd;
"VATA 1994" means the Value Added Tax Xxx 0000;
"Warranted Documents" means the documents headed "Warranted
Documents";
"Warranties" means the warranties set out in
Schedule 1 (Warranties) and
"Warranty" shall be construed
accordingly; and
"Working Hours" means 9.30 a.m. to 5.30 p.m. on a
Business Day.
1.2 In this agreement, unless otherwise specified:
(A) references to clauses, sub clauses, paragraphs, sub paragraphs and
schedules are to clauses, sub clauses, paragraphs, sub paragraphs of,
and schedules to, this agreement;
(B) a reference to any statute or statutory provision shall be construed
as a reference to the same as it may have been, or may from time to
time be, amended, modified or re enacted except to the extent that any
amendment or modification made after the date of this agreement would
increase or alter the liability of RML, the Purchaser, Newco or PLC
under this agreement;
8
(C) references to a "company" shall be construed so as to include any
company, corporation or other body corporate, wherever and however
incorporated or established;
(D) references to a "person" shall be construed so as to include any
individual, firm, company, government, state or agency of a state or
any joint venture, association or partnership (whether or not having
separate legal personality);
(E) the expressions "accounting reference date", "accounting reference
period", "allotment", "body corporate", "debentures", "holding
company", "paid up", "profit and loss account", "subsidiary",
"subsidiary undertaking" and "wholly owned subsidiary" shall have the
meaning given in the Companies Acts;
(F) a person shall be deemed to be connected with another if that person
is connected with another within the meaning of section 839 ICTA 1988;
(G) references to writing shall include any modes of reproducing words in
a legible and non transitory form;
(H) references to times of the day are to London time;
(I) references to the knowledge, belief or awareness of RML (or similar
phrases) shall be limited to the actual knowledge, and the knowledge
that could have been acquired after reasonable inquiries, of Xxxx
Xxxxx, Xxxxx Xxxx, Xxxxxxx Xxxxx, Xxxx Xxxxxxx and Xxxx Skuthe Xxxx;
(J) headings to clauses and schedules are for convenience only and do not
affect the interpretation of this agreement; and
(K) the schedules form part of this agreement and shall have the same
force and effect as if expressly set out in the body of this
agreement, and any reference to this agreement shall include the
schedules.
2. Sale and purchase of Sale Shares
2.1 RML shall sell and the Purchaser shall purchase the Sale Shares with
all rights attached or accruing to them at Completion.
2.2 The Sale Shares shall be sold by RML with full title guarantee free
from all charges, liens and encumbrances and from all other rights
exercisable by or claims by third parties.
2.3 The Purchaser shall be entitled to exercise all rights attached or
accruing to the Sale Shares including, without limitation, the right to
receive all dividends, distributions or any return of capital declared,
paid or made by Newco in respect of periods commencing on or after
Completion.
9
2.4 The Purchaser shall not be obliged to complete the sale and purchase of
any of the Sale Shares unless the sale and purchase of all the Sale
Shares is completed simultaneously.
3. Subscription for and issue of the New Shares
3.1 The Purchaser shall subscribe for and Newco shall allot and issue the New
Shares as fully paid at Completion.
3.2 The Purchaser shall take the New Shares subject to the Memorandum and
Articles of Association of Newco.
4. Consideration
4.1 The total consideration for the New Shares shall be the payment of
(pound)16,300,000 by the Purchaser to Newco at Completion in accordance
with clause 6 (Completion).
4.2 The total consideration for the Sale Shares shall be the total amount paid
as follows:
(A) the Purchaser shall pay to RML at Completion an amount equal to
(pound)25,600,000 (which amount shall subsequently be subject to the
adjustment provided for in clause 4.5 and 4.6);
(B) subject to clause 4.3 and 16.2(A), the Purchaser shall pay to RML
(pound)10 million within five Business Days of the agreement,
pursuant to Schedule 5 (Calculation of EBITDA), of EBITDA for the UK
Group for the year ending 31st December 2002;
(C) within five Business Days of the agreement, pursuant to Schedule 5
(Calculation of EBITDA) of EBITDA for the UK Group for the year
ending 31 December, 2003, the Purchaser shall procure payment to RML
in accordance with clause 4.4, of an amount equal to 70 per cent. of
the amount by which EBITDA for the UK Group for the year ending 31
December, 2003 exceeds (pound)29,000,000; and
(D) within five Business Days following a Qualifying Realisation, the
Purchaser shall pay to RML an amount (if any) equal to 30 per cent.
of the amount by which the Purchaser Return in respect of the Ratchet
Shares is greater than the Target Purchaser Return.
4.3 If the EBITDA of the UK Group for the year ended 31st December 2002 is
less than (pound)37,400,000, the amount payable by the Purchaser under
sub-clause 4.2(B) shall be reduced by an amount equal to the shortfall
x 0.58.
4.4 Any amount payable pursuant to clause 4.2(C) shall be payable pursuant
to clause 6.4 or to the extent that dividends are received by the
Purchaser from Newco (save to the extent they have already been applied
under this clause 4.4) and to that end the Purchaser will procure that
Newco distributes as much of its distributable profits as it is
lawfully able to. To the extent such dividends are insufficient, the
Purchaser will procure that Newco discharges its obligation to make any
remaining payment due under that clause to the extent it lawfully can
Provided That if the effect of this clause 4.4 or any part of it
(including its presence in this agreement) or
10
of implementing it or any part of it would be to reduce the Purchaser's
relevant fraction of the total profits of Newco or any UK Subsidiary in any
overlapping period, then to that extent this clause 4.4 shall have no
effect and no steps shall be taken to implement (or purport to implement)
any such provision and any steps which are so taken shall be null and void
and of no effect whatsoever (but in which event, for the avoidance of
doubt, the obligation of the Purchaser to procure payment under clause
4.2(C) shall continue). Words and expression used in section 403C of ICTA
1988 and in this clause 4.4 shall have the same meaning in this clause 4.4
as they have in the said section 403C and shall be supplemented for the
purposes of this clause 4.4 by Schedule 18 to ICTA 1988 Act just as they
are in section 403C.
4.5 The Completion Net Liabilities shall be calculated in accordance with
Schedule 6 (Completion Net Liabilities). If the Completion Net
Liabilities are greater than the Estimated Completion Net Liabilities,
RML shall pay to the Purchaser an amount equal to such excess by way of
deduction from the amount (if any) of the Deferred Consideration when
such Deferred Consideration first becomes payable and, subject thereto,
in cash. RML shall pay any shortfall to the Purchaser on such date.
4.6 The Completion Net Cash shall be calculated in accordance with Schedule
6. If Completion Net Cash is greater than zero, the Purchaser shall
procure the payment (including by way of dividend from Newco) to RML of
the amount of such excess. If Completion Net Cash is negative, RML
shall pay to the Purchaser the amount by which Completion Net Cash
falls short of zero. Amounts payable under this sub-clause shall be
paid within five Business Days of the agreement of Completion Net Cash
in accordance with Schedule 6 together with interest from the date of
Completion until the date of payment.
4.7 If the Purchaser fails to make payment of any sum due under this clause
4 (including interest), its liability shall be increased to include
interest on such sum from the date on which payment was due until the
day before the date of actual payment (as well before as after
judgement) at a rate per annum equal to LIBOR plus two per cent (and
for this purpose LIBOR shall be calculated as at the date on which
payment of the relevant sum was due).
4.8 Notwithstanding any other provision of this agreement, where this
agreement provides for an obligation or liability of a party to be
satisfied or a payment made by utilising (or paying an amount equal to
the amount of) a cash dividend due and paid or which might be paid to
that party, the relevant dividend or the amount shall be utilised or an
equivalent amount shall be applied in the following order of priority:-
(A) Firstly, by the Purchaser to the extent it has received such a
dividend in accordance with clause 16.2(B);
(B) Secondly, by the Purchaser to the extent it has received such a
dividend to satisfy any amounts due to RML by the Purchaser pursuant
to clause 4.6;
(C) Thirdly, by the Purchaser in funding draw-downs under the loan
agreement referred to in clause 6.2(B)(xii);
11
(D) Fourthly, by the Purchaser to the extent it has received such a
dividend in accordance with clause 4.4; and
(E) Lastly, by Newco in accordance with clause 6.4.
4.9 The Purchaser shall procure that the business of each UK Subsidiary
shall, during the period from the date of this agreement until the
consideration referred to in clause 4.3(C) has been paid, be conducted
commercially and in good faith with a view to maximising the EBITDA of
the UK group.
4.10 The parties acknowledge that no part of the consideration for the sale
of the Sale Shares and the consideration for the subscription for the
New Shares has been attributed by the parties to the Regus Brand
Agreement.
5. Purchaser's Management Appointees
The Purchaser shall be entitled to have Xxxxxx Xxxxxxx and Xxxx Xxxxxxx
each appointed as directors of Newco at Completion. Xxxxxx Xxxxxxx
shall also be appointed chairman of the board of directors of Newco at
Completion.
6. Completion
6.1 Completion shall take place on the Completion Date at the offices of
the Sellers' Solicitors at Xxx Xxxxxxx Xxx, Xxxxxx, XX0X 0XX.
6.2 At Completion:
(A) RML shall procure a board meeting of Newco to be held
at which:
(i) it shall be resolved that the transfer of the Sale Shares
shall be approved for registration and (subject only to the
transfer being duly stamped) the Purchaser be registered as the
holder of the Sale Shares in the register of members;
(ii) the allotment and issue of the New Shares to the Purchaser
shall be approved;
(iii) each of the persons nominated by the Purchaser pursuant to
clause 6 (Purchaser's Management Appointees) shall be appointed
directors and one of those persons (as nominated by the
Purchaser) shall be appointed chairman of the board of
directors, each such appointment to take effect on the
Completion Date; and
(iv) KPMG are appointed as auditors of Newco.
RML shall procure that minutes of such board meeting, certified as
correct by the secretary of Newco, are delivered to the Purchaser or
the Purchaser's Solicitors at Completion;
12
(B) RML shall deliver to the Purchaser or the Purchaser's Solicitors:
(i) a duly executed transfer in respect of the Sale Shares in
favour of the Purchaser and share certificates for the Sale
Shares;
(ii) such waivers or consents as are required to enable the
Purchaser to be registered as holders of the Sale Shares;
(iii) a share certificate in respect of the New Shares and a
certified copy of Newco's register of members showing the
Purchaser as the holder of the New Shares;
(iv) the Shareholders Agreement duly signed by itself, Regus
Business Centre BV, PLC and Newco;
(v) the Services Agreement duly signed by each UK Subsidiary;
(vi) the Regus Brand Agreement duly signed by RML and the other
parties thereto who are members of the Remaining Regus Group;
(vii) the Tax Covenant duly signed by PLC, RML and Newco; and
(viii) a power of attorney in the form initialled by RML and the
Purchaser;
(ix) the Letter of Instruction;
(x) a Form 403 in respect of the discharge of the charge over the
leasehold premises at One Canada Square, Canary Wharf (as
referred to in Schedule 8) (Schedule of Properties));
(xi) a loan agreement which evidences the loan referred to in
paragraph (E) below;
(xii) a loan agreement evidencing a (pound)2,000,000 loan facility
provided by the Purchaser to RML, repayable 12 months after
draw-down of each tranche and bearing interest at a rate of
four percentage points above LIBOR. Such loan shall be drawn
down in tranches equal to and at the same time as dividends
received by the Purchaser as provided for in clause 4.8(C);
(xiii the Leasehold Transfer Agreement duly signed by each of the
parties thereto;
(xiv) evidence reasonably satisfactory to the Purchaser that all set
off or other similar banking arrangements affecting both the
UK Group on the one hand and the remaining Regus Group on the
other have been terminated with effect from Completion.
13
(C) The Purchaser shall:
(i) pay to Newco by way of telegraphic transfer the amount referred
to in clause 4.1, free of any bank charges and commissions and
in immediately available funds;
(ii) pay to RML by way of telegraphic transfer the amount referred to
in sub-clause 4.2(A), free of any bank charges and commissions
and in immediately available funds;
(iii) deliver to RML a copy (certified by the secretary of the
Purchaser to be a true copy of a resolution in force at
Completion) of the resolution of the directors of the Purchaser
which authorises the purchase of the Sale Shares and New Shares
upon the terms set out in this agreement;
(iv) deliver to RML the Shareholders Agreement duly signed by itself;
(v) deliver to RML the Tax Covenant duly signed by itself; and
(D) RML shall, immediately upon receipt of the consideration payable at
Completion pursuant to clause 4, procure the repayment of all
inter-company balances owing at that time from members of the
Remaining Regus Group to members of the UK Group, save that there
shall remain outstanding a balance of (pound)5,000,000 owing from RML
to the members of the UK Group.
(E) The Purchaser shall procure that the balance of (pound)5,000,000
referred to above shall remain outstanding on terms that it shall be
a loan bearing interest at a rate of four percentage points above
LIBOR payable on 30 June and 31 December in each year and shall be
repayable in accordance with clause 6.4, and subject thereto on the
tenth anniversary of Completion (the "RML Loan").
(F) RML undertakes that immediately following Completion, it shall
procure the sum of (pound)8,000,000 shall be paid into the Blocked
Account.
6.3 (A) Neither RML nor Newco shall be obliged to complete this agreement
unless the Purchaser complies with the applicable requirements of
sub-clause 6.2.
(B) The Purchaser shall not be obliged to complete this agreement unless
RML complies with the applicable requirements of sub-clause 6.2.
6.4 On each occasion following Completion on which Newco declares a dividend to
RML when all or part of the RML Loan remains outstanding, RML shall or
shall procure that the relevant member of the UK Group, apply an amount
equal to such dividend in or towards repaying the RML Loan and interest
thereon (and thereby extinguishing it to an equivalent extent). At the
option of the Purchaser, all sums of principal and interest which remain
outstanding when the Deferred Consideration referred to in clause 4.2(D)
becomes payable may be repaid by applying the proceeds of some or all of
the Deferred Consideration in respect thereof.
14
6.5 The Purchaser undertakes that the business of the UK Group shall be run in
the ordinary course for the period from Completion until 31st December,
2002.
6.6 (A) PLC for itself and as trustee of each member of its Group confirms,
that (save for the RML Loan and save for any rights of subrogation a
member of the Remaining Regus Group may have against any member of
the UK Group following a call under a guarantee or similar obligation
of a type referred to in clause 9.1) it and no member of the
Remaining Regus Group has any claim (whether in respect of any breach
of contract, monies due to it or on any account whatsoever)
outstanding against any member of the UK Group or against any of
their respective shareholders, directors or employees and that no
agreement or arrangement is outstanding under which a member of the
UK Group or any of such persons described above has or could have any
current obligation of any kind to us.
(B) To the extent that any such outstanding claim or current obligation
exists or may exist, PLC, for itself and on behalf of each member of
the UK Group irrevocably and unconditionally waives such outstanding
claim or current obligation and releases each member and any such
persons described above from any liability whatsoever in respect of
such outstanding claim or current obligation.
7. RML's Warranties
7.1 Subject to sub-clause 7.2, RML warrants to the Purchaser that each of the
Warranties is true, accurate and not misleading as at the date of this
agreement.
7.2 Except in a case involving fraud, dishonesty or wilful non-disclosure on
the part of RML or Newco or in respect of a breach of any of the Excluded
Warranties or in respect of a breach of the Warranty at paragraph 25 of
Schedule 1, the Purchaser shall not be entitled to claim for breach of any
Warranty to the extent that any of the limitations in Schedule 2
(Limitation on RML's liability under the Warranties) apply or any fact
which causes any of the Warranties to be breached was fairly disclosed in
the Disclosure Letter or fairly disclosed in any document referred to in
the Disclosure Letter.
7.3 Each of the Warranties shall be construed as a separate and independent
warranty and (except where expressly provided to the contrary) shall not
be limited or restricted by reference to or inference from the terms of
any other Warranty.
7.4 Except in a case involving fraud, dishonesty or wilful non-disclosure on
the part of RML or Newco or in respect of a breach of any of the Excluded
Warranties or in respect of a breach of the Warranty at paragraph 25
Schedule 1 of the Purchaser shall not be entitled to claim for breach of
any Warranty if any fact which causes any of the Warranties to be breached
was fairly disclosed in the Disclosure Letter on any document referred to
in the Disclosure Letter.
7.5 The Purchaser acknowledges that it does not rely on and has not been
induced to enter into this agreement on the basis of any warranties,
representations, covenants, undertakings, indemnities or other statements
whatsoever, other than the Warranties, and acknowledges that neither RML,
Newco, PLC, nor any of PLC's other subsidiary undertakings or any of their
15
agents, officers or employees, have given any such warranties,
representations, covenants, undertakings, indemnities or other statements.
7.6 If, following Completion, the Purchaser becomes aware that there has been
any breach of the Warranties or any other term of this agreement by RML or
PLC the Purchaser shall not be entitled to terminate this agreement but
shall be entitled to claim damages or exercise any other right, power or
remedy under this agreement or as otherwise provided by law.
7.7 RML undertakes to the Purchaser and Newco that, in the event of any claim
being made against it for breach of any Warranty, it will not make any
claim against any member of the UK Group or against any director, officer
or employee of any member of the UK Group on which or on whom it relied
before agreeing to any terms of this Agreement or in preparing the
Disclosure Letter. Subject to clause 22, this clause 7.7 is for the
benefit of, and is intended to be enforceable by, any member of the UK
Group and any such director, officer or employee which or who is not a
party to this agreement.
8. Purchaser's warranties
8.1 The Purchaser warrants to RML and Newco that, as at the date of this
agreement:
(a) it is a corporation validly existing under the laws of England with
the requisite power and authority to enter into and perform its
obligations under this agreement and has taken all necessary
corporate action to authorise the execution and performance of its
obligations under this agreement;
(b) neither the execution of this agreement by the Purchaser nor the
consummation of the transaction as contemplated by this agreement
will violate, conflict with or result in the breach of any term,
limitation in or provision of, or constitute a default (or an event
that, with the giving of notice or the lapse of time or both, would
constitute a default) under the terms, provisions or conditions of
the constitutional documents of the Purchaser or violate any order,
writ, claim form, injunction, decree, statute, rule or regulation
applicable to the Purchaser;
(c) it has right to draw down sufficient funds to satisfy in full all
amounts required to be paid by it to RML at Completion conditional
only upon Completion taking place; and
(d) no consent or approval by, notice to or registration with any
governmental or other authority is required on the part of the
Purchaser in connection with the execution of this agreement or the
consummation of the transactions contemplated in it.
8.2 If, following Completion, either RML or Newco become aware that there has
been a breach of any of the warranties in clause 8.1 or any other term of
this agreement by the Purchaser, RML or Newco (as the case may be) shall
not be entitled to terminate this agreement but shall be entitled to claim
damages or exercise any other right, power or remedy under this agreement
or as otherwise provided by law.
16
8.3 RML and Newco each acknowledges that it does not rely on and has not been
induced to enter into this agreement on the basis of any warranties,
representations, covenants, undertakings, indemnities or other statements
whatsoever, other than the warranties set out in clause 8.1, and each
acknowledges that the Purchaser has not given any such other warranties,
representations, covenants, undertakings, indemnities or other statements.
9. Guarantee Indemnity
(a) Newco unconditionally and irrevocably undertakes to each member of
the Remaining Regus Group which is a guarantor or surety in respect
of any obligation of any member of the UK Group (a "Regus Guarantor")
that Newco shall on demand indemnify and keep indemnified on a
continuing basis each Regus Guarantor against all payments, costs,
expenses and liabilities made or incurred by the Regus Guarantor
under or in connection with such guarantee or surety obligations.
This clause is for the benefit of, and is intended to be enforceable
by, Regus Guarantors which are a party to this agreement and (subject
to clause 22) by Regus Guarantors which are not a party to this
agreement.
(b) The Purchaser as primary obligor unconditionally and irrevocably
undertakes to each Regus Guarantor that, if and each time Newco fails
to make any payment to it under clause 9(a) when it is due, it shall
on demand (without requiring the Regus Guarantor first to take steps
against Newco or any other person) pay to the Regus Guarantor an
amount equal to the Relevant Proportion of that payment. This clause
is for the benefit of, and is intended to be enforceable by, Regus
Guarantors which are a party to this agreement and (subject to clause
2) Regus Guarantors which are not a party to this agreement. For the
purpose of this clause (b) "Relevant Proportion" means 58 per cent.
(c) The Purchaser's obligations under clause 9(b) shall not be affected
by any matter or thing which, but for this provision might operate to
affect or prejudice those obligations, including without limitation:
(a) any time or indulgence granted to, or composition with, the
Purchaser or any other person;
(b) the taking, variation, renewal or release of, or neglect to
perfect or enforce the agreement or any right, guarantee, remedy
or security from or against the Purchaser or any other person;
or
(c) any unenforceability or invalidity of any obligation of the
Purchaser, so that this clause shall be construed as if there
was no such unenforceability or invalidity.
10. RML Property Indemnities
10.1 RML unconditionally and irrevocably undertakes to each of the UK
Subsidiaries and the Purchaser that it shall on demand indemnify and keep
indemnified on a continuing basis each of them against all actions,
claims, proceedings, losses, damages, payments, costs, expenses
17
or liabilities incurred by them (or any of them) in respect of any
Indemnity Property anywhere in the world. For the purpose of this
sub-clause 10.1, "Indemnity Property" means:
(a) any freehold property previously owned by any UK Subsidiary; and
(b) any leasehold property (other than a Relevant Property) in respect of
which any UK Subsidiary or any member of the Remaining Regus Group is
at the date of this agreement, or was formerly, lessee or guarantor
in respect of the obligations of a lessee.
10.2 Subject to clause 10.4 and 10.5, RML unconditionally and irrevocably
undertakes to each of the UK Subsidiaries and the Purchaser that it shall
on demand indemnify and keep indemnified on a continuing basis each of
them against all Losses suffered by it as a direct consequence of any
Enforcement Action.
10.3 Clause 10.2 shall not apply unless and until the total number of
Enforcement Actions notified to RML in accordance with sub-clause 10.5
exceeds ten in number and then it shall apply only to Enforcement Actions
notified subsequent to the tenth Enforcement Action so notified to RML.
10.4 The Losses which would be recoverable by the UK Subsidiaries and the
Purchaser under clause 10.2, but for this sub-clause 10.4, shall be
reduced to the extent that such Losses could have been avoided had the
Purchaser or the UK Subsidiary (as the case may be) taken all reasonable
action to mitigate its Losses.
10.5 In the event that the Purchaser or any of the UK Subsidiaries receives
notice of any Enforcement Action, the following provisions shall apply:
(a) the Purchaser or the UK Subsidiary (as the case may be) shall
promptly inform RML in writing of the existence of the Enforcement
Action and shall provide (and shall continue to provide whilst the
Enforcement Action is in existence) to RML copies of all documents in
its possession relating to the Enforcement Action; and
(b) the Purchaser shall, and shall procure that Newco and the UK
Subsidiary affected by the Enforcement Action, take all reasonable
steps which RML may reasonably and properly require it to take to
defend or contest the Enforcement Action (including, without
limitation, seeking relief from forfeiture) and complying with Relief
Conditions (if any);
(c) the Purchaser shall procure that the UK Subsidiary affected by the
Enforcement Action does not settle or compromise any Enforcement
Action without RML's prior written consent.
10.6 The Purchaser's obligations under clause 10.5(b) and clause 10.5(c) are
conditional on RML providing such security for costs as the Purchaser may
reasonably require.
18
10.7 For the purpose of this clause 10:
"Enforcement Action" means any threatened
or actual enforcement action
or steps for Forfeiture taken
by a Landlord in respect of
any Relevant Property
(including the taking of
steps preparatory to such
action);
"Forfeiture" means the determination of
any lease by peaceable
re-entry or forfeiture on the
grounds of circumstances
other than:
(i) non-payment of rent;
(ii) breach of the
tenant's obligations
under the relevant
Lease other than any
obligation to
provide a security;
and
(iii) any insolvency
related event
occurring in
relation to the
tenant;
"Landlord" means, in relation to a Relevant
Property, the person entitled to the
reversion immediately expectant upon
the term of the Lease;
"Lease" means, in relation to a
Relevant Property, the lease
or tenancy document pursuant
to which the relevant UK
Subsidiary is entitled to
occupy it.
"Losses" means:
(a) reasonable relocation costs
and costs of fitting out
replacement premises;
(b) profits which could
reasonably have been
expected to have been made
from the Relevant Property
had the Lease not been
determined for Forfeiture;
(c) payments, costs, expenses
and liabilities properly
incurred defending or
otherwise seeking to defeat
any Enforcement Action
(whether or not such
Enforcement Action is
ultimately successful);
(d) payments, costs, expenses
and liabilities properly
incurred to, or by reason of
any claim brought by, any
subtenant, licensee,
customer
19
or other occupier of any
Relevant Property as a
result of the Lease being
determined by Forfeiture;
and
(e) interest which may be
payable to any Landlord
under the terms of the lease
by reason of the Landlord
refusing to accept payment
of rent to preserve rights
to Forfeiture;
"Relief Conditions" means any conditions imposed by a
court in granting relief from
forfeiture including the provision of
alternative security for compliance
with the tenant's covenants in the
relevant Lease.
10.8 If at any time after Completion, the RML Leasehold Transfer Agreement
shall cease to have effect in relation to an RML Leasehold Property:
(a) RML shall enter into a management agreement relating to the RML
Leasehold Property which has the effect of putting the Purchaser in
the same (but no more advantageous) position as it would have been in
had the Purchaser or a member of the UK Group been named as the
tenant under the lease of such RML Leasehold Property; and
(b) RML shall indemnify and keep indemnified on a continuing basis the
Purchaser and each of the UK Subsidiaries against all actions,
claims, proceedings, losses, damages, payments, reasonable costs,
expenses or liabilities incurred by them as a result of a failure to
register the Purchaser or a UK Subsidiary as the tenant or sub-tenant
of the lease of the relevant RML Leasehold Property.
11. PLC Guarantee
11.1 PLC as primary obligor unconditionally and irrevocably:
(a) guarantees to the Purchaser and undertakes to procure the performance
when due of all obligations of RML under this agreement; and
(b) agrees that if and each time RML fails to make any payment to the
Purchaser when it is due under this agreement, PLC shall on demand
(without requiring the Purchaser first to take steps against RML or
any other person) pay that amount to the Purchaser.
11.2 PLC's obligations under sub-clause 11.1 shall not be affected by any
matter or thing which, but for this provision, might operate to affect
or prejudice those obligations, including without limitation:
(a) any time or indulgence granted to, or composition with, RML to any
other person;
20
(b) the taking, variation, renewal or release of , or neglect to perfect
or enforce this agreement or any right, guarantee, remedy or security
form or against RML or any other person; or
(c) any enforceability or invalidity or any obligation of RML, so that
this clause shall be construed as if there was no such
unenforceability or invalidity.
12. Transfer of Franchise Agreements
12.1 PLC shall procure that Regus (UK) Limited and Regus Franchise
International Limited shall and shall use all reasonable endeavours to
procure that all relevant third parties enter into a novation agreement in
respect of each Transferring Agreement with the intent that, with effect
from the date such novation agreement is entered into, Regus (UK) Limited
shall undertake the obligations, and be entitled to the rights, under each
Transferring Agreement as if it were a party to each of the Transferring
Agreement in lieu of Regus Franchise International Limited as from the
date of the novation agreement. The Purchaser shall procure that Regus
(UK) Limited enters into each such novation agreement.
12.2 Until a novation agreement has been entered into in respect of a
Transferring Agreement in accordance with this agreement, the following
provisions shall apply:
(a) Regus Franchise International Limited shall be treated as holding the
benefit of the Transferring Agreement in trust for Regus (UK) Limited
and will promptly pay over any benefit under the agreement to Regus
(UK) Limited; and
(b) Regus (UK) Limited shall perform on behalf of Regus Franchise
International Limited (but at Regus (UK) Limited's expense), the
obligations of the Regus Franchise International Limited under the
Transferring Agreement arising after the date of this agreement.
12.3 Regus (UK) Limited shall indemnify Regus Franchise International Limited
against all actions, proceedings, costs, damages, claims and demands in
respect of any failure on the part of Regus (UK) Limited to carry out,
perform and discharge the obligations referred to in sub-clause 12.2(b)
for the period from Completion to the date on which the relevant novation
agreement is entered into.
13. Effect of Completion
Any provision of this agreement and any other documents referred to in
it which is capable of being performed after but which has not been
performed at or before Completion and all Warranties contained in this
agreement shall remain in full force and effect notwithstanding
Completion.
14. Remedies and waivers
14.1 No delay or omission by any party to this agreement in exercising any
right, power or remedy provided by law or under this agreement or any
other documents referred to in it shall:
21
(A) affect that right, power or remedy; or
(B) operate as a waiver thereof,
14.2 The single or partial exercise of any right, power or remedy provided by
law or under this agreement shall not preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
14.3 The rights, powers and remedies provided in this agreement are cumulative
and not exclusive of any rights, powers and remedies provided by law
unless stated expressly.
15. Assignment
15.1 Neither this agreement nor any part of the benefit of, or rights or
benefits under, this agreement shall be assignable by the Purchaser except
that the Purchaser may, upon giving written notice to RML, assign all or
any part of the benefit of, or its rights or benefits under, this
agreement to a member of the Purchaser's Group provided that any such
assignee remains a member of the Purchaser's Group and provided further
that before such assignee ceases to be a member of the Purchaser's Group,
the Purchaser will procure that the benefit of this agreement and the
rights and benefits under it are reassigned to the Purchaser or (upon
giving further written notice to RML) assigned to another company within
the Purchaser's Group (any such further assignment to be subject to the
same conditions as above).
15.2 The Purchaser shall not make a declaration of trust in respect of or enter
into any arrangement whereby it agrees to hold in trust for any other
person all or any part of the benefit of, or its rights or benefits under,
this agreement.
15.3 The Purchaser shall not sub-contract or enter into any arrangement whereby
another person is to perform any or all of its obligations under this
agreement.
15.4 Neither this agreement nor any part of the benefit of, or rights or
benefits under, this agreement shall be assignable by RML except that RML
may, upon giving written notice to the Purchaser, assign all or any part
of the benefit of, or its rights or benefits under, this agreement to a
qualifying member of RML's Group provided that any such assignee remains a
qualifying member of RML's Group and provided further that before such
assignee ceases to be a qualifying member of RML's Group, RML will procure
that the benefit of this agreement and the rights and benefits under it
are reassigned to RML or (upon giving further written notice to the
Purchaser) assigned to another company within RML's Group (any such
further assignment to be subject to the same conditions as above). In this
clause 15.4 the expression "qualifying member of RML's Group" shall mean a
member of RML's Group which is not subject to the provisions of Chapter 11
of Title 11 of the United States Code.
16. Satisfaction of Claims
16.1 In the event that the Purchaser has a claim against RML for breach of
Warranty or under the Tax Covenant or arising under any of the
indemnities in this agreement or under the Brand Agreement or the
Services Agreement (a "Relevant Claim"), then, at the sole option of
the
22
Purchaser and without prejudice to any other remedy available to it, the
provisions of this clause 16 shall apply.
16.2 In the event that a Relevant Claim is settled (as defined in clause 16.9)
but is not paid to the Purchaser when due:
(A) the amount of any Deferred Consideration which remains outstanding at
the time shall be reduced by the amount of the Relevant Claim which
is unpaid and RML's liability in respect of the Relevant Claim shall
be extinguished by an amount equal to such amount; and subject
thereto
(B) RML shall pay to the Purchaser out of the proceeds of the dividend
next received by RML an amount equal to the lower of (i) the amount
of such dividend; and (ii) the amount of the Relevant Claim which
remains unpaid; and subject thereto
(C) the Purchaser shall be entitled to require that a number of shares in
Newco held by RML as then have an aggregate Prescribed Value (as
defined in the Articles of Association) equal to the amount of the
Relevant Claim which remains unpaid are transferred to the Purchaser
for no consideration. For this purpose "Prescribed Value" shall be
calculated in accordance with the Shareholders Agreement.
16.3 If a Relevant Claim which has not been settled (an "Outstanding Claim")
exists on the date on which any instalment of the Deferred
Consideration falls due or on which a dividend in favour of RML has
been declared by Newco but not paid ("an Outstanding Dividend"), the
Purchaser shall be entitled to serve upon RML a copy of a written
opinion from a Queens Counsel of at least five years' standing which
states that in such barrister's opinion such claim is reasonably likely
to succeed and contains such barrister's reasonable estimate as to the
amount likely to be recoverable from RML pursuant to the claim (the
"Estimated Amount"). Having served a copy of the opinion on RML, the
Purchaser shall be entitled to withhold from the Deferred Consideration
or the Outstanding Dividend (as the case may be) the Estimated Amount
of the Outstanding Claim in accordance with clause 16.5 (provided,
however, that the balance of the relevant instalment of the Deferred
Consideration or the Outstanding Dividend (as the case may be) (if any)
shall be paid as and when due in accordance with this agreement) or the
terms on which the dividend is declared (as the case may be).
16.4 The Purchaser shall permit RML to make representations to any barrister
instructed for the purpose of clause 16.3. The barrister's costs shall
be borne by the Purchaser.
16.5 All amounts withheld by the Purchaser pursuant to clause 16.3 shall be
placed in an interest bearing deposit account (the "Escrow Account")
opened at a United Kingdom branch of one of the clearing banks (or such
other bank as RML and the Purchaser agree) in the joint names of RML's
Solicitors and the Purchaser's Solicitors on terms that no amounts
(including interest) shall be paid out therefrom otherwise than as
expressly provided in this clause 16. The mandate applicable to the
Escrow Account shall be operated jointly by the Seller's Solicitors and
the Purchaser's Solicitors as provided in the Letter of Instruction in
the Agreed Form which the parties shall issue to such solicitors on
Completion.
23
16.6 Unless the Purchaser has commenced legal proceedings in respect of any
Outstanding Claim within three months of the date on which the
barrister's opinion in respect of the Outstanding Claim is provided to
RML it shall not be entitled to continue to exercise its rights under
clause 16.3 in respect of such Outstanding Claim. All amounts placed in
the Escrow Account in respect of such Outstanding Claim shall be
released to the Seller's Solicitors within five business days. For the
purposes of this clause, legal proceedings shall not be regarded as
having been commenced unless they have been both issued and served on
RML.
16.7 When any Outstanding Claim in respect of which an Estimated Amount has
been placed in the Escrow Account pursuant to clause 16.5 is settled,
RML and the Purchaser shall procure the release and payment from the
Escrow Account as follows:
(A) where the Outstanding Claim is settled in favour of the Purchaser, in
paying to the Purchaser the amount due in respect (and in full
satisfaction of) the claim and, to the extent that the Estimated
Amount exceeds the amount at which the claim is settled, in paying to
RML an amount equal to such excess; and
(B) where the Outstanding Claim is settled in favour of RML, in paying to
RML the Estimated Amount placed in the Escrow Account pursuant to
clause 16.5.
16.8 Any release of monies from the Escrow Account in satisfaction of any
claim shall be made first out of the principal monies forming part
thereof and thereafter (to the extent such principal monies are not
sufficient) out of interest earned on the principal monies. Subject to
the foregoing, any interest earned on principal monies released from
the Escrow Account shall be paid to the person receiving the same at
the same time as they are released.
16.9 A claim shall be regarded as settled for the purpose of this clause 16
if either:
(A) the Purchaser and RML (or their respective solicitors) shall so agree
in writing, such written agreement not to be unreasonably withheld or
delayed following any oral agreement between them (or their
respective solicitors) as to the terms of settlement; or
(B) a court has awarded judgement in respect of the claim and no right of
appeal lies.
16.10 RML irrevocably and unconditionally appoints the Purchaser as its
attorney to execute and do in its name and otherwise on its behalf all
documents, acts and things which the attorney shall in its absolute
discretion consider necessary in order to implement the transfer of
shares referred to in clause 16.2(C).
17. Further assurance
Each of the parties shall from time to time, on being required to do so
by any other party to this agreement now or at any time in the future,
do or so far as each is able procure the doing of all such acts and/or
execute or procure the execution of such documents in a form
satisfactory to the party concerned as they may reasonably consider
necessary for giving full effect to this agreement
24
and securing to them the full benefit of the rights, powers and remedies
conferred upon them in this agreement.
18. Entire agreement
18.1 This agreement and the Disclosure Letter (the "Share Purchase
Documents") constitute the whole and only agreement between the parties
relating to the sale and purchase of the Sale Shares and the
subscription for and issue of the New Shares. In entering into the
Share Purchase Documents, each party to this agreement acknowledges
that it is not relying upon any pre-contractual statement which is not
expressly set out in them.
18.2 Except in the case of fraud, no party shall have any right of action
against any other party to this agreement arising out of or in
connection with any pre-contractual statement except to the extent that
it is repeated in the Share Purchase Documents.
18.3 For the purposes of this clause "pre-contractual statement" means any
draft, agreement, undertaking, representation, warranty, promise,
assurance or arrangement of any nature whatsoever, whether or not in
writing, relating to the subject matter of the Share Purchase Documents
made or given by any person at any time prior to the date of this
agreement.
19. Notices
19.1 A notice under this agreement shall only be effective if it is in writing.
19.2 Notices under this agreement shall be sent to a party at its address or
number and for the attention of the individual set out below:
Party and title of individual Address Facsimile no.
----------------------------- ------- -------------
Regus PLC 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx Business 01932 895 263
Park, Chertsey, Surrey, KT16 0RS
25
Attention: Company Secretary
Regus Management Limited 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxxxx 00000 000 000
Xxxx, Xxxxxxxx, Xxxxxx, XX00 0XX
Attention: Company Secretary
Regus (Holdings) UK Limited 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxxxx 00000 000 000
Xxxx, Xxxxxxxx, Xxxxxx XX00 0XX
Xxx 2002 Limited 00 Xxxxxxxxxxx , Xxxxxx XX0X 0XX 020 7240 9594
with a copy to Xxxxxx Xxxxxxx at 00 Xxxxxxxxxxx, Xxxxxx XX0X 0XX 020 7240 9594
Alchemy Partners LLP
Provided that a party may change its notice details on giving notice to
the other party of the change in accordance with this clause. That
notice shall only be effective on the day falling five clear Business
Days after the notification has been received or such later date as may
be specified in the notice.
19.3 Any notice given under this agreement shall, in the absence of earlier
receipt, be deemed to have been duly given as follows:
(A) if delivered personally, on delivery;
(B) if sent by first class post, two clear Business Days after the date
of posting; and
(C) if sent by facsimile, when despatched provided a confirmation of
successful transmission is produced by the sending fax machine.
19.4 Any notice given under this agreement outside Working Hours in the
place to which it is addressed shall be deemed not to have been given
until the start of the next period of Working Hours in such place.
20. Announcements
No announcement concerning the sale and purchase of the Sale Shares or
the subscription for and issue of the New Shares or any other
arrangement contained herein shall be made before, on or after
Completion by any of the parties or any member of their Group without
prior consultation with and the prior written approval of the Purchaser
and RML, unless the announcement is required by law, the UK Listing
Authority or any other regulatory authority or (in the case of the
Purchaser) the announcement is to Alchemy Partners LLP, Alchemy
Partners (Guernsey) Limited or members of the Alchemy Investment Plan,
in which case no such consultation or approval shall be required.
21. Costs and expenses
Except as otherwise stated in any other provision of this agreement,
each party shall pay its own costs and expenses in relation to the
negotiations leading up to the sale and purchase of the Sale Shares and
subscription for and issue of the New Shares and the preparation,
execution and carrying into effect of this agreement and all other
documents referred to in it.
26
22. Counterparts
22.1 This agreement may be executed in any number of counterparts, and by
the parties on separate counterparts, but shall not be effective until
each party has executed at least one counterpart.
22.2 Each counterpart shall constitute an original of this agreement, but
all the counterparts shall together constitute but one and the same
instrument.
23. Invalidity
If at any time any provision of this agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, that shall not affect or impair:
(A) the legality, validity or enforceability in that jurisdiction of any
other provision of this agreement; or
(B) the legality, validity or enforceability under the law of any other
jurisdiction of that or any other provision of this agreement.
24. Contracts (Rights of Third Parties) Xxx 0000
24.1 Clause 7.7, clause 9(a), clause 9(b) and clause 12.3 are each intended
to confer benefits on the persons referred to in them which are not
parties to this agreement (each a "Third Party") and, subject to clause
24.2, are intended to be enforceable by each such Third Party by virtue
of the Contracts (Rights of Third Parties) Act 1999 (the "Act"). The
parties to this agreement do not intend that any other term of this
agreement should be enforceable by virtue of the Act by any person who
is not a party to this agreement.
24.2 Notwithstanding clause 24.1 above:
(a) no Third Party may enforce clause 7.7, clause 9(a), clause 9(b) or
clause 12.3 (as the case may be) without the prior written consent of
RML which may, if given, be given on and subject to such terms and
conditions as RML may determine; and
(b) this agreement may be rescinded or varied by the parties to it
without the consent of any Third Party.
25. Choice of Governing Law and Jurisdiction
This agreement shall be governed by and construed in accordance with
English law. Each of the parties hereto submits to the exclusive
jurisdiction of the Courts of England and Wales in connection with any
claim, dispute or matter arising out of or relating to this agreement
or any of the documents to be executed pursuant to this agreement.
CONFORMED COPY WITH MANUSCRIPT AMENDMENTS
-----------------------------------------
DATED 20 December 2002
REGUS PLC
and
REGUS MANAGEMENT LIMITED
and
REGUS HOLDINGS (UK) LIMITED
and
XXX 2002 LIMITED
---------------------------
SHARE PURCHASE AND SUBSCRIPTION AGREEMENT
---------------------------
Xxxxxxxxx and May
Xxx Xxxxxxx Xxx
Xxxxxx XX0X 0XX
(AGR/TPB)
CD031830044
CONTENTS
--------
Page
----
1. Definitions and Interpretation 1
2. Sale and purchase of Sale Shares 9
3. Subscription for and issue of the New Shares 10
4. Consideration 10
5. Purchaser's Management Appointees 12
6. Completion 12
7. RML's Warranties 15
8. Purchaser's warranties 16
9. Guarantee Indemnity 17
10. RML Property Indemnities 17
11. PLC Xxxxxxxxx 00
00. Transfer of Franchise Agreements 21
13. Effect of Completion 21
14. Remedies and waivers 21
15. Assignment 22
16. Satisfaction of Claims 22
17. Further assurance 24
18. Entire agreement 25
19. Notices 25
20. Announcements 26
21. Costs and expenses 26
22. Counterparts 27
23. Invalidity 27
24. Contracts (Rights of Third Parties) Xxx 0000 27
25. Choice of Governing Law and Jurisdiction 27
