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As Of Filer Filing For·On·As Docs:Size Issuer Agent 10/01/08 Futuremedia PLC 6-K 10/01/08 1:897K Vintage/FA |
Document/Exhibit Description Pages Size 1: 6-K Report of a Foreign Private Issuer HTML 465K
| Unassociated Document |
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Exhibit
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Exhibit
Description
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1
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Asset
Sale Agreement between Executive Business Channel Limited, Futuremedia
Plc, Edvantage GB Limited, and Edvantage Group AS
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2
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Signature
pages to Asset Sale Agreement
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Page
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1.
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Definitions
and Interpretation
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1
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2.
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Sale
of Assets
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8
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3.
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Payment
of Consideration
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8
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4.
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Adjustments
of Final Cash Consideration
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10
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5.
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Net
Asset Statement
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11
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6.
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Conduct
of Business
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11
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7.
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Completion
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12
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8.
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Purchased
Contracts and Third Party Software Licenses
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13
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9.
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The
Liabilities
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14
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10.
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Employees
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14
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11.
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Pensions
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14
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12.
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Seller’s
Warranties
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14
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13.
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Purchaser’s
Warranties
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15
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14.
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Restriction
on Announcements
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15
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15.
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Confidentiality
of Information Received by the Purchaser
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15
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16.
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Value
Added Tax
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16
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17.
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Post
Completion Obligations
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17
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18.
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Restrictions
on the Seller
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18
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19.
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Counterparts
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19
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20.
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Further
Assurance
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19
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21.
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Variation,
Waiver and Consent
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19
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22.
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Entire
Agreement
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20
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23.
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Default
Interest
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20
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24.
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Notices
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20
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25.
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Costs
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21
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26.
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Rights
of Third Parties
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21
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27.
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Time
of the Essence
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22
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28.
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Continuing
Effect
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22
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29.
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Severability
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22
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30.
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Assignment
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22
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31.
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Governing
Law and Submission to Jurisdiction
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23
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Schedules
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SCHEDULE
1
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Warranties
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24
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SCHEDULE
2
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Trade
Marks and Domain Names
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33
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PART
1
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33
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Trade
Marks
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33
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PART
2
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33
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Domain
Names
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33
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SCHEDULE
3
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PART
1
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34
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Office
Equipment
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34
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PART
2
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36
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IT
Equipment
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36
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SCHEDULE
4
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PART
1
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39
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Leasehold
Property
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39
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SCHEDULE
5
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| Purchased Contracts |
40
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SCHEDULE
6
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| Pensions |
42
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SCHEDULE
7
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| Employees |
43
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PART
1
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43
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The
Transferring Employees
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43
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PART
2
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43
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Provisions
concerning Employees
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44
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PART
3
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Employee
Details
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SCHEDULE
8
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PART
1
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47
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Assets
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47
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PART
2
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47
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Excluded
Assets
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47
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PART
3
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47
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Excluded
Liabilities
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47
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SCHEDULE
9
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Allocation
of Consideration
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48
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Warranty
Limitations
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49
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(1)
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Futuremedia
Plc,
a
company incorporated in England and Wales with registered number
01616681,
whose registered office is at Nile House, Nile Street, Brighton,
East
Sussex, BN1 1HW (“Futuremedia”).
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(2)
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Executive
Business Channel Limited,
a
company incorporated in England and Wales with registered number
02862053,
whose registered office is at Nile House, Nile Street, Brighton,
East
Sussex BN1 1HW (the "Seller").
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(3)
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Edvantage
Group AS,
a
company incorporated in Norway, whose registered office is at Bygdøy, Allé
23, 0262 Oslo (the "Parent").
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(4)
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Edvantage
GB Limited
a
company incorporated in England and Wales with registered number
04627191,
whose
registered office is at 3A
Belton Street, Stamford, Lincolnshire, PE9 2EF (the “Purchaser”).
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1.1
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In
this Agreement, where the context so admits, the following words
and
expressions shall have the following
meanings:
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“Accounting
Date”
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means
30 June 2007;
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"Accounts
Receivable"
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all
book and other debts and notes receivable and other rights to payment
arising from the operation of the Business before the Completion
Date,
whether or not then invoiced and whether or not then due and
payable;
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“Agreed
Terms”
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means
a document or agreement in agreed form and for execution in such
form on
or after the date of this agreement;
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"Assets"
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the
Accounts Receivable, Office Equipment, Fixtures and Fittings, Goodwill,
Intellectual Property, IT Equipment, the benefit subject to the burden
of
the Purchased Contracts (and any liability associated with them in
accordance with the terms of this Agreement), Sales Documentation
and the
Technical Information all of which is listed in Schedule 8, Part
1, but
not including the Excluded Assets;
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"Business"
|
the
business of design,
development and implementation of e-learning and blended learning
programmes
as
carried on by the Seller up to the Completion
Date;
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"business
day"
|
a
day (other than a Saturday or a Sunday) on which banks are generally
open
for business in the City of London for the transaction of normal
banking
business;
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“Cash
Consideration”
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means
the total cash consideration being the Initial Cash Consideration
and the
Final Cash Consideration;
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"CHAPS"
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the
clearing houses automated payment system or any other method of electronic
transfer for same-day value;
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"Completion"
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completion
of the sale and purchase of the Business comprising the Assets in
accordance with clause 7;
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"Completion
Date"
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1
October 2008;
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"Condition"
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the
consent of Sackville TSP (GP) Limited to the Purchaser’s (or Purchaser’s
designee’s) sublet of the Leased Property;
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"Confidentiality
Agreement"
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the
confidentiality agreement signed by the Seller and the Purchaser
dated 26
June 2008;
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"Consideration"
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the
purchase price of the Assets to be paid by the Purchaser to the Seller
which is up to £___ consisting of the Cash Consideration and Consideration
Shares;
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"Consideration
Shares"
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the
fully paid shares of the Parent to be issued to the Seller or its
designee
in consideration for the transfer of Goodwill and Intellectual Property
to
the Parent with a value up to £___;
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"Defaulting
Party"
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as
defined in clause 23.1;
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"Disclosure
Letter"
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the
disclosure letter of today's date from the Seller to the Purchaser
including the Disclosure Material;
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"Disclosure
Material"
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all
information and documentation contained in the Disclosure Letter
(including the Due Diligence Data) together with all documents annexed
to
it;
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“Disposal”
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the
disposal (by one transaction or a series of transactions) of all
or a
substantial part of the business and undertaking of the
Parent;
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"Domain
Names"
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the
registered domain names owned by the Seller and relating to the Businesses
as set out in Schedule 2 Part 2;
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"Due
Diligence Data"
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the
written due diligence materials supplied to the Purchaser by the
Seller;
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"Encumbrance"
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any
restriction, assignment or any other interest, equity or other right
of
any person (including any right to acquire, option, right of first
refusal
or right of pre-emption), or any agreement or arrangement to create
any of
the same or any Security Interest;
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"Excluded
Assets"
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those
assets used in or relating to the Business which are excluded from
the
sale and purchase pursuant to this Agreement and which are identified
in
Schedule 8 Part 2;
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“Exchange
Date”
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means
the date hereof;
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"Excluded
Liabilities"
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those
liabilities relating to the Business which are not to be assumed
by the
Purchaser and which are identified in Schedule 8
Part 3;
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“Final
Cash Consideration”
|
means
the sum of £____ payable pursuant to clauses 3.1 and 4;
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"Fixtures
and Fittings"
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the
fixtures and fittings at the Leasehold Property owned by the Seller
on the
Completion Date and used exclusively in the Business;
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"Goodwill"
|
the
goodwill of the Seller to the extent that it relates exclusively
to the
Business including the exclusive right for the Purchaser to represent
itself as carrying on the Business in succession to the
Seller;
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“Initial
Cash Consideration”
|
the
Sum of £____ payable pursuant to clause 3.1;
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"Intellectual
Property"
|
the
Trade Marks (and the goodwill attaching to them), the Domain Names
and the
following rights used exclusively in the Business:
|
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“Interest”
|
means
interest payable during the period from the date on which the payment
is
due to the date of payment inclusive of both days, both before and
after
any judgment, at the Interest Rate then prevailing;
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“Interest
Rate”
|
means
the rate of 4% a year above the base lending rate of Barclays Bank
Plc;
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"IT
Equipment"
|
the
IT equipment, photocopiers and faxes which are set out in Schedule
3 Part
2;
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"Leasehold
Property"
|
the
leasehold premises described in Schedule 4 Part 1;
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"Lease"
|
the
lease in Agreed Terms for the Leasehold Premises, details of which
are
described in Schedule 4 Part 1;
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“Liabilities”
|
means
the liabilities of the Business outstanding at the Completion Date,
comprising the aggregate amount owed by the Seller in connection
with the
Business to or in respect of creditors as recorded in the books of
account
of the Business as at the Completion Date and all other claims against
the
Business, save for those liabilities the Purchaser has expressly
agreed to
assume or be responsible for;
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“Listing”
|
either:
(a)
the
admission by the Financial Services Authority in its capacity as
the UK
Listing Authority of any of the share capital to the Official List,
and
such admission becoming effective; or
(b)
the
admission by London Stock Exchange plc of any of the share capital
to
trading on the Alternative Investment Market, and such admission
becoming
effective; or
(c)
admission
of any of the share capital on a recognised investment exchange (within
the meaning of section 285 of the Financial Services and Markets
Act
2000);
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“Management
Accounts”
|
means
the unaudited balance sheet of the Seller made up as at 30 September
2008
and the trading and profit and loss account of the Seller for the
12
months period ending on 30 June 2008;
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“Net
Assets”
|
means
the net assets of the Business being assets less liabilities. Where
assets
are defined as: fixed assets, accounts receivable, work in progress
and
prepayments of the Business. And liabilities are defined as trade
creditors, deferred income, other creditors/accruals, VAT/Paye and
NIC of
the Business;
|
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“Net
Asset Statement”
|
means
the statement of the Net Assets on the date which is one business
day
before the Completion Date;
|
|
"Notice"
|
as
defined in clause 24;
|
|
“Office
Equipment”
|
the
office equipment, office furnishings and general office supplies
which are
set out in Schedule 3, Part 1;
|
|
"Pension
Scheme"
|
the
group personal pension scheme with Scottish Widows which the Seller’s
parent offers to the Transferring Employees and including the closed
group
personal pension scheme with Standard Life which the Seller’s parent
previously contributed to;
|
|
|
|
|
"Pension
Protection Regulations"
|
the
Transfer of Employment (Pension Protection) Regulations 2005 and
the
Pensions Act 1995;
|
|
“Post
Completion Revenue”
|
Revenue
of the Business as such is conducted by the Purchaser for the period
01
October 2008 to 31 December 2008;
|
|
“Post
Completion Revenue Statement”
|
the
statement of Post Completion Revenue to be prepared by Purchaser
and
delivered to Seller pursuant to clause 3.1;
|
|
"Purchased
Contracts"
|
the
agreements set out in Schedule 5 ;
|
|
"Purchaser's
Group"
|
the
Purchaser and its Subsidiaries and Holding Companies from time to
time and
the expression "member of the Purchaser's Group" shall be construed
accordingly;
|
|
"Purchaser's
Solicitors"
|
Cheyney
Goulding LLP of Ward House, Ward Street, Guildford, GU1
4LH;
|
|
“Purchaser’s
Solicitors Account”
|
Cheyney
Goulding LLP Client Account, Barclays Bank Plc, Guildford Friary,
Sort
Code: 20 35 35, Account Number 9056195;
|
|
“Restrictive
Covenant”
|
the
covenants contained in clause 18;
|
|
“Sale”
|
(a)
other
than as a result of an intra-group reorganisation, the completion
of an
agreement for the purchase of all or substantially all of the issued
share
capital of the Parent; or
(b)
The
completion of the acquisition or where more than one, the last such
acquisition, of issued share capital of the Parent made pursuant
to an
offer as a result of which the offeror becomes entitled or bound
to
acquire the remainder of such issued share capital, and for the purposes
of this definition, reference to the date of sale shall be construed
as a
reference to the date upon which the acquisition (or the last acquisition)
is completed and reference to the offeror shall include any person
with
whom he is acting in concert (as defined in The City Code on Take-overs
and Mergers);
|
|
"Sales
Documentation"
|
all
sales publications, advertising and promotional materials, printed
terms
and conditions of sale or supply, business forms, instructional material
and other sales materials which are owned by the Seller on the Completion
Date and relate to the Business;
|
|
"Security
Interest"
|
any
mortgage, charge, pledge, lien, hypothecation, security interest,
title
retention or any other agreement or arrangement the effect of which
is the
creation of security;
|
|
"Seller's
Group"
|
Futuremedia
plc and its Subsidiaries, Holding Companies, parent undertakings
and
subsidiary undertakings and the Subsidiaries and subsidiary undertakings
of its Holding Companies and parent undertakings from time to time
and the
expression "member of the Seller's Group" shall be construed
accordingly;
|
|
"Seller's
Solicitors"
|
DMH
Stallard, Gainsborough House, Pegler Way, Crawley, West Sussex RH11
7FZ;
|
|
"Seller's
Solicitors Account"
|
DMH
Stallard Client Account, National
Westminster Bank Plc, 8 Pavilion Buildings, Castle Square, Brighton,
East
Sussex BN1 1ES, Sort Code: 60 30 09, Account Number: 53447093;
|
|
"Shareholders
Agreement"
|
the
shareholders agreement related to the Purchaser in the Agreed
Terms;
|
|
"Subsidiary"
and "Holding Company"
|
have
the meaning attributed to those terms in Section 736 of the Companies
Act
1985;
|
|
"Taxation"
|
includes
(without limitation) all taxes, duties, levies, imposts, withholdings,
social security contributions, deductions or amounts in the nature
of
taxation, whenever and by whatever authority imposed and whether
of the
United Kingdom or elsewhere, together with all interest, fines, penalties
and surcharges imposed pursuant to any legislation relating to taxation
and which are incidental or relating thereto and "tax" and "taxes"
shall
be construed in like manner;
|
|
"Taxes
Act"
|
the
Income and Corporation Taxes Act 1988;
|
|
"Technical
Information"
|
such
of the following as are owned by the Seller on the Completion Date
and
used exclusively in connection with the Business: designs, patterns,
layouts, layout styles, layout guidance, models, masters, maps,
specifications, processes, operations sheets, instructions, data
and databases (including data that is displayed on the websites at
the
Domain Names and on other websites of the Seller or the Seller's
Group)
and other technical data including know how (however recorded, whether
in
writing or otherwise);
|
|
"Third
Parties"
|
as
defined in clause 26.1;
|
|
“Third
Party Software Licenses”
|
the
benefit (subject to the burden) of all licenses used exclusively
in the
Business and granted to or enjoyed by the Seller and in existence
on the
Completion Date with respect to third party software;
|
|
"Trade
Marks"
|
the
registered and unregistered trade marks owned by the Seller and relating
to the Business as set out in Schedule 2 Part 1;
|
|
"Transaction
Documents"
|
this
Agreement, the Disclosure Letter, assignment of Domain Names and
the deed
of assignment of Goodwill;
|
|
"Transferring
Employees"
|
those
employees of the Seller whose employment is to be transferred to
the
Purchaser, a list of whom appears in Schedule 7 Part
1;
|
|
“Transfer
Event”
|
a
Listing, Sale or a Disposal;
|
|
"Transfer
Regulations"
|
the
Transfer of Undertakings (Protection of Employment) Regulations 2006
as
amended or replaced;
|
|
"VAT"
|
value
added tax as defined in VATA;
|
|
"VATA"
|
Value
Added Tax Act 1994; and
|
|
"Warranties"
|
the
warranties contained or referred to in clause 13 and in
Schedule 1.
|
|
1.2
|
All
references to statutes, statutory provisions, enactments, EU Directives
or
EU Regulations shall include references to any consolidation,
re-enactment, modification or replacement of the same, any statute,
statutory provision, enactment, EU Directive or EU Regulation of
which it
is a consolidation, re-enactment, modification or replacement and
any
subordinate legislation in force under any of the same from time
to time
except to the extent that any consolidation, re-enactment, modification
or
replacement enacted after the date of this Agreement would extend
or
increase the liability of any party to another under this
Agreement.
|
|
1.3
|
References
to this Agreement include the recitals and Schedules which form part
of
this Agreement for all purposes. References in this Agreement to
the
parties, the recitals, Schedules and clauses are references respectively
to the parties and their legal personal representatives, successors
and
permitted assigns, the recitals and Schedules to and clauses of this
Agreement.
|
|
1.4
|
Clause
and paragraph headings and the table of contents are inserted for
ease of
reference only and shall not affect
construction.
|
|
(a)
|
words
importing one gender shall be treated as importing any gender, words
importing individuals shall be treated as importing corporations
and vice
versa, words importing the singular shall be treated as importing
the
plural and vice versa, and words importing the whole shall be treated
as
including a reference to any part
thereof;
|
|
(b)
|
references
to a person shall include any individual, firm, body corporate,
unincorporated association, government, state or agency of state,
association, joint venture or partnership, in each case whether or
not
having a separate legal personality. References to a company shall
be
construed so as to include any company, corporation or other body
corporate wherever and however incorporated or
established;
|
|
(c)
|
references
to the word "include" or "including" (or any similar term) are not
to be
construed as implying any limitation and general words introduced
by the
word "other" (or any similar term) shall not be given a restrictive
meaning by reason of the fact that they are preceded by words indicating
a
particular class of acts, matters or
things;
|
|
(d)
|
references
to any English statutory provision or legal term for any action,
remedy,
method of judicial proceeding, legal document, legal status, court,
official or other legal concept, state of affairs or thing shall
in
respect of any jurisdiction other than England be deemed to include
that
which most nearly approximates in that jurisdiction to the English
statutory provision or legal term or other legal concept, state of
affairs
or thing;
|
|
(e)
|
any
reference to "writing" or "written" includes any method of reproducing
words or text in a legible and non-transitory form but, for the avoidance
of doubt, shall not include e-mail;
|
|
(f)
|
references
to "indemnify" and to "indemnifying" any person by reference to any
matter, event or circumstance includes indemnifying and keeping that
person indemnified against all losses from time to time made, suffered
or
incurred as a direct or indirect consequence of or which would not
have
arisen but for that matter, event or
circumstance
|
|
(g)
|
references
to "parent undertaking" and to "subsidiary undertaking" shall have
the
meanings ascribed to them in section 258 of the Companies Act
1985;
|
|
(h)
|
references
to "sterling" or "£" or "pounds" are to the lawful currency of the United
Kingdom as at the date of this Agreement. References to "Euro" or
"€" are
to the single currency of the European Union constituted by the Treaty
on
European Union; and
|
|
(i)
|
references
to times of the day are to that time in London and references to
a day are
to a period of 24 hours running from midnight to
midnight.
|
|
1.6
|
A
document expressed to be "in the approved terms" means a document
the
terms of which have been approved by or on behalf of the parties
to this
Agreement and a copy of which has been signed or initialled for the
purposes of identification by or on behalf of those parties (in each
case
with such amendments as may be agreed by or on behalf of the parties
thereto).
|
|
1.7
|
The
expressions "the Seller" and "the Purchaser" include their respective
successors in title and the expressions "Seller's Group" and "Purchaser's
Group" shall be construed
accordingly.
|
|
2.1
|
Subject
to the terms and conditions of this Agreement, the Seller shall sell
with
full title guarantee (except as relates to the Third Party Software
Licenses which is sold without any title guarantee), and the Purchaser
shall purchase, for the Consideration, the Business as a going concern
and
all of the Assets free from all Encumbrances except those Encumbrances
disclosed in the Disclosure Material. The sale and purchase shall
take
effect from the Completion Date.
|
|
2.2
|
Nothing
in this Agreement shall operate to transfer from the Seller to the
Purchaser any of the Excluded Assets nor any other assets of the
Seller
except as specifically provided in this
Agreement.
|
|
2.3
|
Subject
to clause 8
the Seller hereby assigns to the Purchaser with effect from the Completion
Date the Intellectual Property.
|
|
3.1
|
The
Purchaser shall deliver the Consideration plus any VAT thereon (where
applicable), which shall be satisfied by the
Purchaser:
|
|
(a)
|
making
a transfer on the Exchange Date by payment by CHAPS to the Seller’s
Solicitors Account of the Initial Cash
Consideration.
|
|
(b)
|
making
a transfer by payment by CHAPS to the Purchaser’s Solicitors Client
Account of the Final Cash Consideration on the Completion Date, which
funds Purchaser shall procure to be delivered by CHAPS payment to
the
Seller Solicitors Account as
follows:
|
|
(c)
|
delivering
on the Completion Date to the Seller duly issued share certificates
for
___ Consideration Shares in the name of Futuremedia representing
part of
the Consideration Shares.
|
|
(d)
|
delivering
on the Completion Date four share certificates representing __
Consideration Shares each (total __ shares) to the Purchaser’s Solicitors
who shall hold such pursuant to this clause 3.1.
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|
(e)
|
the
Purchaser shall on or before 15 January 2009, deliver the Post Completion
Revenue Statement to the Seller. If upon receipt of the Post Completion
Revenue Statement the parties are unable to agree such within 10
business
days of the Seller’s receipt, then the provisions of clause 5 shall govern
resolution of the matter (substituting Post Completion Revenue Statement
for Net Asset Statement). If the Seller agrees the Post Completion
Revenue
Statement or the Expert (defined in clause 5.2) determines such,
the
Consideration Shares shall be released within 2 business days of
such
agreement or determination in accordance with sub-clause (f)
below.
|
|
(f)
|
the
Purchaser shall procure that the Purchaser’s Solicitors shall deliver the
Consideration Share certificates held pursuant to sub-clause (d)
above to
Futuremedia as follows:
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|
(g)
|
If
all the above targets are met the aggregate number of Consideration
Shares
delivered will be ___.Futuremedia covenants to transfer the following
Consideration Shares to the below stated individuals for £___ each
provided, in each instance, such individual continues to be employed
by
the Purchaser’s Group two years from the Completion Date or is not
employed at such time by reason of an unfair or wrongful dismissal
or
redundancy.
|
|
Name
|
Shares
|
|
Employee
1
|
___
|
|
Employee
2
|
___
|
|
Employee
3
|
___
|
|
(h)
|
Notwithstanding
sub-clause (g) above, upon the occurrence of a Transfer Event, subject
to
10 days prior written notice and payment of £1.00 in each instance,
Futuremedia shall deliver to the Purchaser a duly executed stock
transfer
form and related share certificate in respect of each individual
named in
sub-clause (g) above.
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|
3.2
|
The
Consideration shall be allocated between the Assets as specified
in
Schedule 9 save that the allocation for Accounts Receiveable shall be
adjusted per the Net Asset Statement and the allocation for Purchased
Contracts shall be adjusted per the Post Completion Revenue Statement.
The
allocation specified in Schedule 9 shall be adopted by the parties
for all purposes (including but not limited to Taxation). The
Consideration is exclusive of any VAT chargeable
thereon.
|
|
3.3
|
The
Consideration Shares shall be issued as fully paid with all the rights
to
vote, dividend and liquidation preference as set forth in the Parent’s
Articles.
|
|
3.4
|
The
Seller’s Solicitors are authorised to receive and remit the Cash
Consideration to Seller and delivery by the Purchaser shall be good
and
sufficient discharge of its obligations under clause
3.1.
|
|
3.5
|
In
the event that there is a warranty claim the Purchaser may withhold
payment of the Final Cash Consideration
if:
|
|
3.6
|
All
payments of Consideration due hereunder will be made without deduction
or
withholding for or on account of any present or future taxation unless
the
Purchaser is required by law to deduct or withhold such taxation.
In the
event of any such deduction or withholding being made, payments shall
be
increased by such additional amounts as will result in the receipt
of the
amounts which would have been received in respect thereof but for
such
withholding or deduction.
|
|
4.2
|
In
consideration of the Seller’s undertaking in clause 9 to pay all
Liabilities, the Purchaser hereby assigns all right, title and interest
in
the Accounts Receivable at the Completion Date to the
Seller.
|
|
5.2
|
If
the Seller and Purchaser fail to agree the Net Asset Statement, either
party may request that an independent firm of chartered accountants
(who
shall act as experts and not as arbitrators) (the “Expert”) be appointed
to accept or amend and certify the Net Asset Statement. The Expert
shall
be appointed by the Seller and Purchaser jointly, or in default of
agreement as to appointment within 2 days of one party notifying
the other
of their request, by the President for the time being of the Institute
of
Chartered Accountants in England and Wales (or any successor body)
on the
application of either party.
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|
5.3
|
The
Seller and Purchaser shall procure that the Expert shall render its
decision within 15 days of its appointment. The Seller and Purchaser
shall
cooperate with the Expert and supply the Expert with such documentation
and information as the Expert may request to permit the Expert to
render a
timely decision.
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|
5.4
|
The
Expert shall decide the apportionment of its charges between the
Seller
and the Purchaser but in the absence of such a decision each party
shall
pay one-half of such charges. If either the Seller or the Purchaser
does
not pay its due proportion of the charges payable within 10 working
days
of the date of demand, the other party shall be entitled to make
the
payment and the amount paid shall be a debt due from the party in
default
to the other party and shall be payable by the party in default with
Interest from the date of expenditure until
payment.
|
|
5.5
|
Agreement
of the Net Assets Statement by the Seller and Purchaser, or the
certificate of the independent firm of chartered accountants as the
case
may be, shall be final and binding upon the Seller and Purchaser
except in
the case of manifest error.
|
|
6.1
|
The
Seller shall carry on the Business as a going concern, and in an
efficient
and business like manner from the Exchange Date to the Completion
Date.
During that period the Seller shall, except as otherwise agreed by
the
parties or as contemplated by the Transaction
Documents:
|
|
(a)
|
not
sell or dispose of any of the Assets or remove any physical assets
from
the Leasehold Property except for the sale of stock in the ordinary
course
of business,
|
|
(b)
|
use
its reasonable commercial endeavours to maintain the trade, and trade
connections, of the Business, and not by any action, omission, default
or
neglect knowingly damage or risk damage to
them,
|
|
(c)
|
settle
the debts incurred by it in the ordinary course of the Business including
(without limitation) salaries, wages and other emoluments payable
to the
Employees,
|
|
(d)
|
not
enter into any material contract or incur capital expenditure in
excess of
£2,500 except with the prior written consent of the
Purchaser,
|
|
(e)
|
not
grant, create or agree to grant or create any mortgage, charge, debenture
or other encumbrance over or affecting any of the
Assets,
|
|
(f)
|
not
take on any new employee, terminate the employment of any of the
Employees, or make any change in the terms and conditions of employment
of
the Employees without the prior written consent of the Purchaser
or at its
request, and
|
|
(g)
|
not
permit any of its insurances to lapse or do or omit to do any thing
that
would make any policy of insurance void or
voidable.
|
|
(a)
|
place
the Purchaser in possession at the Leasehold Property of all of the
Office
Equipment, IT Equipment, Sales Documentation and Technical
Information;
|
|
(b)
|
and
if and to the extent the Purchaser may require delivery of the same,
deliver to the Purchaser duly executed assignments in the approved
terms
of the Purchased Contracts;
|
|
(c)
|
place
the Purchaser in possession of all the books of account, ledgers,
payroll
records, stock and asset records and other books and documents which
relate exclusively to the Business (other than minute books relating
to
directors' and shareholders' meetings and statutory books) in whatever
form and upon whatever media they may be
recorded;
|
|
(d)
|
deliver
to the Purchaser a certified copy of a resolution of the board of
directors of the Seller approving the sale of the Assets and Business
on
the terms of this Agreement and authorising any one of its directors
to
execute this Agreement for and on behalf of the
Seller;
|
|
(h)
|
deliver
an executed counterpart of the deed of adherence to the Shareholders
Agreement signed by Futuremedia.
|
|
(b)
|
a
certified copy of a resolution of the board of directors of the Purchaser
approving the purchase of the Assets and Business and the issuance
of
Consideration Shares on the terms of this Agreement and authorising
any
one of its directors to execute this Agreement for and on behalf
of the
Purchaser;
|
|
(d)
|
a
counterpart to a deed of adherence to the Shareholders Agreement
signed by
all shareholders of the Parent save for
Futuremedia.
|
|
7.4
|
The
Purchaser shall take over the Business with effect from the Completion
Date and shall assume responsibility for the management of the Business
in
all respects.
|
|
8.1
|
The
Purchaser agrees with the Seller with effect from the Completion
Date to
assume the obligations of and become entitled to the benefits of
the
Seller under the Purchased Contracts and the Third Party Software
Licences. The Purchaser shall carry out, perform and complete all
the
obligations and liabilities created by or arising under the Purchased
Contracts (except for any obligations or liabilities attributable
to a
breach arising before Completion on the part of the Seller or its
employees, agents or sub-contractors) and Purchaser and Parent, jointly
and severally shall indemnify the Seller and keep it fully indemnified
against all liabilities, losses, actions, proceedings, costs, claims
demands and expenses brought, made against or incurred by the Seller
under
the Purchased Contracts and the Third Party Software
Licenses.
|
|
8.2
|
The
Seller, with effect from the Completion Date, does hereby assign
to the
Purchaser or to the order of the Purchaser all the Purchased Contracts
and
the Third Party Software Licenses that are capable of assignment
without
the consent of other parties or any third
party.
|
|
8.3
|
This
agreement does not constitute an assignment in law or equity of any
Purchased Contract or the Third Party Software Licenses that requires
the
consent of a third party before it can be assigned. The following
provisions shall apply in respect of such Purchased Contracts and
the
Third Party Software Licenses:
|
|
(a)
|
The
Seller shall at the Purchaser's request and subject to the Purchaser’s
payment of the Seller’s costs, use reasonable endeavours with the
co-operation of the Purchaser to procure any necessary novation or
consent
of the Purchased Contracts and the Third Party Software
Licenses.
|
|
(b)
|
Unless
and until any such Purchased Contract is novated or assigned with
the
necessary consent, the Seller shall subject to the Purchaser’s payment of
the Seller’s costs hold the Purchased Contract in trust for the Purchaser
and its successors in title to the Business absolutely, and the Purchaser
shall (if sub-contracting is permissible and lawful under the Purchased
Contract in question) at the Purchaser’s request and subject to the
Purchaser’s payment of the Seller’s costs perform all the obligations of
the Seller under the Purchased Contract as the Seller's sub-contractor
subject to the Purchaser providing the Seller with resources necessary
to
comply with this sub-clause (b).
|
|
(c)
|
The
Purchaser shall not be entitled to a reduction in the Consideration
or to
terminate or rescind this Agreement if any of the Purchased Contracts
or
Third Party Software Licenses can not be assigned or novated or if
the
Purchaser shall not obtain the benefit of one or more of the Purchased
Contracts or Third Party Software
Licenses.
|
|
(d)
|
If
any of the Purchased Contracts is not novated or assigned, the Seller
shall co-operate with the Purchaser in any reasonable arrangements
designed to provide for the Purchaser the benefits under the Purchased
Contract, including enforcement, at the request and cost of the Purchaser,
of any and all rights of the Seller against the other party to the
contract arising out of any cancellation by such other party or otherwise
|
|
8.4
|
If
any Purchased Contract or Third Party Software License to which the
provisions of clause 8.3 apply is not novated or any necessary consent
is
refused or otherwise not obtained on terms reasonably satisfactory
to the
Purchaser within 9 months of the Completion Date either the Purchaser
or
the Seller shall be entitled at its sole discretion to terminate
that
Purchased Contract and, if the Purchaser makes such election, the
Seller
undertakes to serve proper notice to terminate that Purchased Contract
within 5 business days of receipt of notice to that effect from the
Purchaser. The Purchaser and Parent, jointly and severally, hereby
agree
that they will indemnify the Seller for any and all costs and expenses,
including but not limited to early termination charges, incurred
by the
Seller or any member of the Seller's Group in connection with the
early
termination of any Purchased Contracts or Purchasers use of any Third
Party Software License in accordance with this paragraph
8.
|
|
8.5
|
To
the extent that any payment is made to the Seller and Futuremedia
in
respect of the Purchased Contracts on or after the Completion Date,
the
Seller and Futuremedia shall receive the same as trustee, shall record
such payment separately in its books and shall account to the Purchaser
for the payment within 7 business days of
receipt.
|
|
9.1
|
The
Seller shall remain solely responsible for the discharge of all the
Liabilities (save as otherwise expressly provided in this agreement)
and
shall indemnify the Purchaser fully at all times from and against
any and
all claims, actions, proceedings, demands, liabilities, costs and
expenses
in connection with any of the
Liabilities.
|
|
9.2
|
The
Seller shall be responsible for, and shall indemnify the Purchaser
against, any and all claims, actions, proceedings, demands, liabilities,
costs and expenses arising after the Completion Date in respect of
any
services supplied by the Seller before the Completion Date which
arise as
a result of any act, omission or default of the Seller or its employees,
agents or sub-contractors occurring before the Completion
Date.
|
|
12.1
|
The
Seller warrants to the Purchaser that each of the statements set
out in
Schedule 1 is at the date hereof true and not misleading. Futuremedia
warrants to the Purchaser that the statements set out in Schedule
1
paragraphs 1.1, 1.2 and 1.3 at the date hereof are true and not
misleading.
|
|
12.2
|
The
Warranties are given subject to matters disclosed or referred to
in the
Disclosure Letter and any matter provided for in this Agreement or
the
documents referred to in clause 7.1. Any matters disclosed against
one of the statements set out in Schedule 1 shall be deemed to be
disclosed also against every other statement set out in Schedule
1.
|
|
12.3
|
Warranties
given so far as the Seller is aware (or on a similar basis) are deemed
to
be given to the best of the knowledge, information and belief of
Andrea
Miles, Liz Mcowat and George O’Leary after they have made reasonable
enquiries.
|
|
12.4
|
The
liability of the Seller in respect of any claims under the statements
set
out in Schedule 1 shall be limited and qualified as set out in Schedule
10.
|
|
(a)
|
the
Purchaser and the Parent have been duly incorporated and are validly
existing and, so far as the Purchaser and the Parent are aware, no
order
has been made, petition presented or meeting convened for the purpose
of
considering a resolution for the winding up of, or for an administration
order in respect of, the Purchaser and Parent and no distress, execution
or other process has been levied on any of their assets. The Purchaser
and
Parent are not insolvent or unable to pay their debts for the purposes
of
Section 123 of the Insolvency Act 1986 (or similar legislation applicable
to the business and assets of the
Purchaser);
|
|
(b)
|
the
Purchaser and Parent have all the requisite corporate power to execute,
deliver and perform the Transaction Documents and have taken all
necessary
corporate or other action to authorise the execution, delivery and
performance hereof. The Transaction Documents constitute legal, valid
and
binding obligations of the Purchaser and Parent enforceable in accordance
with their terms;
|
|
(d)
|
that
Purchaser and Parent (being any of its officers or directors) are
not
aware as at the date of this Agreement of any fact or matter which
might
entitle the Purchaser to make a claim or take any action against
the
Seller under this agreement or any of the transactions contemplated
by
this agreement.
|
|
(e)
|
the
Shareholders Agreement is the only agreement of its kind binding
upon all
shareholders of the Parent and the Shareholder Agreement is in full
force
and effect on this date.
|
|
15.1
|
Without
prejudice to any accrued rights under the Confidentiality Agreement,
the
Purchaser and Parent undertake with the Seller and Futuremedia that
they
shall treat as strictly confidential all information received or
obtained
by them or their employees, agents or advisers as a result of entering
into or performing this Agreement relating to the business or affairs
of
the Seller or any member of the Seller's Group and subject to the
provisions of clause 15.2
that
they will not at any time hereafter make use of or disclose or divulge
to
any person any such information and shall use its best endeavours
to
prevent the publication or disclosure of any such
information.
|
|
15.2
|
The
restrictions contained in clause 15.1
shall not apply to any information (i) relating exclusively to the
Business or (ii) so as to prevent the Purchaser from making any disclosure
required by law or by any securities exchange or supervisory or regulatory
or governmental body pursuant to rules to which the Purchaser is
subject
or from making any disclosure to any professional adviser for the
purposes
of obtaining advice (subject to clause 14
and provided always that the provisions of this clause 15
shall apply to and the Purchaser shall procure that they apply to
and are
observed in relation to, the use or disclosure by such professional
adviser of the information provided to him) nor shall the restrictions
apply in respect of any information which comes into the public domain
otherwise than by a breach of this clause 15
by
the Purchaser.
|
|
16.1
|
References
in this clause 16
to
"Sections" and "Schedules" are to Sections of and Schedules to the
VATA.
|
|
16.2
|
The
Purchaser warrants to the Seller that the Purchaser is a taxable
person
within the meaning of Section 3 with registration number 809595000
and
that the Purchaser intends to use the Assets after Completion in
carrying
on the same kind of business as that carried on by the Seller prior
to
Completion.
|
|
16.3
|
The
Seller and the Purchaser agree that the sale of the Assets described
in
this Agreement constitutes the transfer of a business as a going
concern,
and shall use all reasonable endeavours to procure that the provisions
of
Section 49 and article 5 of the Value Added Tax (Special Provisions)
Order
1995 (SI/1995/1268) (“Order”) apply to the sale and purchase of the Assets
under this Agreement such that the sale of the Assets fails to be
treated
as either a supply of goods or a supply of services for VAT purposes
and
that no VAT shall be chargeable in respect
thereof.
|
|
16.4
|
If,
not withstanding clause 16.3,
HM Revenue and Customs determine in writing that VAT is chargeable
in
respect of the sale of any of the Assets under this Agreement, the
Seller
shall forthwith provide to the Purchaser a copy of such written
determination, together with a valid VAT invoice complete in all
respects
in relation to any VAT chargeable. The VAT so chargeable shall be
paid by
the Purchaser to the Seller on the earlier of two business days after
the
receipt by the Purchaser of credit or repayment from HM Revenue and
Customs in respect of such VAT and two business days prior to the
date on
which the Seller is liable to account for the same to HM Revenue
and
Customs.
|
|
16.5
|
The
Seller shall make a request pursuant to Section 49 for a direction
from HM
Revenue and Customs that the Seller may retain the records referred
to in
section 49(1)(b) so far as they relate to the carrying on of the
Business
prior to Completion. If such direction is given, the Seller shall
preserve
such records in good order and in such manner and for such period
as shall
be required by law and shall grant the Purchaser reasonable access
during
business hours for the purposes of inspecting and copying (at the
Purchaser's own expense) such records. If such direction is not given,
the
Seller shall deliver such records to the Purchaser as soon as possible
after Completion and the Purchaser shall preserve such records in
good
order and in such manner and for such period as shall be required
by law
and shall grant the Seller reasonable access during business hours
for the
purposes of inspecting and copying (at the Seller's own expense)
such
records.
|
|
16.6
|
The
Purchaser and Parent jointly and severally shall indemnify and keep
indemnified the Seller against any liability of the Seller in respect
of
penalties, interest or surcharges relating to VAT to the extent that
such
penalties, interest or surcharges are attributable to any supply
made by
the Seller under this Agreement. In the event that any payment made
by the
Purchaser under this sub-clause is chargeable to Taxation in the
hands of
the Seller (or would be so chargeable on the assumption that the
Seller
has taxable profits and no available reliefs), the amount payable
under
this sub-clause shall be increased so that the amount received and
retained by the Seller after Taxation is equal to the amount the
Seller
would have received and retained had such payment not been chargeable
to
Taxation.
|
|
16.7
|
The
Purchaser hereby notifies the Seller that paragraph 5(2B) of the
Order
does not apply to the Purchaser or any member of the Purchaser's
VAT
group.
|
|
17.1
|
After
the Completion Date, the Purchaser shall, and shall procure that
all other
members of the Purchaser's Group shall, afford to the Seller and
all other
members of the Seller's Group and their respective representatives
reasonable access, during normal business hours, to the books and
records
of the Business as carried on by the Seller prior to the Completion
Date
to the extent that the same are delivered at Completion and insofar
as
they relate to events, acts or omissions prior to and including the
Completion Date (and shall permit such persons to examine and copy
such
books and records to the extent reasonably requested by such party)
and
shall cause the directors, officers and employees of the Purchaser
or
other members of the Purchaser's Group to furnish all information
requested by the Seller in connection with financial, reporting and
tax
matters (including financial and tax audits and tax contests) and
for
other similar business purposes. The Purchaser shall procure that
all such
books and records are maintained in the country in which such books
and
records were located prior to Completion and, until after the fifth
anniversary of the Completion Date, shall not destroy or dispose
of any
such books and records without the prior written consent of the Seller,
such consent not to be unreasonably withheld or delayed; provided,
however, that if the Seller does not, upon receipt of a notice indicating
an intention to destroy such books and records, consent thereto,
the
Purchaser (or its successors) may deliver them to the Seller at the
Seller's expense.
|
|
17.2
|
After
the Completion Date, the Seller shall, and shall procure that all
other
members of the Seller's Group shall, afford to the Purchaser and
its
representatives reasonable access, during normal business hours,
to the
books and records of the Seller as may be reasonably necessary (i)
to
confirm the accuracy of the statement drawn up under clause 5 and
(ii) in
connection with the carrying on of the Business after the Completion
Date
insofar as such books and records relate to the carrying on of the
Business prior to the Completion
Date.
|
|
17.3
|
The
Purchaser shall carry on the Business after Completion for the period
1
October 2008 to 31 December 2008 as a going concern and in an efficient
and business like manner and use reasonable commercial endeavours
to
maintain trade and trade connections of the
Business.
|
|
17.4
|
In
the event the Condition is not satisfied at Completion, the Seller
will
grant the Purchaser a license to occupy the Leasehold Property provided
that the Purchaser executes the Lease (or any lease in terms substantially
similar to the Lease) upon satisfaction of the
Condition.
|
|
17.5
|
Futuremedia
irrevocably and unconditionally guarantees to the Purchaser, as primary
obligor, full prompt and complete performance by the Seller of all
its
obligations contained in clause 12 and the payment of all sums due
from
time to time to the Purchaser by virtue of any provision of this
agreement
or in consequence of any breach of any such provision. For so long
as any
sum remains due , Futuremedia must pay the sum to the Purchaser on
demand
and make good to the Purchaser all loss, damage, costs and expenses
arising, or incurred by the Purchaser, in connection with the Seller’s
failure to pay the sum. This guarantee is a continuing guarantee
and shall
remain in full force and effect so long as any sums remain due by
the
Seller to the Purchaser or any of the obligations of the Seller under
clause 12 have yet to be fully
satisfied.
|
|
17.6
|
The
Parent irrevocably and unconditionally guarantees to the Seller,
as
primary obligor, full prompt and complete performance by the Purchaser
of
all its obligations contained in clause 3.1, 4, and 16 and the payment
of
all sums due from time to time to the Seller by virtue of any provision
of
this agreement or in consequence of any breach of any such provisions.
For
so long as any sum remains due or any obligation or provision remains
to
be performed or observed, the Parent must pay the sum to the Seller
on
demand and make good to the Seller all loss, damage, costs and expenses
arising, or incurred by Seller, in connection with the Purchaser’s failure
to pay the sum or to perform or observe the obligation or provision.
This
guarantee is a continuing guarantee and shall remain in full force
and
effect so long as any sums remain due by the Purchaser to the Seller
or
any of the obligations of the Purchaser under this agreement have
yet to
be fully performed or satisfied.
|
|
18.1
|
The
Seller and Futuremedia undertake to procure that they and no member
of the
Seller's Group will either on their own account or in conjunction
with
others and whether directly or
indirectly:
|
|
(a)
|
for
a period of 3 years from Completion establish, develop, carry on
or assist
in carrying on, be engaged, concerned, interested or employed in,
or
provide technical commercial or professional advice to any other
business,
enterprise or venture supplying goods or services competitive with
the
Business at Completion;
|
|
(b)
|
for
a period of 3 years from Completion solicit, canvass or entice away
(or
endeavour to solicit, canvass or entice away) from the Business or
the
Purchaser the custom of any person, firm or company who was at any
time
during the period of 12 months immediately preceding Completion a
client
or customer of the Business, or in the habit of dealing with the
Seller in
relation to the Business, for the purpose of offering to that client
or
customer goods or services similar to or materially competing with
those
of the Business;
|
|
(c)
|
for
a period of 3 years from Completion deal or contract with any person,
firm
or company who was at any time during the period of 12 months immediately
preceding Completion a client or customer of the Business or in the
habit
of dealing with the the Seller in relation to the Business for the
purpose
of offering to that person, firm or company goods or services similar
to
or materially competing with those of the
Business;
|
|
(d)
|
for
a period of 3 years from Completion solicit, canvass or entice away
(or
endeavour to solicit, canvass or entice away) any of the Employees
employed in a managerial, supervisory, technical, sales or administrative
capacity from the Purchaser or any of its subsidiaries for the purposes
of
employment by the Seller or a member of the Seller's Group in an
enterprise or venture materially competing with the Business, whether
or
not the employee would commit a breach of contract by reason of leaving
service. Nothing in this sub-clause (d) shall prevent Seller from
hiring
any person (including a person referenced in this sub-clause (d)
above)
stemming from an unsolicited approach from such
person.
|
|
(e)
|
for
a period of 3 years from Completion disclose any know-how to any
person or
use it for any purpose and will use reasonable endeavors to prevent
the
publication or disclosure of any know-how;
and.
|
|
(f)
|
at
any time after Completion carry on business or trade under a name
suggesting any connection with the Business or the Purchaser save
that the
Seller shall have the right to use the “futuremedia” name in conjunction
with any business other than the
Business.
|
|
18.2
|
The
Seller and Futuremedia shall procure that notwithstanding that any
subsidiary of the Seller at the date of this agreement ceases to
be a part
of the Seller's Group, every covenant set out in clause 18.1 shall
nonetheless be binding upon the subsidiary after it has left the
Seller's
Group.
|
|
18.3
|
Each
covenant contained in clause 18.1 shall be construed as a separate
covenant, and if one or more of the covenants is held to be against
the
public interest or unlawful or in any way an unreasonable restraint
of
trade the remaining covenants shall continue to bind the Seller and
Futuremedia.
|
|
18.4
|
If
any covenant contained in clause 18.1 would be void as drawn but
would be
valid if the period of application were reduced or if some part of
the
covenant were deleted, the covenant in question shall apply with
such
modification as may be necessary to make it valid and
effective.
|
|
18.5
|
The
Seller shall promptly refer to the Purchaser all enquiries relating
to the
Business the Seller may in future receive, including enquiries or
orders
for any stocks, spare parts, accessories and other equipment manufactured
or sold in connection with the Business, and assign to the Purchaser
(so
far as the Seller is able) all orders relating to the
Business.
|
|
21.1
|
No
variation or waiver of any provision or condition of this Agreement
shall
be effective unless it is in writing and signed by or on behalf of
all the
parties (or, in the case of a waiver, by or on behalf of the party
waiving
compliance).
|
|
21.2
|
Unless
expressly agreed, no variation or waiver of any provision or condition
of
this Agreement shall constitute a general variation or waiver of
any
provision or condition of this Agreement, nor shall it affect any
rights,
obligations or liabilities under or pursuant to this Agreement which
have
already accrued up to the date of variation or waiver, and the rights
and
obligations of the parties under or pursuant to this Agreement shall
remain in full force and effect, except and only to the extent that
they
are so varied or waived.
|
|
21.3
|
Any
consent granted under this Agreement shall be effective only if given
in
writing and signed by the consenting party and then only in the instance
and for the purpose for which it was
given.
|
|
22.1
|
The
Transaction Documents together constitute the whole and only agreement
between the parties in relation to the sale and purchase of the Business
and supersede any previous agreement (whether written or oral) between
the
parties in relation to the subject matter of any such document.
|
|
22.2
|
Each
party acknowledges that, in entering into the Transaction Documents,
it
does not rely on any statement, representation, assurance or warranty
of
any person (whether a party to this agreement or not) other than
as
expressly set out in those
documents.
|
|
22.3
|
Each
party agrees that the only right and remedy available to it arising
out of
or in connection with any breach of the Transaction Documents shall
be for
monetary damages for breach of contract. Neither party shall have
any
unilateral right to rescind this Agreement under any
circumstance.
|
|
23.1
|
If
any party which is required to pay any sum under this Agreement fails
to
pay any sum payable by it under this Agreement on the due date for
payment
(the "Defaulting Party"), it shall pay interest on such sum for the
period
from and including the due date up to the date of actual payment
(after as
well as before judgement) in accordance with this
clause.
|
|
23.3
|
Interest
under this clause 23
shall accrue on the basis of the actual number of days elapsed and
a
365-day year and shall be paid by the Defaulting Party on demand.
Unpaid
interest shall compound monthly.
|
|
24.1
|
Save
as otherwise provided in this Agreement, any notice, demand or other
communication ("Notice") to be given by any party under, or in connection
with, this Agreement shall be in writing and signed by or on behalf
of the
party giving it. Any Notice shall be served by sending it by fax
to the
number set out in clause 24.2,
or delivering it by hand to the address set out in
clause 24.2
and in each case marked for the attention of the relevant party set
out in
clause 24.2
(or as otherwise notified from time to time in accordance with the
provisions of this clause 24).
Any Notice so served by fax or hand shall be deemed to have been
duly
given or made as follows:
|
|
(a)
|
Seller/Futuremedia
|
Futuremedia
plc
|
||
|
Address:
|
Nile
House
|
|||
|
Nile
Street
|
||||
|
Brighton,
East Sussex
|
||||
|
BN1
1HW
|
||||
|
Fax:
|
+44(0)1273
829702
|
|||
|
For
the attention of:
|
Company
Secretary
|
|||
|
(b)
|
Purchaser/Parent
|
Edvantage
Group AS
|
||
|
Address:
|
Bygdøy,
Allé 23, 0262 Oslo
|
|||
|
Fax:
|
||||
|
For
the attention of:
|
Oivind
Falch
|
|
24.3
|
A
party may notify all other parties to this Agreement of a change
to its
name, relevant addressee, address or fax number for the purposes
of this
clause 24,
provided that such notice shall only be effective
on:
|
|
(b)
|
if
no date is specified or the date specified is less than five business
days
after the date on which notice is given, the date following five
business
days after notice of any change has been
given.
|
|
24.4
|
In
proving service it shall be sufficient to prove that the envelope
containing such notice was properly addressed and delivered to the
address
shown thereon or that the facsimile transmission was made and a facsimile
confirmation report was received, as the case may
be.
|
|
26.1
|
Subject
to the remaining provisions of this clause 26,
any other member of the Seller's Group or any other member of the
Purchaser’s Group ("Third Parties") may enforce the terms and accordingly
shall have the benefit of those provisions in this agreement (including
without limitation the provisions of clause 8.1
and paragraph 4 of Schedule 7 Part 2) which are, or are stated to
be, for
their benefit subject to and in accordance with the provisions of
the
Contracts (Rights of Third Parties) Act
1999.
|
|
26.2
|
The
parties may by agreement terminate, rescind or vary the terms of
this
Agreement (including this clause 26)
at any time and in any way without the prior consent of or notice
to any
Third Party.
|
|
26.3
|
The
individuals whose names appear in clause 3.1(g)
may enforce their rights against
Futuremedia.
|
|
26.4
|
Except
as provided in this clause 26,
the parties do not intend that any term of this Agreement shall be
enforceable by virtue of the Contracts (Rights of Third Parties)
Act 1999
by any person who is not a party to this
Agreement.
|
|
27.2
|
one
party fails to perform an obligation by the time specified in this
Agreement and the other parties serve a notice on the defaulting
party
requiring it to perform the obligation by a specified time and stating
that time is of the essence in relation to that
obligation.
|
|
30.1
|
Subject
to clause 30.2,
no party shall be entitled to assign the benefit or burden of any
provision of this Agreement without the prior written consent of
each
other party.
|
|
30.2
|
All
or any of the Seller's rights (but not any burden) under this Agreement
(including, without limitation, in respect of the Warranties) may
(notwithstanding any other provisions contained in this agreement)
be
assigned or transferred by the Seller to, or made the subject of
a trust
created in favour of:
|
|
(a)
|
any
other member of the Seller's Group (or by any such member to or in
favour
of any other member of the Seller's Group);
and/or
|
|
30.3
|
All
or any of the Purchaser's rights (but not any burden) under this
Agreement
(including, without limitation, in respect of the Warranties) may
(notwithstanding any other provisions contained in this agreement)
be
assigned or transferred by the Purchaser to, or made the subject
of a
trust created in favour of:
|
|
(a)
|
any
other member of the Purchaser's Group (or by any such member to or
in
favour of any other member of the Purchaser's Group);
and/or
|
|
31.1
|
The
construction, validity and performance of this Agreement shall be
governed
by the laws of England and Wales.
|
|
31.2
|
The
parties to this Agreement irrevocably agree that the courts of England
and
Wales shall have exclusive jurisdiction over any claim or matter
arising
under or in connection with this agreement and that accordingly any
proceedings in respect of any such claim or matter shall be brought
in
such court.
|
|
1.1
|
The
Seller is a company duly incorporated and existing under the laws
of
England authorised to do business in England and Wales and has all
requisite corporate power and authority to enter into and complete
this
agreement without obtaining the consent of any third
party.
|
|
1.2
|
Compliance
with the terms of this agreement and any document entered into by
the
Seller in accordance with it does not and will not conflict with
or result
in a breach of any of the provisions of the Seller's memorandum or
articles of association or any agreement or other obligation made
or given
by the Seller, save for the Purchased
Contracts.
|
|
1.3
|
Neither
the Seller nor the Seller’s Group have any interest directly or indirectly
in any company or business other than the Business which is or is
likely
to be or become competitive with the Business.
|
|
3.1
|
All
of the Seller's accounts, books, ledgers, financial and other records
of
every kind relating to the Business have been fully and accurately
maintained in accordance with generally accepted accounting practices
and
standards. There are no material inaccuracies or discrepancies of
any kind
contained or reflected in any of them and in each instance they give
and
reflect a true and fair view, with respect to the information contained
therein, of the financial, contractual and trading position of the
Seller
in relation to the Business.
|
|
3.2
|
Without
limiting paragraph 4.1, all proper records have been kept and all
proper
returns and payments made as required by law for the purposes of
the
enactments relating to VAT in connection with the Business.
|
|
4.1
|
the
Business has been carried on in the ordinary and usual course, without
entering into any transaction, assuming any liability or making any
payment not provided for in the Accounts or the Management Accounts
which
is not in the ordinary course of the Business, and without interruption
or
alteration in the nature, scope or manner of the
Business,
|
|
4.2
|
the
Seller has not entered into or agreed to enter into any capital
commitments in excess of £1,000 in relation to the
Business,
|
|
4.3
|
there
has been no material deterioration in the financial position or prospects
or turnover of the Business or in the value of the
Assets,
|
|
4.4
|
there
has been no disposal of the Assets other than trading stock in the
ordinary course of trading,
|
|
4.5
|
there
has been no unusual increase in any stocks or work-in-progress, no
fixed
assets or stocks of the Business have been written up or revalued,
nor
will they be before the date of Completion,
and
|
|
4.6
|
the
Seller has not knowingly done or omitted to do anything that might
prejudicially affect the Goodwill or the
know-how.
|
|
5.1
|
The
acquisition of the Business or the Assets by the Purchaser, or compliance
with the terms of this agreement will not, except as relates to the
Purchased Contracts:
|
|
5.1
.1
|
so
far as the Seller is aware cause the Business to lose the benefit
of any
right or privilege it presently enjoys or cause any person who normally
does business with the Business not to continue to do so on the same
basis
as previously;
|
|
5.1.2
|
relieve
any person of any obligation to the Business or the Seller in respect
of
the Business, whether contractual or otherwise, or enable any person
to
determine any such obligation or any right or benefit enjoyed by
the
Business or to exercise any right whether under an agreement with
the
Business or otherwise in respect of
it;
|
|
5.1.3
|
give
rise to or cause to become exercisable any right of pre-emption relating
to the Business or any of the
Assets;
|
|
(a)
|
the
terms, conditions or provisions of any agreement, understanding,
arrangement or instrument; or
|
| (b) |
any
order, judgment or decree of any court or government agency to which
the
Seller is a party or by which the Seller is bound in relation to
the
Business; and
|
| 5.1.5 |
result
in the repayment of any loans granted to the Seller in relation to
the
Business or any Asset.
|
|
5.2
|
Except
as relates to the Purchased Contracts, to the best of the knowledge
and
belief of the Seller the relationship of the Business with clients,
customers, suppliers and employees will not be adversely affected
by the
execution, completion, or implementation of this
agreement.
|
|
6.1
|
The
Seller has good and marketable title to all the Assets and, except
as set
out in the Disclosure Letter, owns all the Assets absolutely free
from and
not subject to any agreement, or commitment to give or create any
mortgage, charge, lien, option, bill of sale, leasing agreement,
hire
purchase agreement, credit sale or conditional sale agreement or
any other
encumbrance or claim of any kind (excepting only liens arising in
the
ordinary course of trading or Encumbrances arising under the Third
Party
Software Licenses, and in particular no stocks are subject to any
reservation of title in favour of any third party or are purchased
generally on terms that ownership does not pass to the Seller until
full
payment is made to the supplier.
|
|
6.3
|
The
work-in-progress is at its normal level having regard to current
orders
and to orders reasonably anticipated from customers of the
Business.
|
|
6.4
|
The
Assets comprise all assets now used in the Business. No asset is
shared by
the Business with any other person and the Business does not depend
for
its business upon any assets, facilities or services owned or supplied
by
any member of the Seller's Group.
|
|
6.5
|
All
documents that in any way affect the right, title or interest of
the
Seller in or to any of the Assets on which stamp duty or stamp duty
land
tax was payable were either duly stamped within the requisite period
for
stamping or the necessary returns made with the correct amount of
duty.
|
|
6.6
|
Schedules
3 Part 1 and Schedule 3 Part 2 contain full and accurate details
of the
Office Equipment and the IT Equipment
respectively.
|
|
6.7
|
The
Fixtures and Fittings, Office Equipment and the IT Equipment do not
contravene any requirement or restriction having the force of law
and are
operating to a satisfactory level.
|
|
6.8
|
The
capital goods scheme as contained in the Value Added Tax Regulations
1995
regulations 112 to 116 applies only to the assets and properties
specified
in the Disclosure Letter and to no other assets of the Business.
In the
case of every asset or property to which the scheme applies the Disclosure
Letter correctly states the period of adjustment within the meaning
of
regulation 114, the date of commencement of the first interval within
the
meaning of regulation 114, the total input tax on the capital item
within
the meaning of regulation 115, and the extent to which the capital
item
was used in making taxable supplies in the first interval applicable
to
it.
|
| 7.1 |
The
Seller is not in relation to the Business and/or the Assets a party
to or
subject to any Purchased Contract
which
|
| 7.1.1 |
is
for the supply of goods and/or services by or to the Seller on terms
under
which future discounts, price reductions or other financial incentives
are
given by or to the Seller dependent on the level of purchases or
any other
factor,
|
| 7.1.2 |
is
not on arm's length terms or is in any way other than in the ordinary
and
proper course of the Business,
|
| 7.1.3 |
is
known by the Seller to have been likely to result in a loss to the
Seller
on completion of performance if the Seller had not sold the Business
pursuant to this agreement,
|
| 7.1.4 |
involves
or is likely to involve obligations, restrictions, expenditure or
receipts
of an unusual, onerous or exceptional nature and not in the ordinary
course of the Business, or
|
|
10.3
|
During
the 12 months ending on Completion as far as the Seller is aware
there has
been no substantial change in the bases or terms on which any person
is
prepared to enter into contracts or do business with the Seller in
respect
of the Business (apart from normal price
changes).
|
|
10.4
|
No
customer who accounted for 5% or more of the sales income relating
to the
Business during the 12 months preceding Completion has ceased trading
with
the Seller in relation to the Business or indicated to the Seller
an
intention to do so.
|
|
10.5
|
Neither
more than 15% of the aggregate amount of all the purchases nor more
than
15% of the aggregate amount of all the sales of the Business are
obtained
or made from or to the same supplier or customer (including any person
in
any way connected with a supplier or customer), and, as far as the
Seller
is aware, no material source of supply to the Business or any material
outlet for the sales of the Business is in jeopardy or likely to
be in
jeopardy.
|
|
11.1
|
The
Seller is the absolute beneficial owner, registered proprietor or
licensee
of the Intellectual Property Rights, and there are no subsisting
licences
or other agreements under which the Seller has granted to any third
party
any rights or interest in connection with the Intellectual Property
Rights
or any rights to any know-how or confidential information relating
to the
Business.
|
|
11.2
|
The
Business has sufficient intellectual property rights in the Intellectual
Property Rights in order to operate the Business as conducted by
the
Seller, and the operations of the Business do not infringe and are
not
likely to infringe any patent or other rights of any kind vested
in any
other party or give rise to the payment of any royalty or similar
sum or
involve the use of any confidential information of any other
party.
|
|
11.3
|
The
Seller owns the copyright in the designs of all its Sales Documentation
and so far as the Seller is aware none of them infringe any right
of any
other person or involve the unlicensed use of confidential information
disclosed to the Seller by any
person.
|
|
11.4
|
To
the best of the Seller's knowledge, information and belief there
has been
no infringement of the Intellectual Property Rights at any time during
the
period of 18 months before the date of this
agreement.
|
|
11.5
|
To
the best of the Seller's knowledge, there is no actual or prospective
challenge to the validity of the Intellectual Property
Rights
|
|
14.1
|
The
Seller is not engaged in any litigation, arbitration, prosecution
or other
legal proceedings in connection with the Business, and in particular
with
any substantial customer or customers of the Business, and, as far
as the
Seller is aware, there are no facts likely to give rise to any legal
proceedings. The Seller has not been a party to any undertaking or
assurance given to any court or government agency relating to the
Business
and/or its Assets which is still in
force.
|
|
14.2
|
There
has not been any exercise or purported exercise of, or claim for,
any
charge, lien, encumbrance or equity over any of the Assets, and,
as far as
the Seller is aware, there is no dispute directly or indirectly relating
to any of the Assets.
|
|
15.1
|
The
details set out in Schedule 7 Part 3 are true and accurate at the
date
hereof and will remain true and accurate at Completion and the Seller
will
be permitted to give written notification of any change by amending
the
Disclosure letter on or before Completion. The Seller is not under
any
legal or moral commitment to change or vary any of these details
and will
not enter into any such commitment before Completion. The information
contained in Schedule 7 is true and correct in all respects and,
except as
set out in the Due Diligence Data no other persons are employed by
the
Seller in connection with the Business at the Exchange Date. There
are no
stock option or other schemes either in operation or proposed whereby
any
of the Employees is or is to be entitled to any shares or to any
commission or remuneration of any sort calculated by reference to
the
turnover, profit or sales of the Seller.
|
|
15.2
|
All
accrued holiday pay due to any of the Employees up to the date of
Completion is set out in Schedule 7 or the Disclosure
Letter.
|
| 15.3.3 |
damages
or compensation for wrongful dismissal, unfair dismissal or any form
of
discrimination or otherwise,
|
| 15.3.4 |
failure
to comply with any order for reinstatement or re-engagement of any
employee engaged in connection with the Business,
or
|
| 15.3.5 |
actual
or proposed termination or suspension of employment or variation
of any
contract of employment of any present or former director or employee
of
the Seller employed in connection with the
Business.
|
|
15.4
|
All
of the Employees, and all other workers involved in the Business
in any
way, are legally entitled to be in and work in the United
Kingdom.
|
| 15.5.1 |
all
obligations imposed on it by all statutes, regulations and codes
of
conduct and practice relevant to the relations between it and any
employee
or trade union, including without limitation the Working Time Regulations
1998 and any obligations under the Environmental
Laws,
|
| 15.5.2 |
all
collective agreements, customs and practices for the time being dealing
with relations between the Seller and any employee or trade union
or the
terms and conditions of service of any of the Employees,
and
|
| 15.5.3 |
all
relevant orders, declarations and awards made under any relevant
statute,
regulation or code of conduct and practice affecting the conditions
of
service of any of the Employees.
|
|
15.6
|
There
are no contracts of employment or consultancy agreements in existence
between the Seller and any of the Employees that cannot be terminated
by 3
months' notice or less, or where not reduced to writing by reasonable
notice, without giving rise to any claim for damages or compensation
other
than a statutory redundancy payment or statutory compensation for
unfair
dismissal. The Seller has not given nor received notice to terminate
the
contract of employment of any of the Employees or any other person
employed in the Business that expires on or after the date of
Completion.
|
|
15.7
|
The
Seller has not offered a contract of employment or for services to
any
person not named as one of the Employees, and will not do so before
Completion.
|
|
16.1
|
Apart
from the provision made by the Pension Scheme, there are no retirement,
death or disability benefit schemes for employees in existence, or
obligations to employees relating to retirement, death or disability
under
which the Seller’s Group is or may become liable to make payments, nor has
any proposal been announced or moral commitment given to establish
any,
and no pension, retirement or sickness gratuity is currently being
paid or
has been promised by the Seller’s Group to or in relation to any
employee.
|
|
16.2
|
All
contributions which have become payable by the Seller’s Group under the
Pension Scheme have been paid.
|
|
16.3
|
Copies
of all explanatory booklets, announcements and other communications
to
employees relating to the Pension Scheme have been delivered to the
Purchaser. The Seller’s Group has no obligation under the Pension Scheme
in respect of any employee other than under the documents referred
to in
this paragraph 15.3.
|
|
16.4
|
All
requirements and obligations of the Seller’s Group under the Pension
Scheme have been duly observed and performed, there is no dispute
over the
benefits payable under the Pension Scheme.
|
|
16.5
|
No
undertaking, promise or indication, whether legally enforceable or
not,
has been given to any Transferring
Employee:
|
|
16.5.2.2
|
to
provide a particular level of benefits, for example but without
limitation, a pension of two-thirds of his final salary at
retirement.
|
|
16.6
|
The
Pension Scheme has not been operated (and will not any time before
the
date of Completion be operated) in such a way as to discriminate
on any
grounds whatsoever between the members of the Pension Scheme. No
complaint
or claim has been made on the grounds of such discrimination, so
far as
the Seller is aware there is no fact or circumstance likely to give
rise
to any such proceedings, and the Pension Scheme has at all times
been
administered so as to comply with all legal
requirements.
|
|
17.1
|
So
far as its conduct of the Business is concerned, the Seller has fully
complied with all its legal obligations in relation to value added
tax,
national insurance contributions and PAYE, has made true and proper
returns, paid all sums due (including those taxes and duties payable
on
the importation of goods) and maintained and preserved all appropriate
and
necessary records. There have been no penalties, notices or warnings
in
respect of these matters.
|
|
17.2
|
Apart
from routine or minor inquiries concerning computations there is
no
dispute with HM Revenue and Customs or other fiscal body whatsoever
or
wherever situated concerning the Assets or the
Business.
|
|
17.3
|
All
documents that currently affect the Business in any way have been
duly
stamped and proper stamp duty land tax returns have been made as
required.
|
|
17.4
|
No
input tax is liable to adjustment in respect of any of the Assets
under
the provisions of Part XV of the Value Added Tax Regulations
1995.
|
|
17.5
|
The
Seller has disclosed to the Purchaser sufficient information concerning
industrial buildings allowances claimed under the provisions of the
Capital Allowances Act 2001 in respect of the Assets to enable the
Purchaser to continue to claim the
same.
|
|
17.6
|
There
is no capital transfer tax or inheritance tax that is a charge on
any of
the Assets or gives rise to a power to sell, mortgage or charge any
of the
Assets. There has been no transfer of value or deemed transfer of
value
which, whether or not in conjunction with the death of any person
whenever
occurring, is capable of giving rise to such a power to sell, mortgage
or
charge any of the Assets. In determining whether a charge on or power
to
sell, mortgage or charge any of the Assets exists at any time the
fact
that any tax is not yet payable or may be paid by instalments shall
be
disregarded and the tax shall be treated as becoming due and a charge
or
power to sell, mortgage or charge as arising on the date of the transfer
of value or other date or event on or in respect of which it becomes
payable or arises.
|
|
18.1
|
The
Seller has obtained all necessary licences and consents from any
person,
authority or body for the proper carrying on of the Business and
is not in
breach of any of their terms or
conditions.
|
|
18.2
|
Details
of all such licences and consents are set out in the Disclosure Letter,
and the Seller knows of no reason why they should not be capable
of being
transferred to or obtained by the Purchaser without the necessity
for any
special arrangement or material
expense.
|
|
19.1
|
The
information contained in this agreement, the Schedules to it and
the
Disclosure Letter, exclusion of Due Diligence Material and attachments
to
the Disclosure Letter, was when given and will at the date of Completion
remain true, complete and accurate in all respects and the Seller
will be
permitted to give written notification of any change by amending
the
Disclosure letter on or before Completion . The Seller is not aware
of any
fact or matter not in the public domain in relation to the Business
that
would render any such information untrue, incomplete, inaccurate
or
misleading.
|
|
21.1
|
There
have been no arrangements nor undertakings (whether legally enforceable
or
not) between the Seller and any person who is directly or indirectly
a
shareholder or the beneficial owner of any interest in the Seller,
any
member of the Seller's Group, or any company in which the Seller
is
interested relating to the management of the Business and the ownership
or
transfer of ownership or otherwise in any way relating to the Business
or
the Assets.
|
|
ASSET
DESCRIPTION
|
SUPPLIER
|
|||||
|
Office
furniture
|
Ralco
Projects
|
|||||
|
IT
furniture
|
Trident
Computers
|
|||||
|
Office
furniture
|
Ralco
Projects
|
|||||
|
Office
furniture
|
Ralco
Projects
|
|||||
|
Office
furniture
|
Ralco
Projects
|
|||||
|
Office
furniture
|
Ralco
Projects
|
|||||
|
Move
desks
|
Action
Office Furniture
|
|||||
|
Wave
Desks
|
Action
Office Furniture
|
|||||
|
3
drawer under desk pedestal
|
Action
Office Furniture
|
|||||
|
Operator
chairs
|
Action
Office Furniture
|
|||||
|
Crescent
desks
|
Action
Office Furniture
|
|||||
|
3
drawer desk high pedestals
|
Action
Office Furniture
|
|||||
|
Operator
chairs
|
Action
Office Furniture
|
|||||
|
Operator
chairs
|
Action
Office Furniture
|
|||||
|
Legs
for boardroom table
|
Action
Office Furniture
|
|||||
|
Phone
System
|
Sabre
Telecomms
|
|||||
|
Office
furniture
|
Margolis
|
|||||
|
Office
furniture
|
Action
Office Furniture
|
|||||
|
Office
furniture
|
Action
Office Furniture
|
|||||
|
Phone
System
|
Sabre
Telecomms
|
|||||
|
40.00
|
Desks
|
|||||
|
56.00
|
Chairs
|
|
56.00
|
Pedestals
|
|||||
|
1.00
|
Board
room table
|
|||||
|
1.00
|
Meeting
table
|
|||||
|
10.00
|
Filing
cabinets - low
|
|||||
|
9.00
|
Filing
cabinets - tall
|
|||||
|
3.00
|
4
drawer cabinets
|
|||||
|
3.00
|
Sofas
|
|||||
|
2.00
|
Beanbags
|
|||||
|
1.00
|
Fax
machine
|
|||||
|
1.00
|
Fax/copier/
printer
|
|||||
|
1.00
|
Photocopier
|
|||||
|
1.00
|
Phone
system
|
|
QTY
|
ASSET
DESCRIPTION
|
SUPPLIER
|
||
|
Sales
Logic System
|
DMC
Database Solutions
|
|||
|
1
|
Flat
Screen
|
tfr
from Stock
|
||
|
1
|
Amilo
Laptop
|
tfr
from Stock
|
||
|
22
|
Standard
Scaleo L PC's
|
tfr
from Stock
|
||
|
15
|
CRT
Monitors
|
tfr
from Stock
|
||
|
1
|
Standard
Scaleo L PC
|
tfr
from Stock
|
||
|
1
|
Advanced
Scaleo 600
|
tfr
from Stock
|
||
|
1
|
Amilo
Laptop
|
tfr
from Stock
|
||
|
Fujitsu
Hard Drive/SQL server licence
|
Trident
|
|||
|
1
|
Projector
|
Northamber
|
||
|
Discount
of Sales Logic system
|
DMC
Database Solutions
|
|||
|
Installation/configuration/Customisation
of sales logic
|
DMC
Database Solutions
|
|||
|
2
|
Standard
Scaleo L PC's
|
tfr
from Stock
|
||
|
Sales
Logic programme + license
|
DMC
Database Solutions
|
|||
|
2
|
Advanced
Scaleo 600
|
tfr
from Stock
|
||
|
2
|
Amilo
Laptop
|
tfr
from Stock
|
||
|
2
|
Advanced
Scaleo 600
|
tfr
from Stock
|
||
|
1
|
Flatscreen
Monitor
|
tfr
from Stock
|
||
|
2
|
Studio
MX (inc Flash Mx pro)
|
NW
cr card
|
||
|
1
|
Acer
PD320 M-Media Projector
|
Northamber
|
||
|
2
|
FJ
Primergy RX200 Xeon 2400 - Server
|
Trident
Computers
|
||
|
4
|
FJ
Hard Drive with disk cradle - Server
|
Trident
Computers
|
||
|
2
|
FJ
Primergy RX200 Server Bundle
|
Trident
Computers
|
||
|
10
|
Standard
Scaleo L PC's
|
tfr
from Stock
|
||
|
10
|
CRT
Monitors
|
tfr
from Stock
|
||
|
11
|
Advanced
Scaleo 600
|
tfr
from Stock
|
||
|
11
|
Flatscreen
Monitor
|
tfr
from Stock
|
||
|
10
|
Amilo
Laptop
|
tfr
from Stock
|
||
|
Exhibition
Stand
|
Service
Exhibitions
|
|||
|
Sales
Logix Web + Lan user
|
DMC
Database Solutions
|
|||
|
Sales
Logix Update programme customisation
|
DMC
Database Solutions
|
|||
|
Stornext
File System (Linux)
|
ADIC
|
|||
|
100
|
Microsoft
Office 2003 SBE
|
Trident
|
||
|
FastStor
2 LVD SCSI + accessories
|
Redstore
|
|||
|
25
|
Coretime
licences/users
|
SAGE
|
||
|
6
|
Advanced
MKII ( C )
|
tfr
from Stock
|
||
|
1
|
Standard
Scaleo L PC's
|
tfr
from Stock
|
||
|
4
|
Amilo
Laptop
|
tfr
from Stock
|
|
11
|
17"
TFT's
|
tfr
from Stock
|
||
|
FastStor
2 LVD FM6760
|
Redstor
|
|||
|
WebTrends
Get Current/Essential care FM6763
|
Trident
Comp
|
|||
|
2
|
Dell
Poweredge SATA 1U rack system FM6762
|
Trident
Comp
|
||
|
Atlassian
Software
|
NW
C Card May
|
|||
|
Coretime
on line training - James Copeland
|
Sage
|
|||
|
Macromedia
Studio MX2004+FlashPRO
|
CCS
Media Ltd
|
|||
|
Adobe
CS Studio UPG MAC
|
CCS
Media Ltd
|
|||
|
Apple
Powermac G5 dual 2GHz FM6907Internal intranet
|
CCS
Media Ltd
|
|||
|
20"
Apple Cinema Display FM6907Internal Intranet
|
CCS
Media Ltd
|
|||
|
Kingston
2Gb DDR PC3200
|
CCS
Media Ltd
|
|||
|
X
1
SSL License Groupware
|
NW
C Card June
|
|||
|
Service
Level Agrmnt 1Jul05-30Jun06
|
Ivy
Learning
|
|||
|
Desktop
Applications Licence 1Jul05-30Jun06
|
Ivy
Learning
|
|||
|
Dell
PE2850 Dual Xeon3Ghz FM7170 S/logix infrastrct
|
CCS
Media
|
|||
|
2
|
Cisco
Catalyst 2970+4SFP Enhanced Image FM7185
|
Valusys
|
||
|
Groove
Networks,Starter Kit for projects
|
NW
C Card SEPT
|
|||
|
1
|
IPStor
iSCSI storage appliance,1Tb SATA FM7199
|
Redstor
|
||
|
2
|
IPStor
iSCSI storage appliance,3Tb SATA FM7199
|
Redstor
|
||
|
2
|
FalconStor
Snapshot FM7199
|
Redstor
|
||
|
1
|
Redstor
Support for FalconStor FM7199
|
Redstor
|
||
|
Dell
PowerEdge SC1425 SATA Xeon3G 70143407/2
|
CCS
Media
|
|||
|
Windows
Server 2003 FM7515
|
Technology
8 Ltd
|
|||
|
MS
Sequal Server 2000 FM7515
|
Technology
8 Ltd
|
|||
|
1
|
Visio
2003 FM7515
|
Technology
8 Ltd
|
||
|
1
|
Dell
PowerEdge 1425 Server (Single Xeon 4Gb Ram)
|
Valusys
Ltd
|
||
|
2
|
Dell
PowerEdge 1425 Server (Dual Xeon 2Gb Ram)
|
Valusys
Ltd
|
||
|
Dell
PowerEdge SC1425 SATA Xeon3G 58702620
|
CCS
Media
|
|||
|
Dell
PowerEdge SC1425 SATA Xeon3G 58527213/4
|
CCS
Media
|
|||
|
Installation
re:FM7199 FalconStor
|
Redstor
|
|||
|
Installation
re:FM7199 FalconStor
|
Redstor
|
|||
|
2
|
Visio
2003 FM7515
|
Technology
8 Ltd
|
||
|
1
|
Dell
PE850 Server with 1GB 2x80Gb FM7827
|
Valusys
Ltd
|
||
|
3
|
Dell
PE1850 Servers FM7836
|
Valusys
Ltd
|
||
|
1
|
Dell
PE850 Server with 1GB 2x80Gb FM7780
|
Valusys
Ltd
|
||
|
2
|
Compaq
Bsns Notebooks - NX6110 MvDB+JHFM7767
|
Valusys
Ltd
|
||
|
2
|
Compaq
Bsns Notebooks - FM7799
|
Valusys
Ltd
|
||
|
1
|
Laptop
HP NX6110 + 1Gb DDR RAM PC2700 CB FM7788
|
Valusys
Ltd
|
||
|
2
|
3Com
Superstack 3 switch 3250
|
Valusys
Ltd
|
||
|
Intel
Pro Quad Port Server Adaptor and crimping tool
|
Valusys
Ltd
|
|||
|
1
|
Dell
850 SATA 1U Server P4 3Ghz
|
Valusys
Ltd
|
||
|
4
|
FJ
Scenic X P4 3.06 256mb 40gb DVD XPP
|
Valusys
Ltd
|
||
|
4
|
FJ
Scaleoview 17" TFT display
|
Valusys
Ltd
|
||
|
Transfer
of computers Jounal no.1372
|
|
1
|
GFI
network security scanner
|
Gregory
Micallef Associates
|
||
|
3
|
2
seat sofas + £76.12 VAT
|
Ivanikea
|
||
|
1
|
Computer
room cooling system
|
BGC
Tech Services
|
||
|
5
|
Inspiron
6400 computers
|
NatWest
Card
|
||
|
5
|
3
Brother Laser & 2 Canon inkjet printers + £90.19 VAT
|
NatWest
Card
|
||
|
1
|
Apple
MacBook Intel Core 2 Duo
|
Employee
expenses - AM
|
||
|
1
|
Dell
PE 1950 Xeon 5050 computer
|
NatWest
Card
|
||
|
1
|
Dell
PE 1950 Xeon 5050 computer
|
NatWest
Card
|
||
|
1
|
Dell
PE 1950 Xeon 5050 computer
|
NatWest
Card
|
||
|
1
|
Dell
PE 1950 Xeon 5050 computer
|
NatWest
Card
|
||
|
1.00
|
Laser
Fax Machine
|
Net
Stationers
|
||
|
Mouse/keyboard
kits
|
Dell
Computers
|
|||
|
1.00
|
Dell
Computer
|
Dell
Computers
|
||
|
Dell
Various
|
Dell
Computers
|
|||
|
1.00
|
Dell
Computer
|
Dell
Computers
|
||
|
1.00
|
Dell
Computer
|
Dell
Computers
|
||
|
1.00
|
24
Port gigabit switch
|
broadbandbuyer.co.uk
|
||
|
1.00
|
Apple
computer MBP 15/2.4/2 X 1GB
|
Apple
Computers
|
||
|
2.00
|
Ready
NAS = 1TB
|
dabs4work.com
|
|
Property
Address
|
Lease
Date
|
Parties
to Lease
|
|||||||||
|
The
east half (approx) of the second floor to Nile House, Nile Street,
Brighton, BN1 1HW
|
To
be entered into on the Completion Date
|
Baker
Tilly Services Limited and the Purchaser]
|
|
Customer
contracts File
|
|
|
1
|
Ashurst
|
|
1.1
|
Amendment
to helpdesk agreement
|
|
1.2
|
Amendment
to hosting agreement
|
|
1.3
|
Amendment
in relation to licence agreement
|
|
1.4
|
Helpdesk
support contract
|
|
1.5
|
Hosting
agreement
|
|
1.6
|
Induction
programme
|
|
1.7
|
Software
programmes
|
|
1.8
|
P989
– Unfair dismissal
|
|
2
|
The
Bank of England
|
|
2.1
|
Generic
Courseware licence agreement
|
|
3
|
BUPA
|
|
3.1
|
Aktivna
LMS – licence agreement
|
|
4
|
Capita
|
|
4.1
|
Contract
for purchase of Goods & Supply – Framework
Agreement
|
|
5
|
CPS
|
|
5.1
|
NCC
– Single Licensee Software Escrow Agreement
|
|
5.2
|
Framework
agreement
|
|
5.3
|
P907M-
CPS Rape project
|
|
5.4
|
P951
– Recruitment & Selection
|
|
5.5
|
P967
– Logo changes
|
|
5.6
|
P969
– SME Learning Programme
|
|
6
|
EBRD
|
|
6.1
|
Consultancy
contract Extension
|
|
6.2
|
Consultancy
contract
|
|
6.3
|
P687
e mail re revised invoice points
|
|
7
|
IMS
Health
|
|
7.1
|
Client
Service Portal
|
|
8
|
Network
Rail
|
|
8.1
|
Initial
Signaller Training
|
|
8.2
|
Competition
Law
|
|
8.3
|
P833
Confirmation of Purchase orders
|
|
9
|
Royal
Mail
|
|
9.1
|
Framework
agreement
|
|
10
|
Virgin
Atlantic
|
|
10.1
|
Hosting
agreement
|
|
10.2
|
Aviation
Medicine Agreement
|
|
10.3
|
Aviation
Medicine Confidentiality
|
|
10.4
|
OTP
confidentiality
|
|
10.5
|
Triple
A confidentiality
|
|
10.6
|
Crew
Training
|
|
11
|
Beazley
|
|
11.1
|
Framework
|
|
1.
|
The
Purchaser shall with effect from the Completion Date comply with
the
requirements of Section 258 of the Pensions Act 2004 in respect of
each of
the Transferring Employees who are immediately before the Completion
Date
members of the Pension Scheme.
|
|
2.
|
The
Purchaser hereby undertakes to pay to the Seller a sum equal to the
value
of all liabilities, damages, losses, costs and expenses incurred
by the
Seller or the trustees of the Pension Scheme in respect of any claim
arising after the Completion Date from or in relation to the Purchaser's
obligations under the Transfer Regulations, Sections 257 and 258
of the
Pensions Act 2004 and/or the Pension Protection Regulations, or failure
to
comply with those obligations.
|
|
1.
|
The
Seller and the Purchaser acknowledge and agree that the sale of the
Business by the Seller to the Purchaser is subject to the application
of
the Transfer Regulations and that
accordingly:
|
|
1.1
|
the
employment of any of the Transferring Employees shall not be terminated
for a reason arising from or connected in any way with this Agreement;
and
|
|
1.2
|
by
virtue of the Transfer Regulations, all rights, powers, duties and
liabilities of the Seller under or in connection with any contract
of
employment with the Transferring Employees still in force immediately
before the Completion Date shall be transferred to the Purchaser
with
effect from the Completion Date.
|
|
2.
|
All
salaries and other emoluments including holiday pay, tax and national
insurance contributions and contributions to retirement benefit schemes
relating to the Employees shall be borne by the Seller up to Completion
and by the Purchaser on Completion, and all necessary apportionments
shall
be made.
|
|
3.
|
The
Seller shall indemnify the Purchaser against each and every cost,
claim,
liability, expense or demand relating to or arising out of any act
or
omission by the Seller before the date of Completion or any other
event or
occurrence before the date of Completion and incurred by the Purchaser
pursuant to the Transfer Regulations in relation to any contract
of
employment or collective agreement concerning the Employees and former
employees of the Seller or the Business including without limitation
any
such matter relating to or arising out
of:
|
|
3.1
|
the
Seller’s rights, powers, duties and liabilities under or in connection
with any such contract of employment or collective agreement or under
statute;
|
|
3.2
|
anything
done or omitted before the Completion Date by or in relation to the
Seller
in respect of any contract of employment or collective agreement
or any
person employed in the Business which is deemed to have been done
or
omitted by or in relation to the Purchaser in accordance with the
Transfer
Regulations;
|
|
3.3
|
the
Seller's failure to pay to any of the Employees any sums due in respect
of
the period before Completion, and
|
|
3.4
|
any
claim by any trade union, staff association or staff body recognised
by
the Seller in respect of all or any of the Employees arising out
of the
Seller's failure to comply with its legal obligations to the trade
union,
staff association or body.
|
|
3.5
|
The
Seller agrees to terminate up to three employees in its IT department
at
the direction of the Purchaser prior to the Completion Date and to
indemnify the Purchaser in respect of any claims, costs, demands
or
liabilities that the Purchaser incurs by reason of or in connection
with
the dismissal of such persons in connection with the Transfer Regulations
or otherwise.
|
|
4.
|
The
Purchaser and Parent, jointly and severally, agree and undertake
with the
Seller (for its own benefit and for the benefit of each member of
the
Seller's Group) to indemnify the Seller,
and
each other member of the Seller's Group at all times from and against
all
Employment Liabilities arising out of or in any way connected with
the
employment or the termination of the employment by any person on
or after
the Completion Date of any of the Transferring Employees including
without
prejudice to the generality of the
foregoing:
|
|
4.1
|
any
breach on or after the Completion Date by any person of any obligation
under or in connection with their contracts of
employment;
|
|
4.2
|
any
breach on or after the Completion Date by any person of any other
obligation or any duty (whether statutory or otherwise) owed to any
of the
Transferring Employees or to any trade union(s) or employee
representatives in respect of the Transferring Employees;
and
|
|
4.3
|
any
claim by a Transferring Employee that the change of the identity
of his
employer arising from the transfer of his employment to the Purchaser
is a
significant change and to his detriment pursuant to Regulation 5(5)
of the
Transfer Regulations;
|
|
5.
|
If
it is found or alleged as a result of the sale of the Business by
the
Seller to the Purchaser in accordance with this Agreement that any
contract of employment with any Non-Transferring Employee has effect
at
any time on or after the Completion Date as if originally made between
the
Purchaser or any member of the Purchaser's Group and such person
as a
result of the operation of the Transfer Regulations, then (without
prejudice to any other rights or remedies which may be available
to the
Purchaser):
|
|
5.1
|
the
Purchaser shall, upon becoming aware of such finding or allegation,
give
the Seller 28 days' notice in writing of the finding or allegation
and,
where appropriate, of its intention to terminate any such contract.
Save
where the Seller expressly waives its right to notice, or to full
notice,
in accordance with this paragraph 5.1, the Seller shall be permitted
the
period of 28 days from the date on which notice is given during which
to
enter into negotiations with any such Non-Transferring Employee with
a
view to making an offer of alternative
employment;
|
|
5.2
|
where
the Seller expressly waives its right to notice in accordance with
paragraph 5.1 above, and in any event once the 28 day notice period
has
expired, the Purchaser may terminate such Non-Transferring Employee
contract forthwith where the Purchaser or any member of the Purchaser's
Group has no alternative employment to offer such Non-Transferring
Employee; and
|
|
5.3
|
except
where the Seller offers such a Non-Transferring Employee alternative
employment and that offer is accepted, the Seller hereby agrees with
the
Purchaser to indemnify the Purchaser against all Employment Liabilities
arising out of such termination, save where and to the extent that
such
Employment Liabilities result from any act or omission (including
any
continuing act or omission) on the part of the Purchaser and against
any
sums payable to or on behalf of any such Non-Transferring Employee,
and
any remuneration or benefits which the Purchaser is required to provide
to
such person after the Completion
Date.
|
| 6.1 |
"Employment
Law" means all and any laws, including without limitation, common
law,
statutes, directives, recommendations, regulations, notices, codes
of
practice, guidance notes, judgments, decrees or orders, whether of
the
European Community or the United Kingdom, relating to or connected
with
(i) the employment of employees including but not limited to their
health
and safety at work and (ii) the engagement, use and termination of
engagement of individuals other than employees who provide services
including but not limited to their health and safety at
work.
|
| 6.2 |
"Employment
Liabilities" means all Losses connected with or arising from any
Employment Law excluding those Losses which arise in connection with
or
related to or under the Pension
Scheme;
|
| 6.3 |
"Losses"
includes, in respect of any matter, event or circumstance, all demands,
claims, actions, proceedings, damages, payments, fines, penalties,
losses,
costs (including legal costs), expenses (including taxation),
disbursements or other liabilities in any case of any nature
whatsoever;
|
| 6.4 |
"Non-Transferring
Employees" means any employee of the Seller or any other member of
the
Seller's Group not being a Transferring Employee;
and
|
| 6.5 |
"Transfer
Regulations" means the Transfer of Undertakings (Protection of Employment)
Regulations 2006 as amended or
replaced.
|
|
(i)
|
amounts
payable by the Seller to professional advisers relating to the sale
of the
Business to the Purchaser.
|
|
£
|
|
|
Accounts
Receivable
|
£___
|
|
IT
Equipment
|
£___
|
|
Fixtures
& Fittings / Office Equipment
|
£___
|
|
Restrictive
Covenant
|
£___
|
|
Intellectual
Property
|
£___
|
|
Purchased
Contracts
|
£___
|
|
Sales
Documentation
|
£___
|
|
Technical
Information
|
£___
|
|
Goodwill
|
£___
|
|
TOTAL
|
£___
|
|
1.4
|
references
to a 'claim' are references to a claim by the Purchaser for a breach
of
the Warranties,
|
|
3.1
|
The
Seller shall not be liable for a claim if the liability of the Seller
for
that claim when added to the total liability of the Seller under
all
previous claims does not exceed in aggregate the Minimum
Liability.
|
|
3.2
|
If
any claim which exceeds the Minimum Liability alone or when added
to any
previous claims (which in each instance exceeds the Minimum Liability),
the Seller shall be liable for the whole amount of any such claims
but
only if the total of all such claims exceeds the Threshold
Liability.
|
|
5.1
|
No
claim (or increase in the value of claim) shall be brought by the
Purchaser against the Seller unless notice in writing has been given
to
the Seller as soon as reasonably practicable, and in any event within
28
days, after the Purchaser becomes aware of the grounds for a claim
(or
increase in the value of the claim, as the case may be) and on or
before
the Claim Date specifying the nature of the claim in reasonably sufficient
detail and so far as practicable the amount claimed and proceedings
in
respect of the claim shall have been commenced by being both properly
issued and validly served within 1 year of the giving of such notice
and
any claim not so brought shall be wholly barred and unenforceable
and
shall absolutely determine and
cease.
|
|
5.2
|
The
Seller is not liable for a claim unless the Purchaser has given the
Seller
notice in writing of the claim within the period of seven years beginning
with the Completion Date if the claim relates to a breach of the
“Warranties as to taxation” and in all other cases within a period ending
on or before 30 June 2010.
|
|
6.1.1
|
if
and to the extent that the breach on which the claim is based occurs
as a
result of any legislation not in force at the date of this agreement
that
takes effect retrospectively or any increase in the rates of taxation
in
force at that date, or as a consequence of a change in the interpretation
of the law in any jurisdiction after the date of this
agreement,
|
|
6.1.2
|
if
and to the extent that the breach on which the claim is based would
not
have arisen but for any voluntary act, omission, transaction or
arrangement by or with the Purchaser or any person connected with
the
Purchaser after Completion otherwise than in the ordinary course
of
conducting the Business,
|
|
6.1.3
|
to
the extent that the claim arises only as a result of any changes
after
Completion in the accounting bases, policies or methods used by the
Purchaser to value any of its assets,
or
|
|
6.1.4
|
to
the extent that the claim relates to any loss for which the Purchaser
is
indemnified by insurance
|
|
6.1.5
|
in
respect of a claim, if the Purchaser, after due warning and adequate
indemnity is provided by the Seller, fails to act, or fails to procure
any
member of the Purchaser's Group to act, in accordance with the reasonable
requests of the Seller in avoiding, disputing, resisting, appealing,
compromising or contesting a claim, liability or
dispute.
|
|
6.2
|
No
claim shall be made by the Purchaser if the fact, omission, circumstance
or occurrence giving rise to the claim has been fairly disclosed
to the
Purchaser in the Disclosure Letter or is otherwise known to any officer
or
director of the Purchaser at the date
hereof.
|
|
|
When
the Purchaser becomes aware of any grounds that might give rise to
a
claim, notwithstanding having given notice to the Seller under the
terms
of paragraph 5.1, the Purchaser
shall:
|
|
7.1
|
not
make any admission of liability or agreement or compromise with any
party
without prior consultation with and the agreement of the Seller which
shall not be unreasonably withheld or
delayed,
|
|
7.2
|
if
the claim results from or in connection with a dispute with a third
party,
take such action to avoid, dispute, resist, appeal, compromise or
contest
the dispute as the Seller may reasonably request, at the Seller's
expense,
and
|
|
7.3
|
make
available to the Seller all information reasonably required and available
to enable the Seller to avoid, dispute, resist, appeal, compromise
or
contest the claim and any liability connected with the
claim,
|
|
|
provided
that the Purchaser shall not be obliged to take any action which
on a
reasonable view is likely materially to prejudice the Business or
the
Purchaser.
|
|
|
If
the Purchaser receives any payment or benefit from any policy of
insurance
or any third party other than the Seller as a result of the circumstances
giving rise to a claim, and the Seller has made any payment to the
Purchaser in respect of that claim, the Purchaser shall as soon as
practicable after receipt pay to the Seller an amount which is the
lesser
of the amount of the payment or benefit received from the insurer
or other
third party and the payment received from the Seller, having deducted
all
costs, charges and expenses reasonably incurred by the Purchaser
in
obtaining the payment or benefit.
|
|
9.1
|
Nothing
in this Schedule shall in any way diminish the Purchaser's common
law
obligation to mitigate its loss.
|
|
9.2
|
If
any potential claim arises by reason of a liability that is contingent
only, then the Seller shall not be under any obligation to make any
payment for that claim until such time as the contingent liability
becomes
actual.
|
|
9.3
|
Nothing
contained in this Schedule or any other terms of this agreement shall
affect any claim or other action by the Purchaser in the case of
fraud or
other dishonesty or any omission or wilful or fraudulent misstatement
the
Seller may make or commit.
|
|
9.4
|
The
liability of the Seller shall cease and any subsisting claim shall
be
withdrawn upon the Business ceasing for any reason to be directly
or
indirectly wholly owned by the Purchaser or the Purchaser’s Group.
|
|
9.5
|
In
calculating the liability of the Seller in respect of any claim there
shall be taken into account the value of any benefit accruing to
any
member of the Purchaser's Group in consequence of the matter or
circumstances giving rise to such claim including, without prejudice
to
the generality of the foregoing, any amount of any tax relief obtained
or
obtainable by any member of the Purchaser's Group and any amount
by which
any Taxation for which any member of the Purchaser's Group is or
may be
liable to be assessed or made accountable is reduced or extinguished
arising in consequence of such matter or
circumstances.
|
|
9.6
|
The
Purchaser shall not be entitled to recover damages or obtain payment,
reimbursement, restitution or indemnity more than once for the same
loss,
damage, deficit, deficiency or breach.
|
|
9.7
|
If
the Seller pays any sum to the Purchaser pursuant to a claim, the
Consideration shall be deemed to be reduced by the amount of such
payment
and where such claim relates to a specific Asset, the consideration
allocated to such Asset.
|
| This ‘6-K’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed on / For Period End: | 10/1/08 | None on these Dates | ||
| List all Filings | ||||
