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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
February 27, 2004
(Date of earliest event reported)
GRIFFIN LAND & NURSERIES, INC.
(Exact name of registrant as specified in charter)
DELAWARE 0-29288 06-0868496
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
ONE ROCKEFELLER PLAZA, NEW YORK, NEW YORK 10020
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(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (212) 218-7910
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We are filing the Share Acquisition Agreement and the Tax Deed Agreement
executed by Griffin with respect to its sale of all of its B Ordinary Shares of
Centaur Communications Limited as previously reported.
Item 7. Financial Statements and Exhibits
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(c) Exhibits
Exhibit 2.3 Share Acquisition Agreement relating to Centaur Communications
Limited dated 27 February 2004, among The Sellers (as defined therein) and
Centaur Holdings PLC
Exhibit 2.4 Tax Deed Agreement relating to Centaur Communications Limited
dated 27 February 2004, among The Sellers (as defined therein) and
Centaur Holdings PLC
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GRIFFIN LAND & NURSERIES, INC.
/s/ Anthony J. Galici
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Anthony J. Galici
Vice President, Chief Financial Officer and
Secretary
Dated: March 9, 2004
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Exhibit 2.3 CONFORMED COPY
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Dated 27 February 2004
(1) THE SELLERS (AS DEFINED HEREIN)
(2) CENTAUR HOLDINGS PLC
SHARE ACQUISITION AGREEMENT
RELATING TO
CENTAUR COMMUNICATIONS LIMITED
CONTENTS
CLAUSE
1. Definitions and Interpretation
2. Conditions and Sale of Shares
3. Consideration
4. Completion
- Obligations upon Execution
- Position pending Completion
- Termination
- Escrow Completion requirements
- Completion requirements
5. Warranties
6. Protection of goodwill
7. Confidentiality
8. Announcements
9. Costs
10. Capacity and Shares
11. Applicable law and jurisdiction
12. General
13. Notices
SCHEDULE
1 The Sellers
2 The Company and the Subsidiaries
3 Escrow Completion obligations
4 Cash Balances Statement
5 Warranties
6 Limitations on Claims
7 Properties
8 Pensions
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DOCUMENTS IN THE APPROVED TERMS
1 Tax Deed
2 Powers of attorney
3 Co-operation Agreement
4 Foreign legal opinion
5 Board resolutions
6 Loan Note Instrument
7 Escrow Instruction Letter
8 Irrevocable Undertakings re D Offer
9 D Option Letter
10 Undertaking re funds
ANNEXURES
1 Accounts
2 Management Accounts
3 Placing Agreement
4 Admission Document
5 D Offer Document (including form of acceptance)
THIS AGREEMENT is made on 27 February 2004
BETWEEN:
(1) THE SEVERAL PERSONS whose names and addresses are set out in Schedule 1
(together the "SELLERS"); and
(2) CENTAUR HOLDINGS PLC, incorporated in England and Wales with registered
number 4948078 and whose registered office is at St. Giles House,
50 Poland Street, London W1F 7AX (the "BUYER").
INTRODUCTION
The Sellers have agreed to sell and the Buyer has agreed to buy the Shares on
the terms and conditions of this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 The following words and expressions where used in this Agreement have
the meanings given to them below:
ACCOUNTS the audited consolidated financial statements of
the Target Group and the financial statements of
each Target Group Company, prepared in accordance
with the Act for the accounting reference period
ended on the Accounts Date, true copies of which
comprise Annexure 1.
ACCOUNTS DATE 30 June 2003.
ACT the Companies Act 1985.
ADMISSION shall have the same meaning as in the
Placing Agreement.
ADMISSION CONDITION shall mean the Condition in clause 2.1.2.
ADMISSION DOCUMENT the AIM admission document to be issued by the
Buyer in the form (or substantially in the form)
of the document comprising Annexure 4.
AFFILIATE in relation to any person, any parent undertaking
of that person, and any subsidiary undertaking of
that person or of any such parent undertaking and
the terms "PARENT UNDERTAKING" and "SUBSIDIARY
UNDERTAKING" shall have the meanings given in the
Act.
AIM the Alternative Investment Market of the London
Stock Exchange.
AIM RULES the rules of the London Stock Exchange governing
the admission to and operation of AIM.
BUSINESS each of the businesses carried on by the Company
and any other Target Group Company.
BUSINESS DAY any day other than a Saturday, Sunday, English
public or bank holiday or public or bank holiday
in the United States of America.
BUSINESS IPR all Intellectual Property Rights used for any
Purpose in connection with the Business including,
without limitation, the Licensed IPR and the
Business Names.
BUSINESS NAME(S) the names of the Products marketed, published,
organised and/or supplied by the Company or any
other Target Group Company.
BUYER GROUP the Buyer and any subsidiary undertaking of the
Buyer or such parent undertaking (including, with
effect from Completion, every other Target Group
Company) from time to time and references to
"BUYER GROUP COMPANY" and to "ANY MEMBER OF THE
BUYER GROUP" shall be construed accordingly.
BUYER'S SOLICITORS Travers Smith Braithwaite of 10 Snow Hill,
London EC1A 2AL.
CASH BALANCES an amount equal to the aggregate of (a) all cash
deposits with any bank by any Target Group Company
(whether on current account or otherwise but for
and on behalf of a Target Group Company) and (b)
the amount of all uncleared cheques received by
any Target Group Company but after deducting (i)
the amount of all uncleared cheques drawn by any
Target Group Company and (ii) any cash paid on or
as a result of the exercise of any D Options in
each case as at close of business on 1 March 2004;
CASH BALANCES STATEMENT the statement of Completion Cash Balances prepared
in accordance with clause 3 and Schedule 4.
CENTAUR SHARE SCHEMES the Centaur Communications Limited 1984 Executive
Share Option Scheme and the Centaur Communications
Limited Unapproved Share Option Scheme.
CERTIFICATES OF TITLE the certificates of title dated 27 February 2004
relating to:
(i) St Giles House, 49 and 50 and part of
51 Poland Street, London W1; and
(ii) part ground and basement, 1st, 2nd, 3rd and
4th floor 12/26
(even) Lexington Street, London W1; and
(iii) 3rd, 4th and 5th floor, 134/140 (even)
Oxford Street and 77/84 Wells Street,
London
prepared by the Seller's Solicitors in connection
with this Agreement and addressed to the Buyer.
COMPANY Centaur Communications Limited, details of which
are set out in Part I of Schedule 2.
COMPLETION completion of the sale and purchase of the Shares
under this Agreement which shall be deemed to
occur in accordance with the provisions of
clause 4.14.
COMPLETION CASH BALANCES the amount of Cash Balances of the Target Group
as at close of business on 1 March 2004 (less
any outstanding Indebtedness of the Target Group
as at close of business on 1 March 2004) and
agreed, deemed to be agreed or determined (as
the case may be) pursuant to clause 3 applying
the provisions of and making any adjustments
required by Schedule 4.
COMPLETION DATE the date on which Completion occurs.
CONDITIONS the conditions referred to in clause 2.1.
CONFIDENTIAL INFORMATION all information (whether oral or recorded in any
medium) relating to the business, financial or
other affairs (including future plans) of the
Company or any other Target Group Company, which
is treated by the Company or that Target Group
Company (as the case may be) as confidential, or
is marked or is by its nature confidential,
together with the contents of this Agreement
(including all Schedules and Annexures).
CONSIDERATION the sum of 8.36 pounds per share to be satisfied
by the aggregate of:-
(a) the Initial Cash Consideration;
(b) the Consideration Loan Notes;
(c) the Consideration Shares; and
(d) the release of the amount (if any) of the
Retention.
CONSIDERATION LOAN NOTES the loan notes to be constituted under the loan
note instrument in the approved terms, to be
executed by the Buyer on Completion, and to be
issued to the Sellers in the amounts set out
opposite their respective
names in column 6 of Schedule 1.
CONSIDERATION SHARES the 13,382,629 ordinary shares of 10 pence each
In the capital of the Buyer to be issued to the
Sellers named in Schedule 1 in the numbers set
out opposite their respective names in column 5
of Schedule 1 credited as fully paid.
CONTRACTS all contracts, agreements, licences and other
legally binding arrangements which have been
entered into or undertaken by or on behalf of
the Company or any other Target Group Company
on or prior to Completion.
CO-OPERATION AGREEMENT the agreement between the Buyer, the Company and
the directors of the Company in the approved
terms.
COPYRIGHT copyright, which includes all rights in
computer software and in databases and all
rights or forms of protection which have
equivalent or similar effect to the foregoing
and which subsist anywhere in the world.
CUSTOMER any customer of the Company or any other
Target Group Company including (without
limitation) purchasers of advertising space
(whether display, recruitment or classified)
in relation to any of the Products and
exhibitors or sponsors (whether paying or
non-paying) at or in respect of
any of the Products.
DISCLOSURE LETTER the letter dated the same date as this Agreement
from the Warrantors to the Buyer containing
disclosures against the Warranties.
D OFFER the offer to be made by or on behalf of the
Buyer to acquire the entire issued D Shares and
those D Shares to be issued following the
exercise of D Options, as contained in the
D Offer Document.
D OFFER DOCUMENT the document (including the accompanying
form of acceptance) incorporating the D Offer
and a recommendation from the directors of
the Company to holders of D Shares to accept
the D Offer, a true copy of
which comprises Annexure 5.
D OPTIONS the options held by certain individuals over
D Shares under the Centaur Share Schemes.
D OPTION LETTER the letter (including the accompanying form
of election) to the holders of D Options inviting
them to exercise their options to subscribe for
D Shares in the Company in the approved terms.
D SHARES the D ordinary shares of 10 pence each in the
capital of the Company.
ESCROW INSTRUCTION LETTER the letter in the approved terms to be issued
to the Buyer's Solicitors and the Sellers'
Solicitors in relation to the escrow arrangements
set out in clauses 4.10 to 4.13.
GRIFFIN LAND Griffin Land & Nurseries Inc., details of which
are contained in Schedule 1.
HARDWARE the computer and data processing systems used by
the Company or any other Target Group Company
excluding the Software, but including all plant
and equipment which may include embedded software
or similar processing systems.
ICTA 1988 the Income and Corporation Taxes Act 1988.
INDEBTEDNESS the indebtedness (if any) owed by any Target
Group Company as at close of business on 1 March
2004 to any person whatsoever for or in
respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any
acceptance credit facility;
(c) any amount raised pursuant to any
note purchase facility or the issue of
bonds, notes, debentures, loan stock or
any similar instrument;
(d) any amount raised under any other
transactions (including any
forward sale or purchase agreement)
having the commercial effect
of a borrowing;
(e) any amount owed, or becoming payable
by the Company to Macfarlanes in
connection with any matter contemplated
by this Agreement, the D Offer, Admission
or the D Option Letter;
(f) the amount of employers national
insurance contributions payable by the
Company in respect of the exercise of
D Options calculated on the basis set out
in Part II of Schedule 4; and
(g) (without double counting) the amount
of any liability in respect of any
guarantee or indemnity for any of the
items referred to in paragraphs (a) to
(d) above
But excluding for these purposes:
(i) any indebtedness owed by any Target
Group Company to any
other Target Group Company;
(ii) amounts owed to Customers, suppliers or
any other third party by any Target
Group Company in the ordinary course of
Business including prepayments and
amortised subscription income other than
any amount having the commercial effect
of a borrowing.
INITIAL CASH CONSIDERATION the sum of 96,045,831.08 pounds (ninety six
million, fourty five thousand, eight hundred
and thirty one pounds and eight pence) to be
paid by the Buyer to the Sellers on Completion
in the amounts set out opposite their
respective names in column 3 of Schedule 1.
INTELLECTUAL PROPERTY RIGHTS patents, trade marks, trade names, service
marks, domain names, design rights, Copyright,
Know-How and other intellectual property
rights, in each case whether registered or
unregistered and including applications for
the grant of any such rights and all rights
or forms of protection having equivalent or
similar effect anywhere in the world.
INTERIM ACCOUNTS the unaudited consolidated interim accounts
of the Target Group for the six month period
ended on the Interim Accounts Date.
INTERIM ACCOUNTS DATE 31 December 2003.
IPR AGREEMENTS the agreements or legally binding arrangements
pursuant to which the Company or any other
Target Group Company grants rights to use the
Business IPR or pursuant to which the Company
or any other Target Group Company is granted
rights to use Licensed IPR.
IT SYSTEMS the Hardware and the Software.
KEY SELLERS the Warrantors.
KNOW-HOW inventions, discoveries, improvements,
processes, formulae, techniques,
specifications, technical information,
methods, tests, reports, component lists,
manuals, instructions, drawings and
information relating to customers and
suppliers (whether confidential or not and
in whatever form held), in each case owned by
the Company or any other Target Group Company.
LICENSED IPR Intellectual Property Rights owned by third
parties which the Company or any other
Target Group Company is permitted to use.
LONDON STOCK EXCHANGE London Stock Exchange plc.
LONG STOP DATE 1 April 2004 (or such later date as the
parties may agree in writing or as may be
determined in
accordance with clause 4.6, 4.12.1 or 4.13.1).
MANAGEMENT ACCOUNTS the unaudited consolidated management accounts
of the Target Group and the unaudited
management accounts of each Target Group
Company for the one month period to 31
January 2004, a true copy of which
comprises Annexure 2.
MONTH a calendar month.
NUMIS Numis Securities Limited.
OVERSEAS SELLERS Griffin Land, VS & A Communications and
the Trust Company.
PENSIONS SCHEDULE the pensions schedule set out in
Schedule 8.
PLACING the placing of ordinary shares in the Buyer
in accordance with the terms of the
Placing Agreement and as described in the
Admission Document.
PLACING AGREEMENT the placing agreement dated the same date
as this Agreement and made between, inter
alia,
(1) the Buyer and (2) Numis Securities
Limited,
a true copy of which comprises Annexure 3.
POS REGULATIONS the Public Offers of Securities
Regulations 1995.
PRODUCTS any product (including any publication,
online portal, conference, exhibition, award
ceremony or associated service) which is (or
has in the past 12 months been) marketed,
published, organised and/or supplied by
the Company or any other Target Group
Company or any product in the course of
development by or on behalf of the Company
or any other Target Group Company.
PROPERTIES the properties, details of which are set
out in Schedule 7.
RETENTION the sum of 1,000,000 (one million pounds
sterling) to be paid by the Buyer into
the Retention Account on Completion.
RETENTION ACCOUNT a designated interest-bearing deposit
account with NatWest Bank in the joint
names of the Sellers' Solicitors and the
Buyer's Solicitors.
RETENTION RELEASE DATE the second Business Day after the date on
which the Completion Cash Balances are
agreed under clause 3.6.1 or deemed to be
agreed under clause 3.7 or determined
under clause 3.8 (as the case may be).
SECURITY INTEREST any mortgage, charge (whether fixed or
floating), lien, option, pledge, assignment,
trust arrangement, right of pre-emption,
third party right or interest or other
security interest or encumbrance of any kind
and any agreement, whether conditional
or otherwise, to create any of the foregoing.
SELLERS' SOLICITORS Macfarlanes of 10 Norwich Street,
London EC4A 1BD.
SHARES the 2,272,490 A ordinary shares of 10p each,
the 5,428,194 B ordinary shares of 10p each
and the 5,457,169 C ordinary shares of 10p
each in the capital of the Company comprising
all of the A ordinary shares, B ordinary
shares and C ordinary shares of 10 pence
each in the capital of the Company in
issue at Completion.
SOFTWARE all computer software used in the Business.
SUBSIDIARIES the subsidiary undertakings of the Company,
details of which are set out in
Part II of Schedule 2.
TARGET GROUP the Company and the Subsidiaries and
References to "TARGET GROUP COMPANY"
and to "ANY MEMBER OF THE TARGET
GROUP" shall be
construed accordingly.
TAXATION shall have the meaning attributed to
"Taxation" in the Tax Deed and the
expression "FOR TAXATION PURPOSES" shall
also have the meaning
attributed to it in the Tax Deed.
TAXATION AUTHORITY: shall have the meaning attributed to
"Taxation Authority" in the Tax Deed;
TAX DEED the deed in the approved terms to be
entered into at Completion.
TCGA 1992 Taxation of Chargeable Gains Act 1992.
TRANSFERRED EMPLOYEE means any employee of the Target Group
whose employment was transferred under
the Transfer of Undertakings (Protection of
Employment) Regulations 1981 by virtue of
the Sale of Business Agreement
dated 31 March 1999 between United News &
Media Group Limited, Chiron
Communications Limited and Centaur
Communications Limited.
TRUST COMPANY ZRH Nominees (0022) Limited.
VS & A COMMUNICATIONS VS & A Communications Partners II L.P.
WARRANTIES the warranties set out in Schedule 5.
WARRANTORS Graham Sherren, Griffin Land and VS & A
Communications.
1.2 Unless the context requires otherwise, words and expressions defined in
or having a meaning provided by the Act at the date of this Agreement, shall
have the same meaning in this Agreement. The term "CONNECTED WITH" shall have
the meaning attributed to it at the date of this Agreement by section 839 ICTA
1988.
1.3 Unless the context requires otherwise, references in this Agreement to:
1.3.1 any of the masculine, feminine and neuter genders shall include other
genders;
1.3.2 the singular shall include the plural and vice versa;
1.3.3 a "PERSON" shall include a reference to any natural person, body
corporate, unincorporated association, partnership and trust;
1.3.4 a company shall include a reference to any body corporate;
1.3.5 "EMPLOYEES" shall be deemed to include workers and consultants, and
references to "CONTRACTS OF EMPLOYMENT" and to "COMMENCEMENT OR CESSATION OF
EMPLOYMENT" shall be deemed to include contracts for consultancy and
commencement or cessation of consultancy;
1.3.6 any statute or statutory provision shall be deemed to include any
instrument, order, regulation or direction made or issued under it and shall be
construed so as to include a reference to the same as it may have been, or may
from time to time be, amended, modified, consolidated or re-enacted except to
the extent that any amendment or modification made after the date of this
Agreement would increase any liability or impose any additional obligation under
this Agreement;
1.3.7 any English legal term for any action, remedy, method of judicial
proceeding, legal document, legal status, court, official or any legal concept
or thing shall, in respect of any jurisdiction other than England, be deemed to
include what most nearly approximates in that jurisdiction to the English legal
term;
1.3.8 any time or date shall be construed as a reference to the time or date
prevailing in England.
1.4 The headings in this Agreement are for convenience only and shall not
affect its meaning. References to a "CLAUSE", "SCHEDULE" or "PARAGRAPH" are
(unless otherwise stated) to a clause of and Schedule to this Agreement and to a
paragraph of the relevant Schedule. The Schedules form part of this Agreement
and shall have the same force and effect as if expressly set out in the body of
this Agreement.
1.5 A document expressed to be "IN THE APPROVED TERMS" means a document, the
terms of which have been approved by the Buyer's Solicitors and Sellers'
Solicitors and a copy of which has been identified as such and initialled by or
on behalf of each such party.
1.6 A document expressed to be an "ANNEXURE" means a document a copy of
which has been identified as such and initialled by or on behalf of each party.
1.7 In construing this Agreement, general words introduced by the word
"OTHER" 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
and general words shall not be given a restrictive meaning by reason of the fact
that they are followed by particular examples intended to be embraced by the
general words.
2. CONDITIONS AND SALE OF SHARES
CONDITIONS
2.1 Save for the provisions contained in Clauses 1 (definition and
interpretation), 2 (conditions), 4 (position pending completion), 7
(confidentiality), 8 (announcements), 11 (applicable law and jurisdiction), 12
(general) and 13 (notices) this Agreement (including, for the avoidance of
doubt, any obligation of the Sellers to sell (or procure to be sold) the Shares
and any obligation of the Buyer to buy the Shares) shall be conditional in all
respects upon:
2.1.1 the Placing Agreement having been duly entered into, remaining in
force and not having been terminated prior to Admission and becoming or being
declared unconditional in all respects (save in respect of Admission or any
condition relating to the completion of this Agreement) in accordance with its
terms;
2.1.2 Admission occurring;
2.1.3 the D Offer becoming or being declared by the Buyer unconditional as
to acceptances in accordance with its terms.
2.2 The Buyer may in its absolute discretion (by notice in writing to the
Key Sellers) waive the Condition in clause 2.1.3, in whole or in part, at any
time by declaring the D Offer unconditional as to acceptances.
2.3 Without prejudice to the accrued rights of any Party, if any of the
Conditions set out in clause 2.1 above shall not have been satisfied by the Long
Stop Date, this Agreement (except for the provisions of this Clause 2.2 and of
Clauses 1, 7, 8, 11, 12 and 13) shall be null and void and of no further effect
and the parties shall be released and discharged from their respective
obligations under this Agreement.
SALE OF SHARES
2.4 Each of the Sellers shall sell (or procure to be sold) the Shares set
opposite his name in column 2 of Schedule 1 and the Buyer shall buy such Shares
on the terms of this Agreement.
2.5 Each of the Sellers shall procure that the Buyer acquires good title to
the Shares set opposite his name in column 2 of Schedule 1, free from all
Security Interests.
2.6 The Buyer shall buy the Shares with effect from and including the
Completion Date to the intent that as from that date all rights and advantages
accruing to the Shares, including any dividends or distributions declared, made
or paid on the Shares on or after that date, shall belong to the Buyer.
2.7 The Buyer shall not be obliged to complete the purchase of any of the
Shares unless the sale of all the Shares is completed simultaneously.
2.8 Save in respect of the rights conferred on the holder of the C ordinary
shares in the Company pursuant to article 8.3 of the Company's articles of
association, or in respect of any rights conferred on each Seller which he is,
or may be required to exercise in order to comply with his obligations pursuant
to, or as contemplated by, this Agreement, each Seller waives (or agrees to
procure the waiver of) any rights or restrictions conferred on him or on any
other person which may exist in relation to the transfer of the Shares or the D
Shares under the articles of association of the Company or otherwise in
connection with the matters contemplated by this Agreement and the D Offer.
3. CONSIDERATION
3.1 The aggregate consideration for the sale of the Shares shall be
109,999,651.08 pounds less any adjustment pursuant to clause 3.3, such amount to
be satisfied by the payment of the Initial Cash Consideration, the issue of
the Consideration Shares and the Consideration Loan Notes in accordance with
clause 3.2 and the release of the amount (if any) of the Retention to the
Sellers in accordance with clauses 3.3 and 3.4. The Consideration and the
Retention shall be apportioned between the Sellers as shown in
Schedule 1.
3.2 At Completion, the Buyer shall:
3.2.1 pay the Initial Cash Consideration to the Sellers' Solicitors by
telegraphic transfer to the Royal Bank of Scotland of 62-63 Threadneedle Street,
London EC2R 8LA, sort code 15-10-00, account number 15388776, valid receipt of
which shall discharge the Buyer from its obligation to pay the Initial Cash
Consideration to the Sellers;
3.2.2 allot and issue the number of Consideration Shares set opposite each
Seller's name in column 5 of Schedule 1 to such Sellers;
3.2.3 issue the nominal value of Consideration Loan Notes set opposite each
Seller's name in column 6 of Schedule 1 to such Sellers;
3.2.4 pay the Retention into the Retention Account by telegraphic transfer.
3.3 If the Cash Balances Statement as agreed or determined in accordance
with this clause 3 shows that the Target Group has Completion Cash Balances of
less than 3,881,000 pounds (the amount by which the Completion Cash Balances
is less than 3,881,000 pounds being referred to as the "SHORTFALL") then
on the Retention Release Date:
3.3.1 subject to clause 3.3.3 if the Shortfall is less than the Retention,
the Buyer and the Sellers, acting through the Key Sellers, shall jointly
instruct the Buyer's Solicitors and the Sellers' Solicitors to release an amount
equal to the Shortfall to the Buyer's Solicitors, on behalf of the Buyer and to
release the balance of funds in the Retention to the Sellers' Solicitors who
shall distribute such amount to the Sellers pro rata to their holding of the
Shares as at Completion;
3.3.2 if the Shortfall is equal to or exceeds the Retention, then the Buyer
and the Sellers, acting through the Key Sellers, shall jointly instruct the
Buyer's Solicitors and the Sellers' Solicitors to release the Retention to the
Buyer's Solicitors and the Sellers shall pay an amount to the Buyer on demand to
the Key Sellers in respect of the difference between the Shortfall and the
amount of the Retention, such payment to be borne by the Key Sellers in the
proportions specified in column 6 of the table in paragraph 3 of Schedule 6 up
to a maximum of 3,881,000 pounds;
3.3.3 if the Shortfall is equal to or is less than 50,000 pounds the
provisions of clause 3.4 shall apply.
3.4 If the Cash Balances Statement as agreed or determined in accordance
with clause 3 shows that the Target Group has Completion Cash Balances equal to
or greater than 3,881,000 pounds then, on the Retention Release Date the Buyer
and the Sellers, acting through the Key Sellers, shall jointly instruct
the Buyer's Solicitors and the Sellers' Solicitors to release the Retention to
the Sellers' Solicitors who shall distribute such amount to the Sellers pro
rata to their holding of the Shares as at Completion.
3.5 As soon as practicable following Completion but in any event within 20
Business Days after the Completion Date, the Key Sellers shall procure the
preparation of a draft Cash Balances Statement on the basis of the requirements,
accounting policies and accounting methods set out in Parts I and II of Schedule
4.
3.6 When the draft Cash Balances Statement has been prepared, the Key
Sellers shall forthwith deliver a copy of it to the Buyer. The Buyer and its
accountants shall then have a period of 20 Business Days after the date on which
the Key Sellers deliver the draft Cash Balances Statement to the Buyer (the
"REVIEW PERIOD") within which to review the draft Cash Balances Statement. The
Buyer shall, before the expiry of the Review Period, either:
3.6.1 confirm in writing to the Key Sellers that it agrees that the draft
Cash Balances Statement has been duly prepared and that the value of the
Completion Cash Balances is as certified in the draft Cash Balances Statement
and that the draft Cash Balances Statement shall constitute the Cash Balances
Statement for the purposes of the Agreement; or
3.6.2 give notice in writing to the Key Sellers stating that it does not
agree with the draft Cash Balances Statement and setting out details of the
Buyer's proposed adjustments to the draft Cash Balances Statement and to the
value of the Completion Cash Balances (if any) provided that if the aggregate
value of such adjustments is 50,000 pounds or less, then the Buyer shall be
deemed to have agreed the draft Cash Balances Statement as originally drafted,
including the certificate of the value of the Completion Cash Balances.
3.7 If the Buyer fails so to confirm before expiry of the Review Period or
fails to give a notice in accordance with clause 3.6 the draft Cash Balances
Statement and the value of Completion Cash Balances certified in that statement
shall be deemed to have been finally accepted and agreed by the Sellers and the
Buyer and that the draft Cash Balances Statement shall constitute the Cash
Balances Statement for the purposes of the Agreement.
3.8 If the Buyer serves a valid notice in accordance with clause 3.6.2 and
the aggregate value of the Buyer's proposed adjustments to the Cash Balances
Statement and/or the value of the Completion Cash Balances exceeds
50,000 pounds:
3.8.1 the parties shall endeavour to resolve all matters in dispute as soon
as practicable. If they fail to resolve such matters within 20 Business Days of
such failure or the date on which the Key Sellers receive such notice from the
Buyer (or such longer period as the parties shall agree) (the "RESOLUTION
PERIOD") the Buyer or the Key Sellers may refer any matter in dispute to an
independent chartered accountant for resolution. The identity of such
accountant shall be agreed between the parties and he shall be appointed within
10 Business Days of the expiry of the Resolution Period (the "APPOINTMENT
PERIOD"). If the parties fail to make such an appointment within the
Appointment Period, the appointment shall be made by the President for the time
being of the Institute of Chartered Accountants in England and Wales within 5
Business Days of the expiry of the Appointment Period, on the application of
either the Buyer or the Key Sellers. Such accountant so appointed shall be
instructed to determine the dispute in accordance with the provisions of this
clause 3 and to make such determination as soon as practicable and in any event
within 30 Business Days of his being instructed or such longer period as he
shall, in his discretion, reasonably require. In making such determination,
such accountant shall act as an expert and not as an arbitrator and his decision
shall (in the absence of manifest error) be final and binding on the parties.
The costs of such accountant shall be borne by the parties in such proportions
as he may direct or, in the absence of any such direction, as to one half by the
Buyer and as to the other half by the Sellers; and
3.8.2 the parties shall bear their own costs in connection with the
resolution of the matters in dispute.
3.9 The Buyer shall procure that the Key Sellers and their accountants are
given all such assistance and access to all such information in the Buyer's
control or possession as they may reasonably require in order to assist them
with the preparation of the Cash Balances Statement subject to the Key Sellers
complying with any hold harmless or similar requirements of the Buyer's
accountants in connection with the release of such working papers to the Key
Sellers.
3.10 The receipt of the Buyer's Solicitors or the Sellers' Solicitors of any
payment made out of the Retention Account shall be an absolute discharge of the
paying party.
3.11 The parties shall promptly give to the Sellers' Solicitors and the
Buyer's Solicitors all such written instructions as shall be necessary to give
effect to the provisions of this clause.
3.12 Interest which accrues on the Retention Account shall follow the
capital and be released to the party or parties entitled thereto
contemporaneously with, and proportionately to, the release of the capital.
4. COMPLETION
OBLIGATIONS UPON EXECUTION
4.1 Upon the execution of this Agreement, the Key Sellers undertake to:
4.1.1 procure that the Company and the directors of the Company enter into
the Co-operation Agreement and deliver the same to the Buyer;
4.1.2 deliver to the Buyer irrevocable undertakings in the approved terms in
relation to (i) acceptance of the D Offer in respect of not less that 50% of the
issued D share capital of the Company; and (ii) a rollover into options over
shares in the Buyer in respect of D Options to subscribe for not less than
241,557 D Shares;
4.1.3 (subject to approval by Numis for the purposes of section 21 of the
Financial Services and Markets Act 2000) procure that the Company authorises the
despatch of the D Offer Document and the D Option Letter;
4.1.4 procure so far as they are able (a) that the Company provides all
reasonable assistance to the Buyer to enable the D Offer to be declared
unconditional as to acceptances and (b) the exercise or roll over of D Options
to subscribe for D Shares by such option holders;
4.1.5 deliver foreign legal opinions in the approved terms to the Buyer
confirming, among other things, that each of VS&A Communications, Griffin Land
and the Trust Company has full power and authority to enter into and perform
this Agreement (and any other agreement or arrangement required to be entered
into in connection with this Agreement) and that the receipt by each of them of
Consideration Shares and/or Consideration Loan Notes, as appropriate, will not
breach any laws or regulatory requirements of the relevant jurisdictions which
apply to them; and
4.1.6 (subject to approval by Numis for the purpose section 21 of the
Financial Services and Markets Act 2000) procure that the Company posts the D
Option Letter to the holders of D Options.
4.2 As soon as reasonably practicable and in any event not later than 5.00
p.m. on 1 March 2004, the Buyer undertakes (to the extent consistent with the
fiduciary duties of its directors) to:
4.2.1 deliver a copy of the executed Placing Agreement to the Sellers'
Solicitors;
4.2.2 publish the Admission Document and comply with all requirements of the
London Stock Exchange as may be necessary to procure Admission on or before the
Long Stop Date; and
4.2.3 subject to approval by Numis, the authorisation referred to in clause
4.1.3 and filing of the Admission Document with Companies House, post the D
Offer Document to D shareholders and for information only to holders of D
Options.
POSITION PENDING COMPLETION
4.3 From the date of this Agreement until Completion, the Key Sellers shall:
4.3.1 procure that the business of each Target Group Company is carried on
in the ordinary and usual course as regards its nature, scope and manner;
4.3.2 procure that the Buyer and its agents will, at reasonable times and on
reasonable notice, be given reasonable access to management and the records and
papers, documents and data (in whatever form they may exist) of each Target
Group Company;
4.3.3 procure that each Target Group Company will continue to pay creditors
and collect debts in accordance with the usual custom and practice of the
relevant Target Group Company;
4.3.4 use their reasonable endeavours to procure so far as they are able
that no Target Group Company shall knowingly do, allow or procure any act or
omission which would to the knowledge of the Key Sellers require the Buyer to
issue a supplementary admission document as required by the AIM Rules; and
4.3.5 disclose to the Buyer in writing immediately upon becoming aware of
any fact, matter, event or circumstance which would or might in the Key Sellers'
reasonable opinion require the Buyer to issue a supplementary admission document
as required by the AIM Rules.
4.4 Without prejudice to clause 4.3, from the date of this Agreement until
Completion, the Key Sellers shall procure that no member of the Target Group
shall except to the extent contemplated by the Perfect Information
capitalisation take any of the following steps without the prior written consent
of the Buyer, such consent not to be unreasonably withheld or delayed:
4.4.1 other than on the exercise of the D Options or any outstanding options
to subscribe for ordinary shares in Perfect Information Limited disclosed in the
Disclosure Letter, admit any person as a member (whether by subscription,
transfer or transmission);
4.4.2 make any increase or reduction or other alteration whatsoever
(including by way of redemption, purchase, sub-division, consolidation or
redesignation) of its share capital or grant any option to subscribe for or
acquire any of its shares or issue any securities convertible into any of its
shares;
4.4.3 declare or pay any dividend or make any other distribution in respect
of its profits, assets or reserves or in any other way reduce its reserves
(other than any reduction in reserves which may result from the carrying on of
the business of any Target Group Company in the ordinary course);
4.4.4 otherwise than in the ordinary and usual course of trading, sell,
lease, transfer, license or otherwise dispose of or purchase, lease, license or
otherwise acquire assets, businesses or undertakings (or any interest therein)
of a value exceeding 20,000 pounds whether by a single transaction or by a
series of transactions (related or not);
4.4.5 enter into or make itself liable for any capital commitment (whether
by way of purchase, lease, hire purchase or otherwise) which either individually
or when taken together with any other capital commitment exceeds
50,000 pounds;
4.4.6 form, enter into, terminate or withdraw from any partnership,
consortium, joint venture or any other unincorporated association;
4.4.7 enter into, or increase or extend any liability under, any guarantee
or indemnity (save to the extent such increase or extension occurs pursuant to
the terms of any such guarantee, or indemnity already entered into);
4.4.8 except in the ordinary and usual course of trading, amend, vary or
waive any material provision of, or enter into, fail to enforce or terminate (or
give notice to terminate), any employment arrangements of any director, officer
or senior employee or provide a gratuitous payment or benefit to such a person
(or any of their dependants);
4.4.9 except in the ordinary course of trading, amend, vary, waive or breach
any material provision of, or enter into, fail to enforce or terminate (or give
notice to terminate) any contract to which any Target Group Company is a party
which is material or outside the ordinary and usual course of trading;
4.4.10 make, increase or extend any loan or advance or grant any credit to
anyone whomsoever (other than (i) trade credit in the ordinary and usual course
of trading or (ii) advances made to employees against expenses properly incurred
by them);
4.4.11 grant, create or allow to arise any Security Interest over any of its
material assets (other than charges arising by operation of law in the ordinary
and usual course of trading);
4.4.12 borrow any monies or incur any indebtedness or other liability other
than trade credit in the ordinary and usual course of trading;
4.4.13 acquire or dispose of any freehold or leasehold property, grant or
surrender a lease in respect of such property or take or omit to take any action
which could prejudice the continuation of any such lease;
4.4.14 incorporate or liquidate any subsidiary undertaking or effect any
hive-up or hive-down or any reorganisation;
4.4.15 initiate, discontinue or settle any litigation or arbitration
proceedings where the amount claimed (either by or against it) exceeds 20,000
pounds per claim;
4.4.16 enter into any commitment or agreement, or put itself in a position
where it is obliged to announce that any commitment or agreement may be entered
into which could materially or adversely affect the Placing or which is or may
be material in relation to the Placing or is material in the context of the
business or affairs of the Target Group taken as a whole; or
4.4.17 enter into a legally binding agreement to do any of the things
referred to in this clause 4.4.
4.5 TERMINATION
4.5.1 Subject to clause 4.5.2 and without prejudice to any other remedies or
accrued rights which it may have against the Sellers (or any of them), the Buyer
shall be entitled by notice to the Sellers to terminate this Agreement if, at
any time on or before the Long Stop Date or Completion (if earlier) the Buyer
becomes aware of any fact, matter, event or circumstance which:
(a) constitutes a material breach of any of the Warranties given upon the
execution of this Agreement;
(b) will constitute a material breach of any of the Warranties when deemed
given again immediately prior to Escrow Completion or Completion (as defined
below); or
(c) would in the reasonable opinion of Numis require the Buyer to issue a
supplementary admission document in accordance with the AIM Rules,
whereupon the provisions of this Agreement (other than clauses 1
(Definitions and Interpretation) 4.5, 7 (Confidentiality), 8 (Announcements), 9
(Costs), 11 (Applicable law and jurisdiction), 12 (General) and 13 (Notices))
shall cease to have effect.
4.5.2 The exercise of the right in clause 4.8.1 by the Buyer to terminate
this Agreement shall extinguish any right to damages for breach of any Warranty
to which the Buyer may be entitled in respect of any fact, matter, event or
circumstance referred to in clause 4.8.1 to the extent that such fact, matter,
event or circumstance arises in consequence only of one or more of the
following:-
(a) the occurrence after the date of this Agreement and prior to Completion
of an event constituting a material breach or non-fulfilment of any Warranty
when repeated at Escrow Completion or Completion if such event could not
reasonably have been avoided or prevented by action taken by the Sellers before
or after the date of this Agreement and before Completion and such occurrence is
duly notified in writing to the Buyer in accordance with Clause 5.12;
(b) any act or thing done or omitted to be done at any time after the date
of this Agreement at the written request or with the written approval of the
Buyer; or
(c) the occurrence of any abnormal event or factor affecting to the same
extent all persons carrying on business in the United Kingdom similar to that
carried on by the Target Group.
4.6 If, on the occurrence of the circumstances provided for in clause
4.5.1(c) the Buyer does not serve notice on the Sellers terminating this
Agreement, and the Buyer is required to issue a supplementary admission document
in accordance with the AIM Rules then the Buyer shall be entitled, at its
discretion, to defer the Long Stop Date (and the Escrow Completion Date if such
date has been fixed in accordance with clause 4.13) to such date as the Buyer
reasonably believes is necessary to produce such supplementary admission
document and satisfy any outstanding Conditions, up to a maximum deferral period
of 10 Business Days.
4.7 For the purposes of clause 4.5, the expression "MATERIAL BREACH" shall
mean a breach which is material in the context of the Target Group taken as a
whole.
4.8 If the Buyer wishes to terminate this Agreement pursuant to clause 4.5,
it shall do so by serving a written notice to that effect on the Sellers. Such
notice shall specify the grounds on which this Agreement is being terminated.
4.9 Save as provided in clauses 2.3, 4.5, 4.12 and 4.13, this Agreement may
not be terminated or rescinded.
ESCROW COMPLETION REQUIREMENTS
4.10 Subject to the prior satisfaction (or waiver) of the Condition set out
in clause 2.1.3 and the Placing Agreement not having been terminated prior to
that date, an escrow completion meeting ("ESCROW COMPLETION") shall take place
at the offices of the Buyer's Solicitors on the Business Day immediately prior
to the date on which Admission is expected to take place as notified by the
Buyer to the Sellers (the "ESCROW COMPLETION DATE"). The date on which Escrow
Completion is required to take place in accordance with this clause 4.10 is
referred to hereafter as the "SCHEDULED ESCROW COMPLETION DATE" which expression
shall include any later date set for Escrow Completion in accordance with clause
4.6, 4.12.1 or 4.13.1. At Escrow Completion:
4.10.1 the Sellers shall perform their obligations in accordance with and as
set out in Part I of Schedule 3;
4.10.2 the Buyer shall perform its obligations in accordance with and as set
out in Part II of Schedule 3 and clause 3.2, provided that in relation to its
obligation in clause 3.2.1 and 3.2.4 the Buyer shall only be required to provide
an undertaking that conditional upon Admission and upon the performance by the
Sellers of their obligations it will perform such obligations; and
4.10.3 the Sellers and the Buyer shall execute and deliver the Escrow
Instruction Letter to the Buyer's Solicitors and the Sellers' Solicitors
irrevocably instructing them to hold documents executed and delivered pursuant
to this clause 4.10 in escrow in accordance with this clause 4.
4.11 Each undated document delivered at Escrow Completion pursuant to clause
4.10 (other than the Escrow Instruction Letter) shall remain undated and shall,
together with all other documents required to be delivered pursuant to that
clause, be held by the Buyer's Solicitors and the Sellers' Solicitors (as the
case may be) in escrow. The escrow arrangement shall terminate and Completion
shall take place immediately upon the Admission Condition being satisfied, the
Placing Agreement having become unconditional in all respects and not having
been terminated prior to Admission and the Buyer's Solicitors providing
confirmation that the Initial Cash Consideration has been received in the
Buyer's Solicitor's client account and delivering an undertaking (in the
approved terms) to issue an instruction that such amount (plus any interest
accrued thereon from Completion) be transferred to the Sellers' Solicitors and
the Retention to the Retention Account at Completion (together, the "ESCROW
CONDITIONS"). During the escrow period, the parties shall procure that none of
the documents to be delivered pursuant to clause 4.10 are varied or otherwise
amended or terminated and that no notice to terminate any such document or
agreement is given. If this Agreement subsequently lapses or is terminated in
accordance with clauses 2.3, 4.5, 4.12 or 4.13 respectively, each of the undated
documents delivered pursuant to clause 4.10 shall be deemed to be of no effect
and the parties shall procure that such documents shall be released back to the
party who delivered such document into escrow.
4.12 Without prejudice to any other remedies or accrued rights which the
Buyer may have against the Sellers (or any of them), if the Sellers (or any of
them) shall not have complied with all their obligations under clause 4.10, the
Buyer shall be entitled, at its discretion:
4.12.1 to defer the Escrow Completion Date to any subsequent Business Day
falling not more than 20 Business Days after the scheduled Escrow Completion
Date or any later Escrow Completion Date set in accordance with this clause (the
period between the scheduled Escrow Completion Date and the deferred Escrow
Completion Date being referred to in this Agreement as the "ESCROW COMPLETION
DEFERRAL PERIOD"). In such event this clause 4.12 shall apply to the Escrow
Completion Date so deferred and, if the Buyer so elects, the Long Stop Date
shall be extended by such number of days, not exceeding the number of days equal
to the Escrow Completion Deferral Period plus one Business Day, as the Buyer may
determine;
4.12.2 to waive the requirement to fulfil those obligations in whole or in
part on the Escrow Completion Date;
4.12.3 so far as practicable, to proceed to Completion in accordance with
the remaining provisions of this clause 4; or
4.12.4 by notice to the Sellers to terminate this Agreement, whereupon the
provisions of this Agreement (other than clauses 1 (Definitions and
Interpretation), 7 (Confidentiality), 8 (Announcements), 9 (Costs), 11
(Applicable law and jurisdiction), 12 (General) and 13 (Notices)) shall cease to
have effect provided always that the Buyer shall not be permitted to terminate
this Agreement under this clause 4.12.4 if the failure by the Sellers or any of
them to comply with their obligations under clause 4.10 are not material in the
context of the transactions taken as a whole.
4.13 Without prejudice to any other remedies or accrued rights which the
Sellers may have against the Buyer, if the Buyer shall not have complied with
all its obligations under clause 4.10, the Sellers shall be entitled, at their
discretion:-
4.13.1 to defer the Escrow Completion Date to any subsequent Business Day
falling not more than 20 Business Days after the scheduled Escrow Completion
Date or any later Escrow Completion Date set in accordance with this clause. In
such event this clause 4.13 shall apply to the Escrow Completion Date so
deferred and, if the Sellers so elect, the Long Stop Date shall be extended by
such number of days, not exceeding the number of days equal to the Escrow
Completion Deferral Period plus one Business Day, as the Sellers may determine;
or
4.13.2 by notice to the Buyer to terminate this Agreement, whereupon the
provisions of this Agreement (other than clauses 1 (Definitions and
Interpretation), 7 (Confidentiality), 8 (Announcements), 9 (Costs), 11
(Applicable law and jurisdiction), 12 (General) and 13 (Notices)) shall cease to
have effect provided always that the Sellers shall not be permitted to terminate
this Agreement under this clause 4.13.2 if the failure by the Buyer to comply
with its obligations under clause 4.10 are not material in the context of the
transactions taken as a whole.
COMPLETION REQUIREMENTS
4.14 Immediately upon satisfaction of the Escrow Conditions:
4.14.1 Completion shall take place automatically;
4.14.2 each of the documents held in escrow pursuant to clause 4.11 shall be
released and become the absolute property of the party entitled thereto (and
each of such documents which remained undated at Escrow Completion shall be
dated by the Buyer's Solicitors and the Sellers' Solicitors as appropriate, and
become effective as of the Completion Date).
4.14.3 the Buyer's Solicitors shall issue an instruction to transfer the
Initial Cash Consideration (plus any interest accrued thereon from Completion)
to the Sellers' Solicitors and the Retention to the Retention Account in
accordance with the terms of the Buyer's Solicitors' undertaking.
4.15 The Buyer and the Sellers shall promptly give to their respective
solicitors all such irrevocable instructions as shall be necessary to give
effect to the provisions of this clause in accordance with the Escrow
Instruction Letter.
4.16 VS&A Communications undertakes to the Buyer that it will exercise its
drag-along rights under article 8.3 of the Company's Articles of Association at
the direction of the Buyer at any time after the date of this Agreement.
5. WARRANTIES
5.1 Each of the Warrantors, upon the execution of this Agreement, severally
warrants to the Buyer in the terms of the Warranties. Each of the Warrantors
acknowledges that the Buyer has relied on the Warranties in entering into this
Agreement and in making the D Offer.
5.2 Each Warranty is given subject only to matters disclosed in the
Disclosure Letter. For this purpose, and for all purposes under this Agreement,
the expression "DISCLOSED" means fairly disclosed in such a manner and in such
detail as to enable the Buyer to make an informed assessment of the matter
concerned.
5.3 The Buyer confirms to the Warrantors that, save to the extent that it is
disclosed in the Disclosure Letter, there is no fact, matter, event or
circumstance which is known to the Buyer and which, to the Buyer's actual
knowledge, constitutes a breach of Warranty as at the date of this Agreement.
For this purpose, the Buyer shall be deemed only to have knowledge of anything
of which Jag Mundi, Rhodri Cruwys, Stuart Skinner, Colin Morrison or Patrick
Taylor are actually aware. No fact, matter, event or circumstance of which the
Buyer may have constructive knowledge shall prejudice any claim made by the
Buyer under the Warranties or operate to reduce any amount recoverable.
5.4 The Warranties shall continue in full force and effect notwithstanding
Completion.
5.5 Each Warranty shall be separate and independent and, save as expressly
provided, shall not be limited by reference to any other Warranty or any other
provision in this Agreement.
5.6 Where any statement in the Warranties is qualified by the expression "TO
THE BEST OF THE KNOWLEDGE, INFORMATION AND BELIEF OF THE WARRANTORS" or "SO FAR
AS THE WARRANTORS ARE AWARE" or any similar expression, the Warrantors shall be
deemed to have knowledge of:
5.6.1 anything of which any of Graham Sherren, Marco Sodi, Michael Danziger,
Geoffrey Wilmot, Tom Scruby and Ian Roberts have actual knowledge, or is deemed
to have knowledge by clause 5.6.2 but not otherwise;
5.6.2 anything of which such persons as are referred to in clause 5.6.1
ought reasonably to have knowledge given his particular position in, and
responsibilities to, any Target Group Company; and
5.6.3 anything which would be revealed after having made all reasonable
enquiries of Kate Walker of Watson Wyatt, the Target Group's pensions advisors
in respect of those warranties contained in Part XIV of Schedule 5.
5.7 Any claim, save for any claim in respect of a breach of the Warranties
contained in paragraph 8 of Part II of Schedule 5, shall be limited in
accordance with Schedule 6 provided that none of the provisions in Schedule 6
shall apply to the extent that any Warrantor has fraudulently or dishonestly
made or omitted to make a disclosure in the Disclosure Letter.
5.8 Each Warrantor agrees with the Buyer:
5.8.1 that the giving by any Target Group Company and/or any of their
respective officers, employees, agents or advisers (past or present) to the
Sellers (or any of them) or their agents or advisers (past or present) of any
information or opinion in connection with the Warranties, the Tax Deed or the
Disclosure Letter or otherwise in relation to the business or affairs of any
Target Group Company or in connection with the negotiation and preparation of
this Agreement, the Tax Deed or the Disclosure Letter shall not be deemed to be
a representation, warranty or guarantee to the Warrantors of the accuracy of
such information or opinion;
5.8.2 save in the case of fraud or dishonesty on the part of any such
person, to waive any right or claim which he may have against any Target Group
Company and/or any of their respective officers, employees, agents or advisers
for any error, omission or misrepresentation in any such information or opinion;
and
5.8.3 that any such right or claim shall not constitute a defence to any
claim by the Buyer under or in relation to this Agreement (including the
Warranties) or the Tax Deed.
5.9 Each Warranty which is expressed to be given in relation to the Company
shall also be deemed to be given in relation to each of the other members of the
Target Group as if it had been repeated with respect to each such member naming
it in place of the Company throughout.
5.10 The Warrantors shall be deemed to warrant again to the Buyer in the
terms of the Warranties immediately before Escrow Completion and again
immediately before Completion with reference to the facts and circumstances then
subsisting (save that a reference to any fact, matter, event or circumstance
existing, occurring or having occurred at or before the date of this Agreement
shall also be construed as a reference to its existing, occurring or having
occurred at or before Completion or, as the case may be, Escrow Completion),
PROVIDED THAT no right to damages or compensation or otherwise in respect of a
breach of any Warranty shall arise in consequence only of one or more of the
following:-
5.10.1 the occurrence after the date of this Agreement and prior to Escrow
Completion or Completion (as the case may be) of an event constituting a breach
or non-fulfilment of any Warranty when repeated at Escrow Completion or
Completion if such event could not reasonably have been avoided or prevented by
action taken by the Sellers before or after the date of this Agreement and
before Completion and such occurrence is duly notified in writing to the
Purchaser in accordance with Clause 5.12;
5.10.2 any act or thing done or omitted to be done at any time after the
date of this Agreement at the written request or with the written approval of
the Buyer; or
5.10.3 the occurrence of any abnormal event or factor affecting to the same
extent all persons carrying on business in the United Kingdom similar to that
carried on by the Target Group.
5.11 The Warrantors shall not, and shall use all reasonable endeavours to
procure so far as they are able that no Target Group Company shall, knowingly
do, allow or procure any act or omission which to the knowledge of the
Warrantors would or might reasonably be expected to constitute a material breach
of any of the Warranties prior to Completion. For the purposes of this clause
5.11, the expression "material breach" shall mean a breach which is material in
the context of the Target Group taken as a whole.
5.12 Each of the Warrantors undertakes to the Buyer to disclose to it in
writing, immediately upon it becoming aware of the same, full details of any
fact, matter, event or circumstance which:
5.12.1 constitutes or might reasonably be expected to constitute a breach of
any of the Warranties given upon the execution of this Agreement; or
5.12.2 constitutes or might reasonably be expected to constitute a breach of
any of the Warranties when deemed given again immediately prior to Escrow
Completion or Completion.
6. PROTECTION OF GOODWILL
6.1 Graham Sherren undertakes to the Buyer that he will not, directly or
indirectly:
6.1.1 at any time prior to or during the period of 24 calendar months from
the Completion Date engage in or be concerned or interested in any business
which is carried on within the UK and Ireland in competition with the Business
as carried on at the date of this Agreement and/or the Completion Date;
6.1.2 at any time prior to or during the period of 24 calendar months from
the Completion Date, solicit or endeavour to solicit the custom of, or deal or
endeavour to deal with, any person who is or, at any time during the period of
12 calendar months prior to the Completion Date, was a significant customer or
client of any Target Group Company or had during such period been engaged in
negotiations with any Target Group Company with a view to entering into a
contract with any Target Group Company, in such a way as will or is likely to
compete with, or harm the goodwill of, the Company or any other Target Group
Company; or
6.1.3 at any time prior to or during the period of 24 calendar months from
the Completion Date, interfere or endeavour to interfere with the continuance of
supplies to any Target Group Company (or the terms relating to those supplies)
by any person who is or at any time during the period of 12 calendar months
prior to the Completion Date was a supplier to any Target Group Company or had
during such period been engaged in negotiations with any Target Group Company
with a view to entering into a supply contract with any Target Group Company for
the supply of any goods or services to any Target Group Company.
6.2 Each of the Warrantors severally undertakes to the Buyer that he will
not, directly or indirectly at any time prior to or during the period of 24
calendar months from the Completion Date, solicit or entice away, or endeavour
to solicit or entice away, from the Company or any other Target Group Company
any person who is or was at the Completion Date, or who at any time during the
period of 12 calendar months prior to the Completion Date had been, an employee
of the Company or any other Target Group Company with a basic salary of 50,000
pounds or more, whether or not such person would commit a breach of his
employment contract by reason of leaving service.
6.3 Nothing contained in clause 6.1 shall prevent Graham Sherren from
holding by way of bona fide personal investment any units of any authorised unit
trust and from being the holder or beneficial owner of any class of securities
in:-
6.3.1 the Buyer; or
6.3.2 in any other company if such class of securities is listed, or dealt
in, on a recognised investment exchange (within the meaning of Part XVIII of the
Financial Services and Markets Act 2000) provided that it neither holds nor is
beneficially interested in more than a total of 5% of any single class of the
securities in that company.
6.4 Each of the undertakings contained in clauses 6.1 and 6.2 is a separate
undertaking by Graham Sherren and shall be enforceable by the Buyer (on its own
behalf and on behalf of the Company and each Group Company) separately and
independently of its right to enforce any one or more of the other covenants
contained in clauses 6.1 and 6.2. Each Warrantor agrees (having taken
independent legal advice) that the undertakings contained in clauses 6.1 and 6.2
are reasonable and necessary for the protection of the legitimate interests of
the Buyer, the Company and any other Target Group Company and that these
restrictions do not work harshly on him. It is nevertheless agreed that, if any
such undertaking shall be found to be void but would be valid if some part were
deleted, then such undertaking shall apply with such deletions as may be
necessary to make it valid and enforceable.
6.5 For the purposes of clauses 6.1 and 6.2, "DIRECTLY OR INDIRECTLY" shall
(without limiting the expression) mean each of the Warrantors acting either
alone or jointly with or on behalf of any other person whether as principal,
partner, manager, employee, contractor, director, consultant, investor (subject
to clause 6.3) or otherwise.
6.6 Each of the Warrantors undertakes to the Buyer that from the Completion
Date he shall, and procure so far as he is able that his connected persons and
Affiliates shall, cease in any manner whatsoever to use or display any Business
Names or any confusingly similar trade or service marks, trade or service names,
domain names, design rights, logos, devices, formats or styles.
6.7 Save as stated in clause 6.9 each of the undertakings contained in
clauses 6.1, 6.2 and 6.6 (to the extent they apply to each Warrantor) shall also
be deemed to be given by the connected persons and Affiliates of each of the
Warrantors, and the Warrantors undertake to procure that each of their connected
persons and Affiliates comply with the undertakings set out therein.
6.8 The Buyer confirms that none of the undertakings given by Graham Sherren
contained in clauses 6.1, 6.2 and 6.6 will limit the ability of Graham Sherren
to carry out his duties and perform his obligations to the Company or the Buyer
pursuant to his service agreement from time to time.
6.9 For the avoidance of doubt:-
6.9.1 the provisions of clause 6.2 shall not apply to VS&A Communications in
respect of any company (not being an Affiliate) which VS&A Communications or any
of its sister funds is an arms length investor; and
6.9.2 the provisions of clause 6.1.1 shall not operate in anyway to restrict
the activities of Jonathan Scott, save in respect of any such activity which
directly or indirectly involves Graham Sherren or any of his connected persons
(other than Jonathan Scott).
7. CONFIDENTIALITY
7.1 Each Seller undertakes in all respects to keep confidential and not at
any time disclose or make known in any other way to anyone whomsoever or use for
their own or any other person's benefit or to the detriment of any Target Group
Company any Confidential Information, provided that:
7.1.1 such obligation shall not apply to information which becomes generally
known (other than through a breach by any Seller of this clause);
7.1.2 any Seller shall be entitled at all times to disclose such information
as may be required by law or by any competent judicial or regulatory authority
or by any recognised investment exchange (provided that, so far as practicable,
the relevant Seller(s) shall consult with the Buyer prior to making such
disclosure);
7.1.3 any Seller shall be entitled to disclose to its officers, employees,
agents or advisers such information as may be necessary to enable them to carry
out their duties (conditional upon any such person being informed of the
confidential nature of such information and agreeing to keep such information
confidential for as long as the relevant Seller is obliged to do so in
accordance with this clause); and
7.1.4 such obligation shall not restrict Graham Sherren in the performance
of his duties and obligations pursuant to his service agreement with the Company
or the Buyer following Completion.
7.2 The Sellers agree with the Buyer that, with effect from Completion, they
shall assign (insofar as they are able) to the Buyer and each Target Group
Company the benefit of any other confidentiality undertakings given to the
Sellers (or any of them) by prospective purchasers of the Shares insofar as such
undertakings relate to any matter connected with any Target Group Company and in
any case where the benefit of any such undertakings cannot lawfully be assigned
to, or (for whatever reason) enforced by, the Buyer or the relevant Target Group
Company the Sellers agree, if the Buyer so requests, to procure as far as they
are able the other parties to return copies of all information which the Sellers
(or any of them) are entitled to require to be returned under the terms of such
undertakings.
8. ANNOUNCEMENTS
8.1 Subject to clause 8.2, no party shall issue any press release or publish
any circular to shareholders or any other document or make any public statement
or otherwise make any public disclosure, before or after Completion, relating to
this Agreement, any of the matters provided for or referred to in this Agreement
or any ancillary matter. This clause shall not prohibit any announcement or
disclosure required by law or by any competent judicial or regulatory authority
or by any recognised investment exchange (in which case the parties shall
co-operate, in good faith, in order to agree the content of any such
announcement so far as practicable prior to it being made).
8.2 Notwithstanding clause 8.1:
8.2.1 in co-operation with the Buyer, any Target Group Company may inform
customers or suppliers of the acquisition of the Target Group by the Buyer
following Completion;
8.2.2 the Buyer may publish the Admission Document, make available to the
public such documents as are required by the AIM Rules in connection with
Admission and otherwise make any announcement or other disclosure as is required
by the London Stock Exchange in relation to the issue of the Admission Document
and application for Admission;
8.2.3 the Buyer is permitted to disclose information relating to matters
referred to in this Agreement to potential investors in the Buyer (conditional
upon any such person being informed of the confidential nature of such
information);
8.2.4 the Buyer is permitted to make the disclosures contained in, and to
post the D Offer Document and the D Options Letter;
8.2.5 Griffin Land may make disclosures (and the provisions of clause 8.1
shall not limit its ability to make announcements) in compliance with its
regulatory obligations provided that where reasonably practicable it shall
notify the Buyer of such obligation to make a disclosure and the contents of
such disclosure in advance and shall take account of the reasonable comments of
the Buyer.
9. COSTS
9.1 Each party shall pay its own costs and expenses incurred in connection
with the preparation, negotiation and completion or termination of this
Agreement.
9.2 The Sellers represent and agree that none of such costs and expenses or
any costs and expenses in relation to the D Offer and Admission have been nor
will prior to Completion be borne by any Target Group Company.
10. CAPACITY AND SHARES
10.1 Each Seller warrants to the Buyer and the Buyer warrants to each of the
Sellers that he has full power and authority and has obtained all necessary
consents to enter into and perform the obligations expressed to be assumed by
him under this Agreement (and any other agreement or arrangement required to be
entered into by him in connection with this Agreement), that the obligations
expressed to be assumed by him hereunder are legal, valid and binding and
enforceable against him in accordance with their terms and that the execution,
delivery and performance by him of this Agreement and each such other agreement
and arrangement will not:
10.1.1 result in a breach of, or constitute a default under, any agreement or
arrangement to which he is a party or by which he is bound or, in the case of a
party who is a corporation, under its constitutional documents; or
10.1.2 result in a breach of any law or order, judgment or decree of
any court, governmental agency or regulatory body to which he is a party or by
which he is bound.
10.2 Each Seller (other than the Trust Company) warrants to the Buyer
that the number of Shares set opposite his name in column (2) of Schedule
1 are legally and beneficially owned by him and are free from all Security
Interests and such Shares are fully paid and have been properly and
validly allotted.
10.3 The Trust Company warrants to the Buyer that the number of Shares
set opposite its name in column (2) of Schedule 1 are legally owned by it as
nominee for Rothschild Trust (Schweiz) AG and RTB Trustees Limited in their
capacity as trustees of each of the Graham Sherren Settlement and the John
Raw Settlement and are free from all Security Interests and such Shares are
fully paid and have been properly and validly allotted.
10.4 Each Seller warrants to the Buyer that he is not entitled to any
claim of any nature against any Target Group Company (other than, in the
case of Graham Sherren, any claim for salary and other accrued benefits as
set out in any outstanding service agreement from time to time of Graham
Sherren) or any officers, employees, agents, advisers, customers or
suppliers of any Target Group Company and he has not assigned to any third
party the benefit of any such claim to which he was previously entitled.
11. APPLICABLE LAW AND JURISDICTION
11.1 This Agreement and the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of England.
11.2 The parties irrevocably submit to the non-exclusive jurisdiction of
the courts of England and Wales in respect of any claim, dispute or
difference arising out of or in connection with this Agreement, provided
that nothing contained in this clause shall be taken to have limited the
right of the Buyer to proceed in the courts of any other competent
jurisdiction.
12. GENERAL
ENTIRE AGREEMENT
12.1 This Agreement (together with any documents referred to herein
or required to be entered into pursuant to this Agreement) contains the
entire agreement and understanding of the parties and supersedes all prior
agreements, understandings or arrangements (both oral and written) relating
to the subject matter of this Agreement and any such document.
12.2 Each party to the Agreement acknowledges that he is entering into
this Agreement without reliance on any undertaking, warranty or representation
of any kind given by or on behalf of any other party other than as expressly
contained in this Agreement including for the avoidance of doubt but not
limited to the Warranties (as modified by the Disclosure Letter) and that
each party will have no remedy against another party in respect of any
undertaking, warranty or representation made on or prior to the date of
this Agreement, provided that nothing in this clause shall exclude any
party from liability for fraudulent misrepresentation.
VARIATIONS AND WAIVERS
12.3 No variation of this Agreement shall be effective unless made in
writing signed by or on behalf of all the parties and expressed to be such
a variation.
12.4 No failure or delay by any party or time or indulgence given
in exercising any remedy or right under or in relation to this Agreement
shall operate as a waiver of the same nor shall any single or partial exercise
of any remedy or right preclude any further exercise of the same or the
exercise of any other remedy or right.
12.5 No waiver by any party of any requirement of this Agreement, or of
any remedy or right under this Agreement, shall have effect unless given in
writing and signed by such party. No waiver of any particular breach of the
provisions of this Agreement shall operate as a waiver of any repetition
of such breach.
12.6 Any, waiver, release or compromise or any other arrangement of any
kind whatsoever which any party gives or enters into with any other
party in connection with this Agreement shall not affect any right or
remedy of such party as regards any other parties or the liabilities of any
other such parties under or in relation to this Agreement.
ASSIGNMENT
12.7 No party shall be entitled to assign, transfer or create any trust in
respect of the benefit or burden of any provision of this Agreement (or any of
the documents referred to herein) without the prior written consent of the
other parties.
EFFECT OF COMPLETION
12.8 The provisions of this Agreement, insofar as the same shall not have
been fully performed at Completion, shall remain in full force and effect
notwithstanding Completion.
COUNTERPARTS
12.9 This Agreement may be executed as two or more counterparts and
execution by each of the parties of any one of such counterparts
will constitute due execution of this Agreement.
FURTHER ASSURANCE
12.10 Each Seller shall, and shall use all reasonable endeavours to
procure that any necessary third party shall, do and execute and
perform all such further deeds, documents, assurances, acts and things
as may reasonably be required to give effect to such Seller's obligations
under this Agreement.
12.11 The Buyer shall, and shall use all reasonable endeavours to procure
that any necessary third party shall, do and execute and perform all such
further deeds, documents, assurances, acts and things as may reasonably be
required to give effect to the Buyer's obligations under this Agreement.
OTHER REMEDIES
12.12 Any remedy or right conferred upon the Buyer or Sellers for breach
of this Agreement shall be in addition to and without prejudice to all other
rights and remedies available to it.
DEFAULT INTEREST
12.13 If any amount required to be paid by any party under this Agreement
(or any other agreement or arrangement required to be entered into by
it in connection with this Agreement) is not paid when it is due, such amount
shall bear interest at the rate of 3% per annum over the base lending rate of
National Westminster Bank Plc from time to time, calculated on a daily basis
for the period from the relevant due date for payment up to and including the
date of actual payment, as well after as before any judgment.
THIRD PARTY RIGHTS
12.14 Where, in connection with this Agreement (or any other agreement or
arrangement to be entered into by the Buyer in connection with this Agreement),
any Seller undertakes any obligation in respect of any person (other than, or in
addition to, the Buyer) that Seller unconditionally and irrevocably acknowledges
and agrees that the Buyer is entering into this Agreement (or any such other
agreement or arrangement) and accepting the benefit of such obligations not only
for itself but also as agent and trustee for such other person.
12.15 Subject to clauses 12.12 and 12.14, any provision of this Agreement
which confers a benefit upon any member of the Buyer Group (the "THIRD PARTIES")
is intended to be enforceable by the Third Parties under the Contracts (Rights
of Third Parties) Act 1999. Such provisions may be enforced by the Third
Parties or by the Buyer acting on their behalf as agent and trustee pursuant to
clause 12.12. For the avoidance of doubt, such provisions shall include clause
6 and 7 of this Agreement.
12.16 Save as provided in clause 12.13, no other provisions of this
Agreement which confer benefits upon any third party shall be enforceable
pursuant to the Contracts (Rights of Third Parties) Act 1999 by any
such third party.
12.17 Subject to clause 12.3, the terms of this Agreement may be varied at
any time by the parties to this Agreement without the consent of the Third
Parties.
SEVERAL LIABILITY
12.18 Except where this Agreement provides otherwise, obligations,
covenants, warranties and undertakings expressed to be assumed or given
by two or more persons shall in each case be construed as if expressed to be
given severally only.
SUCCESSORS
12.19 This Agreement shall be binding on each party's personal
representatives and successors in title.
13. NOTICES
FORM OF NOTICE
13.1 Any notice, consent, request, demand, approval or other communication
to be given or made under or in connection with this Agreement (each a
"NOTICE" for the purposes of this clause) shall be in writing and signed by
or on behalf of the person giving it.
METHOD OF SERVICE
13.2 Service of a Notice must be effected by one of the following methods:
13.2.1 by hand to the relevant address set out in clause 13.4 and shall be
deemed served upon delivery if delivered during a Business Day, or at the start
of the next Business Day if delivered at any other time; or
13.2.2 by prepaid first-class post (or by airmail if from one country to
another) to the relevant address set out in clause 13.4 and shall be deemed
served at the start of the second (or if by airmail the fourth) Business Day
after the date of posting; or
13.2.3 by facsimile transmission to the relevant facsimile number set out in
clause 13.4 and shall be deemed served on despatch, if despatched during a
Business Day, or at the start of the next Business Day if despatched at any
other time, provided that in each case a receipt indicating complete
transmission of the Notice is obtained by the sender and that a copy of the
Notice is also despatched to the recipient using a method described in clauses
13.2.1 to 13.2.2 (inclusive) no later than the end of the next Business Day.
13.3 In clause 13.2 "DURING A BUSINESS DAY" means any time between 9.30 a.m.
and 5.30 p.m. on a Business Day based on the local time where the recipient of
the Notice is located. References to "THE START OF A BUSINESS DAY" and "THE END
OF A BUSINESS DAY" shall be construed accordingly.
ADDRESS FOR SERVICE
13.4 Notices shall be addressed as follows:
13.4.1 Notices for the Buyer shall be marked for the attention of the
Company Secretary at the address set out at the front of this Agreement.
Fax number: +44 20 7970 4519;
13.4.2 Notices for Graham Sherren and for the holders of A ordinary shares
in the Company shall be addressed to Graham Sherren at the address and fax
number set out in column 1 of Schedule 1.
13.4.3 Notices for Griffin Land shall be addressed to Michael Danziger at
the address and fax number set out in column 1 of Schedule 1; and
13.4.4 Notices for VS&A Communications shall be addressed to Jonathan
Drucker at the address and fax number set out in column 1 of
Schedule 1.
CHANGE OF DETAILS
13.5 A party may change its address for service provided that the new
address is within the United Kingdom and that it gives the other party not
less than 10 Business Days' prior notice in accordance with this clause 13.
Until the end of such notice period, service on either address
shall remain effective.
SERVICE OF PROCEEDINGS
13.6 The Overseas Sellers irrevocably authorise and appoint the
Sellers' Solicitors (or the firm which at the time in question has
succeeded to it and carries on its practice) as their agent for
service of notices and/or proceedings in relation to any matter arising out
of or in connection with this Agreement and service on such agent in
accordance with this clause 13 shall be deemed to be effective service
on all of the Overseas Sellers.
THIS AGREEMENT has been duly executed and delivered as a deed on the date
first stated above.
SCHEDULE 1
THE SELLERS
--------------------------------------------------------------------------------
(1) (2) (3)
NAME AND ADDRESS SHARES INITIAL CASH
IN THE COMPANY CONSIDERATION
(POUNDS)
--------------------------------------------------------------------------------
Shareholder 151,350 1,253,783.36
A Ordinary
--------------------------------------------------------------------------------
Shareholder 60,420 500,519.27
A Ordinary
--------------------------------------------------------------------------------
Shareholder 60,000 497,039.99
A Ordinary
--------------------------------------------------------------------------------
Shareholder 60,000 497,039.99
A Ordinary
--------------------------------------------------------------------------------
Shareholder 1,581,130 6,828,080.54
A Ordinary
--------------------------------------------------------------------------------
Shareholder 199,590 1,239,583.51
A Ordinary
--------------------------------------------------------------------------------
Shareholder 13,333 110,450.57
A Ordinary
--------------------------------------------------------------------------------
Shareholder 13,334 110,458.85
A Ordinary
--------------------------------------------------------------------------------
Shareholder 60,000 497,039.99
A Ordinary
--------------------------------------------------------------------------------
Shareholder 13,333 110,450.85
A Ordinary
--------------------------------------------------------------------------------
Shareholder 60,000 497,039.99
A Ordinary
--------------------------------------------------------------------------------
GRIFFIN LAND & NURSERIES INC. 5,428,194 38,697,157.70
One Rockefeller Plaza Suite 2301, B Ordinary
New York, NY 10020, USA
Fax Number: 001 212 218 7917
--------------------------------------------------------------------------------
Shareholder 5,457,169 45,207,186.68
C Ordinary
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(1) (4) (5) (6)
NAME AND ADDRESS RETENTION CONSIDERATION CONSIDERATION
(POUNDS) SHARES LOAN NOTES
(POUNDS)
--------------------------------------------------------------------------------
Shareholder 11,502.64 - -
--------------------------------------------------------------------------------
Shareholder 4,591.93 - -
--------------------------------------------------------------------------------
Shareholder 4,560.01 - -
--------------------------------------------------------------------------------
Shareholder 4,560.01 - -
--------------------------------------------------------------------------------
Shareholder 120,166.26 6,477,179 -
--------------------------------------------------------------------------------
Shareholder 15,168.89 428,271 -
--------------------------------------------------------------------------------
Shareholder 1,013.31 - -
--------------------------------------------------------------------------------
Shareholder 1,013.39 - -
--------------------------------------------------------------------------------
Shareholder 4,560.01 - -
--------------------------------------------------------------------------------
Shareholder 1,013.31 - -
--------------------------------------------------------------------------------
Shareholder 4,560.01 - -
--------------------------------------------------------------------------------
GRIFFIN LAND & NURSERIES INC. 412,544.05 6,477,179 -
One Rockefeller Plaza Suite 2301,
New York, NY 10020, USA
Fax Number: 001 212 218 7917
--------------------------------------------------------------------------------
Shareholder 414,746.16 - -
--------------------------------------------------------------------------------
SCHEDULE 2
PART I
THE COMPANY
INCORPORATED: 3 November 1981
REGISTERED IN ENGLAND UNDER NO.: 1595235
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 5,000,000.00 pounds
comprising 50,000,000 Ordinary
Shares of 10p each
ISSUED SHARE CAPITAL: 1,554,415.70 pounds
comprising 15,544,157 Ordinary
Shares of 10p
each held as follows:
2,272,490 A Ordinary Shares
5,428,194 B Ordinary Shares
5,457,169 C Ordinary Shares
2,386,304 D Ordinary Shares
DIRECTORS: Christopher Roger Ettrick Brooke
Edgar Meyer Cullman (Snr)
Frederick Michael Danziger
Basil Thomas Richard Scruby
Graham Veere Sherren
Marco Sodi
John Veronis
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: Rent Deposit Deed in favour of
the Mayor and Commonalty and
citizens of the City of London
created 21 January 2000
Debenture in favour of National
Westminster Bank Plc created 14
December 2001
NATURE OF BUSINESS: Publishing
Business activities
PART II
THE SUBSIDIARIES
NAME: Ascent Publishing Limited
INCORPORATED: 22 November 1990
REGISTERED IN ENGLAND UNDER NO.: 2561341
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 1,000.00 pounds
comprising 1,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 100.00 pounds
comprising 100 Ordinary Shares of
1 pound each all of which are held by
the Company
DIRECTORS: Robin Coates
Peter Andrew Harris
Derek Walter Rogers
Graham Veere Sherren
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: Debenture in favour of National
Westminster Bank Plc created 14
December 2001
NATURE OF BUSINESS: Creation and dissemination of business
and professional
information through publications.
NAME: Centaur Publishing Limited
INCORPORATED: 1 August 1991
REGISTERED IN ENGLAND UNDER NO.: 2634392
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 1,000.00 pounds
comprising 1,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 2.00 pounds
comprising 2 Ordinary Shares of 1
pound each both of which are held
by the Company
DIRECTORS: Morag Elizabeth Arman-Addey
Roger Beckett
Elizabeth Priscilla Child
Robin Coates
Declan John Patrick Gough
Mark Heineman
Michael John Lally
Rachel Mary Lesiter
Judith Mann-Selley
Ian Francis Davis Mortimer
Patrick Francis Ponsford
Timothy John Potter
John Whitfield Raw
Nigel Francis Roby
Howard Sharman
Graham Veere Sherren
Ann Marie Swift
Calum Barrie David Taylor
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: None
NATURE OF BUSINESS: Non-trading Company
NAME: Chiron Communications Limited
INCORPORATED: 14 November 1972
REGISTERED IN ENGLAND UNDER NO.: 1081808
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 50,000.00 pounds
comprising 50,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 40,000.00 pounds
comprising 40,000 Ordinary Shares of
1 pound each all of which are held by
the Company
DIRECTORS: Ian Paul Hartin Roberts
Graham Veere Sherren
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: Debenture in favour of National
Westminster Bank Plc created 14
December 2001
NATURE OF BUSINESS: Creation and dissemination of business
and professional information through
publications.
NAME: Compuvest Limited
INCORPORATED: 8 October 1991
REGISTERED IN ENGLAND UNDER NO.: 2652308
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 100,000.00 pounds
comprising 100,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 2.00 pounds
comprising 2 Ordinary Shares of 1
pound each, both of which are held by
Synsoft Group Limited
DIRECTORS: Philip John Blacker
Mitchell Brookes
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: None
NATURE OF BUSINESS: Non-trading company
NAME: Hali Publications Limited
INCORPORATED: 27 September 1978
REGISTERED IN ENGLAND UNDER NO.: 1391142
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 100,000.00 pounds
comprising 99,500 Ordinary Shares
of 1 pound each and 500 Preference
Shares of 1 pound each
ISSUED SHARE CAPITAL: 41,158.00 pounds
comprising 41,031 Ordinary Shares of
1 pound each, 28,531 of which are held
by the Company and 12,500 of which are
held by Chiron Communications Limited,
and 127 Preference Shares all of
which are held by the Company
DIRECTORS: Roger Beckett
Farzin Sebastian Ghandchi
Judith Mann-Selley
Daniel Leon Shaffer
Graham Veere Sherren
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: Debenture in favour of National
Westminster Bank Plc created 14
December 2001
NATURE OF BUSINESS: Publishing and distributing magazines
and books
NAME: I.F.A. Events Limited
INCORPORATED: 2 October 1992
REGISTERED IN ENGLAND UNDER NO.: 2752562
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 200.00 pounds
comprising 20,000 Ordinary Shares
of 1p each
ISSUED SHARE CAPITAL: 102.00 pounds
comprising 10,200 Ordinary Shares of
1p each all of which are held by the
Company
DIRECTORS: Nicholas Stuart Collard
Patrick Francis Ponsford
Timothy John Potter
Calum Barrie David Taylor
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: Grant Thornton
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: Debenture in favour of National
Westminster Bank Plc created 14
April 2003
NATURE OF BUSINESS: Organising exhibitions for the
financial services industry
NAME: Key Market Research Limited
INCORPORATED: 29 June 1992
REGISTERED IN ENGLAND UNDER NO.: 2726888
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 1,000.00 pounds
comprising 1,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 100.00 pounds
comprising 100 Ordinary Shares of 1
pound each all of which are held by
Process Communications Limited
DIRECTORS: Ian Paul Hartin Roberts
Graham Veere Sherren
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: None
NATURE OF BUSINESS: Non-trading company
NAME: Market Access Data Limited
INCORPORATED: 23 June 1994
REGISTERED IN ENGLAND UNDER NO.: 2941979
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 100,000.00 pounds
comprising 100,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 2.00 pounds
comprising 2 Ordinary Shares of 1
pound each both of which are held by
Synsoft Group Limited
DIRECTORS: Philip John Blacker
Mitchell Brookes
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: None
NATURE OF BUSINESS: Non-trading company
NAME: Market Research Exhibitions Limited
INCORPORATED: 30 October 1995
REGISTERED IN ENGLAND UNDER NO.: 03119804
REGISTERED OFFICE: 50 Poland Street, London, W1F 7AX
AUTHORISED SHARE CAPITAL: 1,000.00 pounds
comprising 1,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 2.00 pounds
comprising 2 Ordinary Shares of 1
pound each both of which are held by
the Company
DIRECTORS: Howard Sharman
Ann Marie Swift
Calum Barrie David Taylor
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: Jacob Cavenagh & Skeet
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: None
NATURE OF BUSINESS: Organising exhibitions
NAME: Marketing & Media Conferences
Limited
INCORPORATED: 11 October 1979
REGISTERED IN ENGLAND UNDER NO.: 1453499
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 1,000.00 pounds
comprising 1,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 1,000.00 pounds
comprising 1,000 Ordinary Shares of
1 pound each all of which are held by
Marketing Week Communications Limited
DIRECTORS: Ian Paul Hartin Roberts
Graham Veere Sherren
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: None
NATURE OF BUSINESS: Non-trading company
NAME: Marketing Week Communications Limited
INCORPORATED: 21 June 1977
REGISTERED IN ENGLAND UNDER NO.: 1318054
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 10,000.00 pounds
comprising 10,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 10,000.00 pounds
comprising 10,000 Ordinary Shares of
1 pound each 8,750 of which are held
by the Company and 1,250 of which
are held by MCP (Publishing) Limited
DIRECTORS: Ian Paul Hartin Roberts
Graham Veere Sherren
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: None
NATURE OF BUSINESS: Non-trading company
NAME: Marktab Plc
INCORPORATED: 20 September 1988
REGISTERED IN ENGLAND UNDER NO.: 2298302
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 100,000.00 pounds
comprising 100,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 50,000.00 pounds
comprising 50,000 Ordinary Shares
of 1 pound each 49,999 of which are
held by the Company and 1 of
which is held by John
Whitfield Raw
DIRECTORS: Ian Paul Hartin Roberts
Graham Veere Sherren
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: None
NATURE OF BUSINESS: Non-trading company
NAME: Mayfield Publishing Limited
INCORPORATED: 7 July 1986
REGISTERED IN ENGLAND UNDER NO.: 2034820
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 400,100.00 pounds
comprising 400,100 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 400,008.00 pounds
comprising 400,008 Ordinary Shares
of 1 pound each all of which are
held
by Chiron Communications Limited
DIRECTORS: Ian Paul Hartin Roberts
Graham Veere Sherren
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 28 February
CHARGES: None
NATURE OF BUSINESS: Non-trading company
NAME: MCP (Publishing) Limited
INCORPORATED: 6 December 1977
REGISTERED IN ENGLAND UNDER NO.: 1342489
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 1,100.00 pounds
comprising 1,000 1 per cent.
Non-Cumulative Deferred Shares of
1 pound each and 100
Ordinary Shares of 1 pound each
ISSUED SHARE CAPITAL: 1,100.00 pounds
comprising 1,000 1 per cent.
Non-Cumulative Deferred Shares of
1 pound each and 100 Ordinary Shares
of 1 pound each all of which are
held by the Company
DIRECTORS: Ian Paul Hartin Roberts
Graham Veere Sherren
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: None
NATURE OF BUSINESS: Non-trading company
NAME: Media Magazines Limited
INCORPORATED: 24 March 1982
REGISTERED IN ENGLAND UNDER NO.: 1624412
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 20,000.00 pounds
comprising 20,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 20,000.00 pounds
comprising 20,000 Ordinary Shares of
1 pound each all of which are held by
the Company
DIRECTORS: Ian Paul Hartin Roberts
Graham Veere Sherren
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: None
NATURE OF BUSINESS: Non-trading company
NAME: Moorgate Nominees Limited
INCORPORATED: 1 October 1928
REGISTERED IN ENGLAND UNDER NO.: 233730
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 100.00 pounds
comprising 100 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 100.00 pounds
comprising 100 Ordinary Shares of
1 pound each all of which are held
by Perfect Information Limited
DIRECTORS: Nicholas Spencer Benyon
Gregory Peter Simidian
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 31 December
CHARGES: None
NATURE OF BUSINESS: Non-trading company
NAME: Oguz Press Limited
INCORPORATED: 12 May 1988
REGISTERED IN ENGLAND UNDER NO.: 2257130
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 1,000.00 pounds
comprising 1,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 2.00 pounds
comprising 2 Ordinary Shares of
1 pound each both of which are held
by the Company
DIRECTORS: Ian Paul Hartin Roberts
Graham Veere Sherren
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: None
NATURE OF BUSINESS: Non-trading company
NAME: Perfect Information Inc.
INCORPORATED: 30 March 2001
EMPLOYER IDENTIFICATION NUMBER: 13-418763
REGISTERED OFFICE: 2711 Centerville Road, Suite 400,
City of Wilmington, County of New
Castle, State of Delaware
SHARES: 1,000 common stock of $.01 each
DIRECTORS: J Scott-Barrett
NS Benyon
GP Simidian
SECRETARY: NS Benyon
AUDITORS: Not applicable
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: None
NATURE OF BUSINESS: Software publishing
Other business activities
NAME: Perfect Information Limited
INCORPORATED: 23 October 1992
REGISTERED IN ENGLAND UNDER NO.: 2758652
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 60,000.00 pounds
comprising 6,000,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 43,499.00 pounds
comprising 4,349,900 Ordinary Shares
of
1p each 4,312,259 of which are held
by the Company, 37,266 of which are
held by Yelbric Limited and 375 of
which are held by Lee Hemmings
DIRECTORS: Nicholas Spencer Benyon
James Coleman
Anthony John Gibbs McLaren
Ian Francis Davis Mortimer
John Whitfield Raw
Basil Thomas Richard Scruby
Graham Veere Sherren
Gregory Peter Simidian
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: Debenture in favour of National
Westminster Bank Plc created 14
April 2003
NATURE OF BUSINESS: Software publishing
Other business activities
NAME: Process Communications Limited
INCORPORATED: 18 November 1985
REGISTERED IN ENGLAND UNDER NO.: 1960311
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 150,000.00 pounds
comprising 150,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 146,950.00 pounds
comprising 146,950 Ordinary Shares
of 1 pound each all of which are
held by the Company
DIRECTORS: Ian Paul Hartin Roberts
Graham Veere Sherren
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 28 February
CHARGES: None
NATURE OF BUSINESS: Non-trading company
NAME: Spicers Centre For Europe Limited
INCORPORATED: 23 November 1994
REGISTERED IN ENGLAND UNDER NO.: 2993620
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 100.00 pounds
comprising 100 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 2.00 pounds
comprising 2 Ordinary Shares of
1 pound each both of which are held
by the Company
DIRECTORS: Ian Paul Hartin Roberts
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: None
NATURE OF BUSINESS: Non-trading company
NAME: Sporting Events Publishers Limited
INCORPORATED: 17 February 1993
REGISTERED IN ENGLAND UNDER NO.: 2790989
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 100.00 pounds
comprising 100 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 100.00 pounds
comprising 100 Ordinary Shares of
1 pound each all of which are held
by the Company
DIRECTORS: Ian Paul Hartin Roberts
Graham Veere Sherren
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: None
NATURE OF BUSINESS: Non-trading company
NAME: Synergy Real Time Systems Limited
INCORPORATED: 8 October 1991
REGISTERED IN ENGLAND UNDER NO.: 2652315
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 100,000.00 pounds
comprising 10,000,000 Ordinary Shares
of 1p each
ISSUED SHARE CAPITAL: 1,000.00 pounds
comprising 100,000 Ordinary Shares
of 1p each all of which are held by
Synergy Software Solutions Limited
DIRECTORS: Philip John Blacker
Mitchell Brookes
Gregory Peter Simidian
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: Guarantee and debenture in favour of
Barclays Bank Plc created 17
October 2001
NATURE OF BUSINESS: Other software consultancy
NAME: Synergy Software Limited
INCORPORATED: 30 January 1987
REGISTERED IN ENGLAND UNDER NO.: 2095108
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 10,000.00 pounds
comprising 10,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 5,100.00 pounds
comprising 5,100 Ordinary Shares
of 1 pound each 5,099 of which are
held by Synsoft Group Limited and
1 of which is held by Philip
John Blacker
DIRECTORS: Philip John Blacker
Mitchell Brookes
Gregory Peter Simidian
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: Guarantee and debenture in favour of
Barclays Bank Plc created 17
October 2001
NATURE OF BUSINESS: Other software consultancy
NAME: Synergy Software Solutions
(Asia) Limited
INCORPORATED: 18 August 2000
REGISTERED NUMBER: 728013 in Hong Kong
REGISTERED OFFICE: 39th Floor, One Pacific Place,
Admiralty, Hong Kong
AUTHORISED SHARE CAPITAL: HK$1,000,000
comprising 1,000,000 shares
of $1 each
ISSUED SHARE CAPITAL: HK$10,000
comprising 10,000 shares of 1
pound each 9,990 of which are owned
by Synergy Software Solutions
Limited and 10 of which are owned by
Synsoft Group Limited
DIRECTORS: Philip John Blacker
Mitchell Brookes
SECRETARY: Champion Secretarial Services Limited
- Hong Kong
AUDITORS: Not applicable
ACCOUNTING REFERENCE DATE: 30 April
CHARGES: None
NATURE OF BUSINESS: Other Software Consultancy
NAME: Synergy Software Solutions Limited
INCORPORATED: 8 October 1991
REGISTERED IN ENGLAND UNDER NO.: 02652312
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 100,000.00 pounds
comprising 10,000,000 Ordinary
Shares of 1p each
ISSUED SHARE CAPITAL: 1,394.30 pounds
comprising 139,430 Ordinary
Shares of 1p each
DIRECTORS: Philip John Blacker
Mitchell Brookes
Gregory Peter Simidian
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 April
CHARGES: Debenture in favour of Barclays
Bank Plc created 21 January 1999
Guarantee and debenture in favour
of Barclays Bank Plc created
17 October 2001
NATURE OF BUSINESS: Other software consultancy
NAME: Synsoft Group Limited
INCORPORATED: 9 October 1991
REGISTERED IN ENGLAND UNDER NO.: 2652471
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 100,000.00 pounds
comprising 10,000,000 Ordinary
Shares of 1p each
ISSUED SHARE CAPITAL: 5,102.00
comprising 510,200 Ordinary Shares
of 1p each all of which are held by
Synergy Software Solutions Limited
DIRECTORS: Philip John Blacker
Mitchell Brookes
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 April
CHARGES: None
NATURE OF BUSINESS: Holding companies including head
offices
NAME: Yelbric Limited
INCORPORATED: 29 January 1991
REGISTERED IN ENGLAND UNDER NO.: 2577918
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 10,000.00 pounds
comprising 10,000 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 10,000.00 pounds
comprising 10,000 Ordinary Shares of
1 pound each all of which are held by
the Company
DIRECTORS: Ian Paul Hartin Roberts
Graham Veere Sherren
Geoffrey Tristan Wilmot Descarriers
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 30 June
CHARGES: None
NATURE OF BUSINESS: Non-trading company
NAME: Your Business Magazine Limited
INCORPORATED: 17 March 1983
REGISTERED IN ENGLAND UNDER NO.: 1707331
REGISTERED OFFICE: St Giles House, 50 Poland Street,
London, W1F 7AX
AUTHORISED SHARE CAPITAL: 100.00 pounds
comprising 100 Ordinary Shares
of 1 pound each
ISSUED SHARE CAPITAL: 100.00 pounds
comprising 100 Ordinary Shares of
1 pound each all of which are held by
the Company
DIRECTORS: Ian Paul Hartin Roberts
Graham Veere Sherren
Geoffrey Tristan Descarriers Wilmot
SECRETARY: Ian Paul Hartin Roberts
AUDITORS: PricewaterhouseCoopers LLP
ACCOUNTING REFERENCE DATE: 28 February
CHARGES: Debenture in favour of National
Westminster Bank Plc created 14
December 2001
NATURE OF BUSINESS: Publish journals and periodicals
Other business activities
SCHEDULE 3
ESCROW COMPLETION OBLIGATIONS
PART I
OBLIGATIONS OF THE SELLERS
1. DELIVERY OBLIGATIONS
Each Seller shall deliver to the Buyer's Solicitors in his own capacity:
SHARE TRANSFERS, STATUTORY BOOKS ETC.
1.1 undated executed transfers of his Shares in favour of the Buyer, the
share certificates and any additional documentation necessary to establish the
title to his Shares and to allow the transferee(s) (subject to due stamping) to
be registered in the register of members of the Company as holder(s) of his
Shares or a letter of indemnity in terms acceptable to the Buyer in respect of
any missing share certificates;
1.2 a certified copy of any power of attorney under which this Agreement or
any of the transfers or other documents referred to in this Schedule is executed
and evidence (to the Buyer's satisfaction) of the authority of any person
signing on behalf of a corporate entity;
1.3 undated powers of attorney in the approved terms in respect of the
rights attaching to the Shares executed by each registered holder of the Shares;
Each Key Seller shall procure the delivery as agent for the Company:
1.4 the certificate of incorporation and all certificates of incorporation
on change of name, the common seal (where available), the statutory books and
other record books including books held in electronic form of each Target Group
Company written up to Completion;
1.5 the certificates in respect of all issued shares in the Subsidiaries or
appropriate letters of indemnity in respect of any missing share certificates;
and
1.6 undated executed transfers of any shares in the Subsidiaries held by any
nominee shareholder on behalf of the Company or any other Target Group Company.
BOARD RESOLUTIONS
1.7 a certified copy of board resolutions, in the approved terms, of the
Company which approve, conditional on Completion the registration (subject,
where necessary, to due stamping) the transfers in respect of the Shares.
BANKING ARRANGEMENTS
1.8 letters from National Westminster Bank Plc and Barclays Bank Plc (in
respect of Synergy Software Solutions Limited and certain of its subsidiaries)
in the approved terms confirming that the floating charge(s) granted to it by
the Company/and any Target Group Company have not crystallised, that it is aware
of no circumstances which would lead it to take any steps to make that charge
crystallise between the date of the letter and the Completion Date and that it
consents to the sale of the Shares to the Buyer;
1.9 statements of balances at a date not more than seven days prior to the
Escrow Completion Date with reconciliations to the Business Day preceding the
Escrow Completion Date on all bank accounts of each Target Group Company and all
current cheque books relating to such accounts;
1.10 bank mandates in respect of the opening of the Retention Account;
OTHER DOCUMENTS IN THE APPROVED TERMS ETC.
1.11 the title deeds and all ancillary documents relating to the Properties
(except to the extent the same are in the possession of mortgagees pursuant to
mortgages disclosed in the Disclosure Letter);
MISCELLANEOUS
1.12 complete and up-to-date copies of any confidentiality undertakings in
favour of the Sellers from prospective purchasers of the Shares (to the extent
that it is lawful, under the terms of such undertakings, for copies to be
provided to the Buyer); and
1.13 letters of resignation as directors of the Company in the approved
terms signed by each of Christopher Brooke, Edgar Cullman, Frederick Michael
Danziger, Marco Sodi and John Veronis;
2. TAX DEED
The Warrantors shall deliver to the Buyer's Solicitors the undated Tax Deed
executed by each of the Warrantors.
3. SERVICE AGREEMENTS
Graham Sherren shall deliver to the Buyer's Solicitors an undated engrossment of
his service agreement with the Buyer in the approved terms duly executed by him.
4. UNDERTAKING
The Sellers' Solicitors shall deliver to the Buyer's Solicitors an undertaking
in the approved terms providing that on receipt of such funds from the Buyer
they will instruct their bankers to pay the consideration monies in respect of
the D Offer to the holders of D Shares accepting the D Offer less any agreed
deduction provided for in the Form of Acceptance to the D Offer Document.
PART II
OBLIGATIONS OF THE BUYER
The Buyer shall deliver to the Sellers' Solicitors:
1. an undated counterpart of the Tax Deed executed by the Buyer;
2. a certified copy of a board resolution of the Buyer approving,
conditional on Completion, the execution and performance by the Buyer of its
obligations under this Agreement and each of the documents to be executed by the
Buyer pursuant to this Agreement including, inter alia, constituting the
Consideration Loan Notes, and the issue of the Consideration Shares and the
Consideration Loan Notes;
3. undated share and loan note certificates in respect of the Consideration
Shares and Consideration Loan Notes to be issued to the Sellers in the amounts
set out opposite their respective names in columns 4 and 5 of Schedule 1;
4. bank mandates in respect of the opening of the Retention Account; and
5. an undated engrossment of the service agreement in the approved terms for
Graham Sherren duly executed by or on behalf of the Buyer.
SCHEDULE 4
CASH BALANCES
PART I
PREPARATION OF THE CASH BALANCES STATEMENT
1. GENERAL REQUIREMENTS
The provisions of this Part I and Part II of Schedule 4 shall apply for the
purposes of preparing the Cash Balances Statement.
The Cash Balances Statement shall:
1.1 be prepared in accordance with the specific accounting policies and
principles set out in Part II of this Schedule 4, so that, in the case of any
conflict, such policies and principles shall override the provisions of
paragraphs 1.2 and 1.3 below;
1.2 subject to paragraph 1.1 above, be prepared in accordance with the
relevant accounting policies, principles, practices and procedures adopted by
the Target Group in the preparation of the Accounts which include the policies
set out in Part II of this Schedule 4, so that, in the case of any conflict,
such policies, principles, practices and procedures shall override the
provisions of paragraph 1.3 below; and
1.3 where none of the accounting policies, principles, practices or
procedures referred to in paragraphs 1.1 and 1.2 deal with the matter, be
prepared or determined in accordance with generally accepted accounting practice
in the UK as at the Completion Date.
PART II
BASIS OF PREPARATION OF CASH BALANCES STATEMENT
1 WORKING CAPITAL
The Cash Balances shall be reduced by the extent of any shortfall in working
capital compared to the target at 1 March 2004.
The target for net working capital at 1 March 2004 is as follows:
Pounds'000
Stocks. . . . . . . . . . . . . 2,100
Trade debtors . . . . . . . . . 7,100
Other debtors . . . . . . . . . 300
Prepayments and accrued income. 1,700
Trade creditors . . . . . . . . (2,200)
Social security and other taxes (2,412)
Other creditors . . . . . . . . (440)
Accruals and deferred income. . (12,200)
--------
(6,052)
--------
By way of example, if the actual net working capital at 1 March 2004 is
negative 6,500,000 pounds, the Cash Balance will be reduced by 448,000 pounds
(6,500,000 pounds-6,052,000 pounds).
2 CAPITAL EXPENDITURE
The Cash Balance shall be reduced for any shortfall of capital expenditure
compared to target at 1 March 2004.
The target for capital expenditure at 1 March 2004 is represented by actual
capital expenditure for the six months ended plus the budgeted capital
expenditure for the two months ended 29 February 2004 of 1,614,000
pounds.
By way of example, if actual capital expenditure at 1 March 2004 is
1,500,000, pounds the cash balance will be reduced by 114,000 pounds
(1,614,000 pounds-1,500,000 pounds).
3 INTEREST RECEIVED AND PAID
Interest received will be credited and interest payable will be debited on
the normal due dates.
4 TAXATION
Corporation tax shall be paid on the normal due dates. Any corporation tax, VAT
or PAYE/NI refunds received since 31 January 2004 shall be excluded from the
Cash Balance.
5 DIVIDENDS
Dividends will be paid to minority interests on the normal due dates.
6 ACQUISITIONS AND DISPOSALS
Actual, deferred or contingent consideration received in respect of the
disposal of businesses or subsidiaries shall be excluded from the Cash Balance.
Payment of any deferred or contingent consideration in respect the
acquisition of a business or company is to be made on the normal due date and
does not need to be provided for or accrued ahead of the normal due date.
7. EMPLOYERS NATIONAL INSURANCE
Employers National Insurance arising upon the exercise of D Options shall be
deemed to be payable upon 1 March 2003.
For the purposes of determining the amount of Employers National Insurance to be
deducted from the Cash Balances it is agreed that the relevant options in
respect of which such National Insurance shall arise are as follows:
NAME DATE OF GRANT NUMBER OF D SHARES IN RESPECT
OF WHICH OPTION IS TO BE EXERCISED
---- ------------- ----------------------------------
Option Holder 30/09/02 30,000
------------- ------------- ----------------------------------
Option Holder 30/09/02 21,400
------------- ------------- ----------------------------------
Option Holder 30/09/02 22,800
------------- ------------- ----------------------------------
Option Holder 30/09/02 20,000
------------- ------------- ----------------------------------
Option Holder 30/09/02 10,000
------------- ------------- ----------------------------------
Option Holder 30/09/02 12,000
------------- ------------- ----------------------------------
Option Holder 30/09/02 12,000
------------- ------------- ----------------------------------
NAME EXERCISE PRICE (PER SHARE)
--------------------------
Option Holder . . . . 5 pounds
--------------------- --------------------------
Option Holder . . . . 5 pounds
--------------------- --------------------------
Option Holder . . . . 5 pounds
--------------------- --------------------------
Option Holder . . . . 5 pounds
--------------------- --------------------------
Option Holder . . . . 5 pounds
--------------------- --------------------------
Option Holder . . . . 5 pounds
--------------------- --------------------------
Option Holder . . . . 5 pounds
--------------------- --------------------------
SCHEDULE 5
WARRANTIES
I. . Disclosed information
---- -------------------------
II . Constitution
III. Accounts
IV . Assets
V. . Liabilities
VI . Trading arrangements
VII. Effect of sale
VIII Compliance and litigation
IX . Insolvency
X. . Intellectual property
XI . IT systems
XII. Competition law matters
XIII Officers and employees
XIV. Pensions
XV . Property and Environment
XVI. Tax
------
PART I
DISCLOSED INFORMATION
1. SCHEDULES
The facts stated in Schedules 1, 2 and 7 are correct.
PART II
CONSTITUTION
1. MEMORANDUM AND ARTICLES OF ASSOCIATION
The copy of the memorandum and articles of association of the Company
annexed to the Disclosure Letter is true and complete and has embodied in it or
annexed to it a copy of every such resolution or agreement as is referred to in
section 380 of the Act and sets out in full the rights and restrictions
attaching to the share capital of the Company.
2. REGISTER OF MEMBERS
The register of members of the Company has been properly kept and contains
true and complete records of the members of the Company and, so far as the
Warrantors are aware, the Company has not received any notice or allegation that
the register is incorrect or incomplete or should be rectified.
3. STATUTORY BOOKS
The statutory books and minute books of the Company are up to date in all
material respects, in its possession and are true and complete in accordance
with the law and, so far as the Warrantors are aware, the Company has not
received any notice or allegation that any of them is incorrect or incomplete or
should be rectified.
4. COMPLIANCE
Due compliance has been made in all material respects with all the
provisions of the Act in connection with:
4.1 the formation of the Company;
4.2 any allotment, issue, purchase or redemption of shares, debentures or
other securities in the Company;
4.3 any reduction of the authorised or issued share capital of the Company;
4.4 any amendment to the memorandum or articles of association of the
Company;
4.5 the passing of any resolutions by the Company; and
4.6 the payment of any dividends by the Company.
5. INTRA VIRES
So far as the Warrantors are aware the Company has not entered into any ultra
vires transaction or outside the authority or powers of the directors of the
Company and is not in breach of the provisions of its memorandum or articles of
association.
6. SUBSIDIARIES
6.1 The shares of each Subsidiary are held free from all Security Interests
or claims made by or which could be made by, any other person and are held with
all rights now or hereafter attaching to them and such shares are fully paid and
have been properly and validly allotted.
6.2 The Subsidiaries are the only current subsidiary undertakings of the
Company. With the exception of the Subsidiaries, the Company does not own any
shares or debentures in the capital of, nor does it have any beneficial interest
in, any other company or business organisation nor does the Company control or
take part in the management of any other company or business organisation.
6.3 The entire issued share capital of each Subsidiary is legally and
beneficially owned by the Company or another Target Group Company.
7. POWERS OF ATTORNEY
The Company has not given a power of attorney and no person has any
authority (express, implied or ostensible) which is still outstanding or
effective to enter into any contract or commitment or to do anything on its
behalf (other than any authority to its directors, officers and employees to
enter into routine trading contracts in the normal course of their duties).
8. SHARES
8.1 The Shares represent the entire allotted and issued A ordinary shares, B
ordinary shares and C ordinary shares in the share capital of the Company.
8.2 Other than as disclosed in the Disclosure Letter, there is no agreement,
arrangement or obligation requiring the creation, allotment, issue, sale,
transfer, redemption or repayment of, or grant to a person of the right
(conditional or not) to require the allotment, issue, sale, transfer, redemption
or repayment of, any share in the capital of the Company or any other Target
Group Company (including an option or right of pre-emption or conversion).
PART III
ACCOUNTS
1. GENERAL
1.1 The Accounts and the Interim Accounts are complete and accurate in all
material respects and the Accounts and (so far as the Warrantors are aware, the
Interim Accounts) show a true and fair view of the:
1.1.1 assets and liabilities (whether present, actual or contingent) and of
the state of affairs and the financial position as at the Accounts Date and the
Interim Accounts Date respectively; and
1.1.2 profits/losses for the financial period ended on the Accounts Date and
the Interim Accounts Date respectively,
of the Company (or of the Target Group to the extent that they are
consolidated accounts).
1.2 The Accounts and the Interim Accounts have been prepared and (in the
case of the Accounts) audited in accordance with auditing standards issued by
the Auditing Practices Board consistently applied and comply with the
requirements of the Act and all relevant accounting standards and statements of
standard accounting practice.
1.3 The bases and policies of accounting adopted for the purpose of
preparing the Accounts are the same as those adopted for the purpose of
preparing the audited accounts of the Company for the three preceding accounting
periods and no audited accounts of the Company for the five preceding accounting
periods have been qualified by the auditors.
1.4 The Interim Accounts have been prepared with due care and attention, on
bases consistent with those adopted in the preparation of the Accounts.
2. PROVISION OR RESERVE
Appropriate provision, reserve, disclosure or note (as appropriate in
accordance with generally accepted United Kingdom accounting conventions,
policies and principles) has been made in the Accounts and the Interim Accounts
for all bad and doubtful debts, all liabilities and obligations (actual,
contingent or disputed) and all capital commitments of the Company of a material
nature.
3. OFF BALANCE SHEET FINANCING
The Company is not engaged in any financing (including the incurring of any
borrowing or any indebtedness in the nature of acceptances or acceptance
credits) of a type which is not disclosed in the Interim Accounts.
4. ACCOUNTING RECORDS
All books of account and other records of the Company have been kept on a
consistent basis, are in its possession, are up to date in all material respects
and contain the information required by any relevant law in the United Kingdom.
5. MANAGEMENT ACCOUNTS
The Management Accounts have been prepared with due care and attention, on
bases consistent with those adopted in the preparation of previous management
accounts of the Company for the six months ended 31 December 2003, and show with
reasonable accuracy the:
5.1 assets and liabilities (whether present, actual or contingent) and the
state of affairs and financial position as at the date to which they have been
prepared; and
5.2 profits/losses for the period in respect of which they have been
prepared
of the Company (or of the Target Group to the extent that they are
consolidated accounts).
6. BUSINESS SINCE THE INTERIM ACCOUNTS DATE
Since the Interim Accounts Date:
6.1 there has been no material adverse change in the financial or trading
position of the Company and no fact, matter, event or circumstance has occurred
which, so far as the Warrantors are aware, is likely to give rise to any such
change;
6.2 the Company has carried on its business in the ordinary and usual course
and without any material interruption or material alteration in its nature,
scope or manner and no distribution of capital or income has been declared, made
or paid by the Company; and
6.3 there have been no material increases or decreases in the levels of
debtors or creditors or in the average collection or payment periods for debtors
and creditors respectively other than normal fluctuations in the ordinary course
of business.
PART IV
ASSETS
1. OWNERSHIP
1.1 Except for trading stock acquired by the Company subject to retention or
reservation of title by the supplier or manufacturer of such trading stock no
Security Interest is outstanding over the whole or any part of the undertaking,
property or assets of the Company.
1.2 None of the Key Sellers or any of their connected persons or Affiliates
has any interest in any rights (other than rights as a shareholder in the
Company) relating to the business or the assets of the Company.
2. POSSESSION
2.1 Except for trading stock sold by the Company in the ordinary course all
of the material assets owned by the Company or in respect of which the Company
has a right of use are in the possession or under the control of the Company.
2.2 Where any material assets are used but not owned by the Company or any
facilities or services are provided to the Company by a third party, no event of
default has occurred or is subsisting or has been alleged.
3. ADEQUACY
In the reasonable opinion of the Warrantors, the assets legally and beneficially
owned by the Target Group and the facilities and services to which the Target
Group has a contractual right include all rights, properties, assets, facilities
and services reasonably necessary for the carrying on of the businesses of the
Target Group in the manner in which they are currently carried on.
4. DEBTS
In the past two years the Company has not factored, sold or discounted any of
its debts or agreed to do so.
5. INSURANCE
5.1 A list of every current insurance policy in respect of which the Company
has any continuing interest (whether or not arranged by the Company or any
Seller or any of their connected persons) is annexed to the Disclosure Letter.
5.2 In respect of all insurances of the Target Group:
5.2.1 all premiums have been duly paid;
5.2.2 so far as the Warrantors are aware, all the policies are in force and
are not voidable; and
5.2.3 no claim in excess of 10,000 pounds is outstanding and, so far
as the Warrantors are aware, no circumstances exist which may give rise to any
claim or to any increase in premiums (other than as a result of a
generally imposed premium increase).
PART V
LIABILITIES
1. BORROWINGS
The total amount borrowed by the Company from whatsoever source does not
exceed any limitation on its borrowings contained in its articles of association
or in any debenture or loan stock deed or any other instrument or agreement to
which the Company is a party.
2. FACILITIES
Details of all overdrafts, loans or other financial facilities outstanding
or available to the Company are contained in the Disclosure Letter and nothing
has been done or omitted to be done whereby the continuance of any such
facilities in full force and effect might be affected or prejudiced. So far as
the Warrantors are aware, the undrawn amounts under any facilities are available
for drawing as and when required.
3. BANK ACCOUNTS
A statement of all the Company's bank accounts and of the credit or debit
balances on such accounts as at a date not more than seven days before the date
of this Agreement is annexed to the Disclosure Letter.
4. GUARANTEES AND INDEMNITIES
There is not outstanding any guarantee or indemnity, security, bond, letter
of comfort or other similar legally binding obligation given by or for the
benefit of the Company.
5. EVENTS OF DEFAULT
So far as the Warrantors are aware, no event has occurred or is subsisting
or has been alleged which:
5.1 constitutes an event of default, or otherwise gives rise to an
obligation to repay, or to give security under any agreement relating to
borrowing or indebtedness in the nature of borrowing (or, so far as the
Warrantors are aware, will do so with the giving of notice or lapse of time or
both); or
5.2 will lead to any security for any borrowing or indebtedness in the
nature of borrowing or any guarantee or indemnity of the Company becoming
enforceable (or, so far as the Warrantors are aware, will do so with the giving
of notice or lapse of time or both).
6. GRANTS
During the period of six years ending on the date of this Agreement the Company
has not received any investment grant, employment subsidy or other similar
payment and, so far as the Warrantors are aware, no such grant, subsidy or
payment paid to the Company is liable to be refunded (in whole or in part) in
consequence of anything which the Company has done or omitted to do.
7. SUCCESS FEES
The Company is not liable to pay, in connection with the sale of any of the
Shares or otherwise in connection with this Agreement:
7.1 any success or other fee, brokerage or commission; or
7.2 any sum whatsoever to any of its directors, employees, agents or
advisers (past or present).
8. INDEBTEDNESS
No Indebtedness is outstanding.
PART VI
TRADING ARRANGEMENTS
1. SUPPLIERS/CUSTOMERS
1.1 In each of the last two financial years of the Company and during the
current financial year (on an annualised basis) of the Company, no more than 5%
of the aggregate amount of purchases made by or on behalf of the Company has
been or will be obtained from the same supplier (including any person connected
with such supplier).
1.2 In each of the last two financial years of the Company and during the
current financial year (on an annualised basis) of the Company, no more than 5%
of the aggregate amount of all the sales of any Product by any business division
of the Company has been or will be made to the same Customer (including any
person connected with such Customer).
1.3 In each of the last two financial years of the Company and during the
current financial year (on an annualised basis) of the Company, no more than 5%
of the aggregate amount of all the advertising sales (whether display,
classified or recruitment) of any business division of the Company has been or
will be made to the same Customer (including any person connected with such
Customer).
1.4 No material Customer of, or supplier to any business division of the
Company has, during the last 12 months, ceased or notified the Company of its
intention to cease (or materially to reduce the volume of) trading with the
Company or, in the case of a supplier, to increase prices materially.
2. CONTRACTS
2.1 So far as the Warrantors are aware, copies of all material Contracts
have been disclosed including any legally binding agreement or arrangement
which:
2.1.1 is in the nature of a partnership, joint venture or consortium
agreement or any legally binding agreement for sharing commissions or other
income;
2.1.2 is liable to be terminated by another party, or under which rights of
any person are liable to arise or be adversely affected in any material respect
in the context of the relevant agreement as a result of any change in the
control, management or shareholders of the Company;
2.1.3 is an agreement over 12 months in duration or is incapable of
termination in accordance with its terms by the Company on 90 days' notice or
less;
2.1.4 is of a loss-making nature (that is to say, now known to be likely to
result in a material loss to the relevant business division of the Company on
completion of performance);
2.1.5 limits or excludes the right of the Company to do business and/or to
compete in any area or in any field or with any person;
2.1.6 is entered into otherwise than (a) on an arm's-length basis or (b) in
the ordinary course of its trading;
2.1.7 cannot readily be fulfilled or performed by the Company in
accordance with its terms without undue or unusual expenditure;
2.1.8 involves, or is likely to involve, an aggregate outstanding or
potential expenditure by the Company (other than costs and expenses incurred by
the Company in the ordinary course of business) of more than 50,000 pounds or
where any obligations and/or liabilities of any third party are
guaranteed, indemnified or may otherwise fall to be performed by the
Company;
2.1.9 is an agreement to which any of the Sellers are a party or in which
any of the Sellers (or any director of such company) (or any person connected
with any of them) are interested or from which any such person takes benefit
(directly or indirectly) or is an agreement to which any of the provisions of
sections 320, 322 or 330 of the Act may apply;
2.1.10 establishes any material agency, distributorship, marketing,
purchasing or licensing agreement or arrangement to which the Company is a
party; or
2.1.11 is an agreement pursuant to which (a) independent contractors have
been engaged to provide services to or on behalf of the Company or (b) under
which any obligation of the Company has been sub-contracted to any person, where
obligations remain or will remain to be performed as at the date of this
Agreement or have been performed within the last 12 months.
3. VALIDITY AND PERFORMANCE OF CONTRACTS
3.1 In relation to each of the Contracts, so far as the Warrantors are aware
3.1.1 no party has given notice to terminate it nor has sought to repudiate
or disclaim it nor, intends to do so nor has any party sought to suspend its
performance (for whatever reason); and
3.1.2 no party is in material breach of it nor is there any material delay
in its implementation and there are no facts or circumstances which are likely
to give rise to any of the above.
4. TENDER OFFERS
No bid, tender, proposal, option or offer given or made by the Company on
or before the date of this Agreement is capable of giving rise to a material
agreement or arrangement of the kind described in paragraph 2.1 merely by a
unilateral act of another person.
5. STANDARD TERMS
Copies of the current standard terms and conditions of business used by the
Company have been disclosed to the Buyer. The Company has not at any time in
the two years prior to the date of this Agreement entered into any material
agreement or arrangement on terms and conditions which are materially
inconsistent with the standard terms and conditions referred to in this
paragraph.
6. RECORDS
All databases used in the Business are recorded, stored, maintained and
operated or otherwise held by the Company and the use of or access to such
databases is not wholly or partly dependent (a) on any facilities which are not
under the exclusive ownership or control of the Company nor (b) on the special
knowledge or memory of any one or more individuals.
7. PREFERENTIAL TERMS
The Disclosure Letter contains details of all material discounts, over-riders,
rebates, allowances and other preferential terms of any nature available to the
Company from its suppliers or offered by the Company to any of its Customers.
8. DATA PROTECTION
8.1 The Company is in compliance with the provisions of the Data Protection
Act 1998 and the Company has not been notified of any failure to comply with any
equivalent legislation in any other jurisdiction to which the Company is
subject.
8.2 The Company has taken all steps necessary to obtain all consents
required to enable it to continue to use its marketing databases following the
date of this Agreement in substantially the same way as it used such databases
in the period of 6 months prior to such date in particular in compliance with
the Privacy and Electronic Communications (EC Directive) Regulations 2003.
9. CONFIDENTIAL INFORMATION
Where information of a confidential nature has been developed or acquired by the
Company for the purposes of the Business in the five year period prior to the
date of this Agreement, so far as the Warrantors are aware, such information
(except in so far as it has fallen into the public domain through no fault of
the Company) has been kept confidential and has not been disclosed otherwise
than subject to an obligation of confidentiality being imposed on the person to
whom the information was disclosed together with an obligation not to use the
information other than for the purpose for which it was disclosed. The
Warrantors are not aware of any breach of such confidentiality obligations by
any third party.
PART VII
EFFECT OF SALE
So far as the Warrantors are aware (but without the Warrantors making enquiry of
any third party), neither the execution nor the completion or performance of
this Agreement or of any document to be executed pursuant to it will:
1. result in the Company losing the benefit of any material asset, licence,
grant, subsidy, right or privilege which it enjoys or result in the Company
incurring any liability to any person which would not otherwise have arisen;
2. conflict with, or result in a breach of, or give rise to an event of
default under, or require the consent of a person under, or enable a person to
terminate, or relieve a person from an obligation under, any material agreement,
legally binding arrangement or obligation to which the Company is a party or any
legal or administrative requirement in any jurisdiction;
3. result in any customer or supplier being entitled to cease dealing with
the Company or substantially to reduce its existing level of business or
materially to change the terms on which it deals with the Company;
4. result in any senior employee (being an employee with a basic salary of
50,000 pounds or more per annum) being entitled to resign from employment with
the Company with any form of compensation in respect of such resignation,
and/or without giving the Company at least one month's prior written notice
of such resignation; or
5. make the Company liable to offer for sale, transfer or otherwise dispose
of or purchase or otherwise acquire any assets, including shares held by it in
other bodies corporate under their articles of association or any legally
binding arrangement.
PART VIII
COMPLIANCE AND LITIGATION
1. COMPLIANCE WITH LAWS
So far as the Warrantors are aware the Company has, and its officers and
employees (past and present) in the course of their respective duties have,
complied in all material respects with all applicable laws and regulations of
the United Kingdom, the European Community or any foreign jurisdiction in which
the Business is carried on.
For the purpose of this warranty and warranties 5 and 6 of this Part VIII "past
employee" means any person whose employment by the Company ceased in the period
of 12 months prior to the date of this Agreement.
The Company has not been notified of any violation of, or default with respect
to, any statute, regulation, order, decree or judgment of any court or any
governmental agency of the United Kingdom, the European Community or any foreign
jurisdiction which may have a material adverse effect upon the assets or
business of the Company.
2. LICENCES AND CONSENTS
So far as the Warrantors are aware, the Company has obtained all licences,
consents, approvals, permissions, permits, certificates, qualifications,
registrations and other authorisations necessary for the operation of the
Business in the places and in the manner in which the Business is now carried on
(together the "AUTHORITIES"). So far as the Warrantors are aware, all of the
Authorities are in full force and effect and have been complied with in all
material respects.
3. CURRENT LITIGATION
The Company and its officers, agents and employees in the course of their
respective duties are not involved in any civil, criminal, arbitration,
administrative or other proceedings in any jurisdiction (together the
"PROCEEDINGS"). So far as the Warrantors are aware, no such Proceedings are
pending or threatened nor, so far as the Warrantors are aware, are there any
facts or circumstances which are likely to give rise to any Proceedings or
claims being commenced.
4. PAST LITIGATION
During the twelve-month period prior to the date of this Agreement, no
Proceedings have been commenced, threatened, settled or compromised which may
have or have had a significant effect on the financial or trading position or
prospects of the Target Group or may be material for disclosure in the Admission
Document.
5. JUDGMENTS/INVESTIGATIONS
Neither the Company nor, so far as the Warrantors are aware, any officer or
employee (past or present) of the Company (in his capacity as such) is:
5.1 subject to any order, decree, award, decision or judgment given by any
court, tribunal, arbitrator, governmental agency or other regulatory body in any
jurisdiction;
5.2 a party to any undertaking or assurance given to any court, tribunal,
arbitrator, governmental agency or other regulatory body which is still in
force; or
5.3 subject to any investigation, enquiry or disciplinary proceedings
(whether judicial, quasi-judicial or otherwise) by any authority (other than the
Company).
6. UNLAWFUL PAYMENTS
Neither the Company nor, so far as the Warrantors are aware, any of its
officers, agents or employees (past or present) in the course of their duties
have induced a person to enter into an agreement or arrangement with the Company
by means of, or have offered or made, an unlawful or immoral payment,
contribution, gift or other inducement.
7. PRODUCTS
7.1 There is no material claim (or material number of claims arising from
the same or a related subject matter), and, so far as the Warrantors are aware,
there are no circumstances which may lead to any such claim, relating to any
Products sold or supplied by or on behalf of the Company including in relation
to the accuracy and/or veracity of material published by the Company. The
Company has appropriate internal procedures to verify the accuracy of all
material it publishes (by whatever medium) prior to its publication by the
Company.
7.2 All Products, except those which are currently in the course of
development, comply with all applicable laws, regulations and standards in the
United Kingdom and, in the case of exhibitions held outside the UK and the
Products of Perfect Information Limited, the relevant country in which the
exhibition is held or the Products of Perfect Information Limited are sold. The
Warrantors have no reason to believe that any Product currently in the course of
development does not comply with, or will not be capable of complying with, the
foregoing warranty.
8. CITY CODE
The City Code on Takeovers and Mergers does not apply to the Company.
PART IX
INSOLVENCY
1. RECEIVERSHIP
No receiver or administrative receiver or manager or receiver and manager
or trustee or similar person has been appointed of the whole or any part of the
assets or undertaking of the Company.
2. ADMINISTRATION
No administration order has been made in relation to the Company and no
petition for such an order has been threatened or presented.
3. COMPROMISES
No voluntary arrangement, compromise, composition, scheme of arrangement,
standstill or standfast agreement, deferral, rescheduling or other readjustment
or reorganisation or other arrangement between the Company and its creditors
and/or its members (or any class of either of them) has been proposed or
approved or is in the contemplation of the Company.
4. WINDING-UP
No petition has been threatened or presented, no order has been made, no
resolution has been passed and no meeting has been convened for the purpose of
winding up the Company or for the appointment of a provisional liquidator or
special manager to the Company.
5. PAYMENT OF DEBTS
The Company is not unable to pay its debts within the meaning of section 123 (1)
or (2) Insolvency Act 1986.
6. DISSOLUTION
No step has been taken with a view to the dissolution or striking-off the
register of the Company.
7. UNSATISFIED JUDGMENTS
No unsatisfied judgment or court order is outstanding against the Company or any
of its assets.
8. DISTRESS
No distress, execution, forfeiture, re-entry, diligence, sequestration,
attachment or other process has been levied, enforced or threatened on or
against any asset of the Company.
9. UNDERVALUES AND PREFERENCES
The Company has not been party to any transaction at an undervalue (within
the meaning of section 238 Insolvency Act 1986) nor has it given or received any
preference (within the meaning of section 239 Insolvency Act 1986) in either
case during the two years preceding the date of this Agreement.
10. INTERESTS IN PROPERTY
The Company has not acquired any interest in property (or any interest
deriving from such interest) in respect of which an order under section 238 or
239 Insolvency Act 1986 is likely to be made (whether in relation to the Company
or in relation to any other person).
11. EXTORTIONATE CREDIT TRANSACTIONS
The Company has not been party to any extortionate credit transaction
(within the meaning of section 244 Insolvency Act 1986) during the three years
preceding the date of this Agreement.
12. TRANSACTIONS DEFRAUDING CREDITORS
The Company has not been party to any transaction at an undervalue (within
the meaning of section 423(1) Insolvency Act 1986) for either of the purposes
mentioned in section 423(3) Insolvency Act 1986, at any time.
13. GRATUITOUS ALIENATIONS AND UNFAIR PREFERENCES
The Company has not been a party to any gratuitous alienation (within the
meaning of section 242 Insolvency Act 1986) during the two years preceding the
date of this Agreement, nor has it given or received any unfair preference
(within the meaning of section 243 Insolvency Act 1986) during the six months
preceding the date of this Agreement.
PART X
INTELLECTUAL PROPERTY
1 OWNERSHIP OF BUSINESS IPR
1.1 There are no material Intellectual Property Rights necessary for
carrying on the Business in the UK other than (a) Intellectual Property Rights
of which the Company is sole legal and beneficial owner and (b) the Licensed
IPR.
1.2 The Disclosure Letter contains a complete and accurate list of all
material registered Intellectual Property Rights owned by the Company. All
registrations and renewal fees have been paid in relation to such Intellectual
Property Rights.
1.3 The Company is the sole legal and beneficial owner of all the Business
IPR other than the Licensed IPR free from any Security Interests. Without
prejudice to the foregoing and save to the extent specified in the IPR
Agreements, there are no agreements or arrangements of any kind which restrict,
or could restrict, the disclosure, use, licensing, assignment or charging by the
Company of any Business IPR.
2. KNOW-HOW
2.1 So far as the Warrantors are aware, all Know-How material to the
Business has been kept strictly confidential and has not been disclosed
otherwise than subject to an obligation of confidentiality on the person to whom
it was disclosed and subject to an obligation on that person not to use the
Know-How other than for the purpose for which it was disclosed.
2.2 There is no Know-How material to the Business which, following the
acquisition of the Company by the Buyer, the Company will not be able to use
free from any restrictions.
3. LICENSING
3.1 The Company has not granted nor is obliged to grant any licence or other
permission to any person in respect of any Business IPR other than:
3.1.1 to the extent specified in the IPR Agreements;
3.1.2 in respect of the disclosure of Know-How to a person in the ordinary
course of the Business subject to the obligations described in paragraph 2.1; or
3.1.3 implied licences granted by the Company in the ordinary course of the
Business.
4. INFRINGEMENT AND VALIDITY
4.1 In respect of all Business IPR other than the Licensed IPR, and so far
as the Warrantors are aware:
4.1.1 such Business IPR are not being infringed nor are they the subject of
any claim, opposition, court order or action;
4.1.2 the Company has not done nor omitted to do any act, matter or thing in
respect of any such Business IPR which would or might impinge upon the validity
or enforceability of the same or upon the right of the Company to use the same.
4.2 So far as the Warrantors are aware, the Company has not created any
Security Interest over the Licensed IPR and, without prejudice to the foregoing,
there are no agreements or arrangements other than the IPR Agreements which
restrict or could restrict the use by the Company of such Licensed IPR in the UK
and none of the Licensed IPR has been sub-licensed by the Company contrary to
the terms of the relevant IPR Agreement.
4.3 None of the Products or activities of the Business infringes any
Intellectual Property Rights of any other person in the UK and the Company has
not been notified that such Product or activities of the Business infringe any
Intellectual Property Rights of any person in any other jurisdiction in which
the relevant Product(s) or activities are carried on, or involves the unlicensed
use of information confidential to any person or, save as provided in the IPR
Agreements, gives rise to any liability for any royalty or similar payments.
5. IPR AGREEMENTS
5.1 So far as the Warrantors are aware, each of the IPR Agreements is in
full force and effect, each is valid and binding and, so far as the Warrantors
are aware, there exists no ground upon which any of them may be terminated by
any party. The Company has neither given nor received notice of termination of
any IPR Agreements.
5.2 So far as the Warrantors are aware, no party to any of the IPR
Agreements is in default, nor have there been any material disputes at any time
in the last two years relating to or arising out of any of the IPR Agreements.
5.3 The Sellers have disclosed to the Buyer all the terms and conditions
(whether written or unwritten) of each of the IPR Agreements which are material
to the Business.
PART XI
IT SYSTEMS
1. The IT Systems perform materially in accordance with their specifications
and are adequate for the current requirements of the Company in terms of
functionality and performance and do not contain any material or recurring
defect which may adversely affect their performance or has done so over the last
12 months.
2. So far as the Warrantors are aware no action other than routine
maintenance (including the payment of any sum) will be necessary to enable the
IT Systems to continue to be used in the Business in the period of 6 months
immediately following the date of this Agreement to the same extent and in the
same manner as they have been used up to and including the date of this
Agreement.
3. The material IT Systems are covered by warranty and/or maintenance
agreements which the Warrantors reasonably believe are adequate for the
requirements of the Company and are sufficient to remedy or compensate any
material defect.
4. Reasonable steps have been taken to back up electronically stored
information used in the Business and the Company has in place adequate disaster
recovery and security arrangements in relation to the IT Systems.
5. The Warrantors have disclosed to the Buyer complete and accurate copies
of all proposals, agreements or commitments entered into by the Company in
respect of any planned upgrade or development of the IT Systems which will
involved expenditure in excess of 10,000 pounds or any substantial new
acquisition (by purchase, licence or lease) of any hardware or software
or in respect of services affecting the IT Systems.
OWNERSHIP AND OPERATION OF THE HARDWARE
6. The Hardware is legally and beneficially owned by the Company free from
any Security Interest, is operated by and under the control of the Company and
is not dependent on any facilities which are not under the exclusive ownership,
operation or control of the Company.
PART XII
COMPETITION LAW MATTERS
1. So far as the Warrantors are aware no member of the Target Group has at
any time been nor is a party to or concerned in any agreement, arrangement,
concerted practice or conduct which:
1.1 was registrable under the provisions of the Restrictive Trade Practices
Act 1976;
1.2 was or is within the scope of Article 81(1) of the EC Treaty or Article
53(1) of the Agreement on the European Economic Area;
1.3 was or is an abuse of a dominant position under Article 82 of the EC
Treaty or Article 54 of the Agreement on the European Economic Area;
1.4 was unlawful by virtue of the Resale Prices Act 1976;
1.5 was or is within either of the prohibitions contained in Chapters I and
II of the Competition Act 1998, whether or not subject to a transitional
exemption;
1.6 was or is the subject of any investigation or reference under the Fair
Trading Act 1973, the Competition Act 1980 or the Enterprise Act 2002; or
1.7 was or is an infringement of the competition law of any other
jurisdiction to which any member of the Target Group has been or is subject.
2. No member of the Target Group has at any time:
2.1 received, nor so far as the Warrantors are aware are there any grounds
for believing that it is likely to receive any process, notice, communication or
request for information with respect to any actual or proposed agreement,
arrangement or concerted practice from the OFT, the Competition Commission, the
Secretary of State, the Monopolies and Mergers Commission, the European
Commission, the EFTA Surveillance Authority or any other person or body involved
in the investigation and/or regulation of mergers or anti-competitive agreements
or practices anywhere in the world (for the purposes of this paragraph 2 only,
each a "COMPETITION AUTHORITY"); or
2.2 been the subject of any report, decision, order, judgment or injunction
made, taken or obtained by any Competition Authority; or
2.3 given or been the subject of any undertaking or assurance given to any
Competition Authority in respect of merger control, anti-competitive agreements
or practices or otherwise.
3. No application or notification has been made by or on behalf of any
member of the Target Group to any Competition Authority under the competition
laws of the relevant jurisdiction, nor has any member of the Target Group
(directly or indirectly) made any communications to, or been involved in any
discussions with, any Competition Authority, in respect of the application of
the competition laws of the relevant jurisdiction to:
3.1 any past, present or proposed agreement, arrangement, concerted practice
or conduct of any member of the Target Group; or
3.2 any past, present or proposed agreement, arrangement, concerted practice
or conduct of any other person.
4. Each member of the Target Group has fully complied with all undertakings
and/or assurances given to any Competition Authorities.
PART XIII
OFFICERS AND EMPLOYEES
1. PARTICULARS
1.1 Those persons named as such in the schedule of officers annexed to the
Disclosure Letter are the only directors of the Company and no person not named
is held out as a director.
1.2 The particulars shown in the schedule of employees annexed to the
Disclosure Letter list all the employees of the Company, are, to the best of the
Warrantors' knowledge and belief, complete and accurate and in relation to each
employee gives:
1.2.1 the employing company, all remuneration payable and benefits provided
(whether or not discretionary), notice periods, and length of continuous
employment;
1.2.2 any written evidence of entitlements (whether purporting to be
discretionary or otherwise) to severance or other payments on termination of
employment (including enhanced redundancy payments); and
1.2.3 the terms of any share option, incentive or other similar scheme in
which any of the employees are entitled to participate (together with details of
their entitlements).
1.3 Since the Interim Accounts Date, no change in the remuneration, benefits
and arrangements relating to the employees has been made other than salary or
wage increases in the normal course of business nor has the Company made any
outstanding offer nor agreed to employ any person.
2. COMPLIANCE
2.1 The Company has complied with all its material obligations (including
health and safety obligations) to or in respect of all its employees and former
employees arising out of or in connection with their terms and conditions of
employment and/or with any relevant requirement including any orders and awards
made in respect of any of them and no amount due to or in respect of any
employee or former employee is in arrears and unpaid other than salary for the
month current at the date of this Agreement, and no liability for any failure to
comply has been transferred to the Company by virtue of the Transfer of
Undertakings (Protection of Employment) Regulations 1981 ("TUPE"). Without
prejudice to the provisions of paragraph 1 of Schedule VIII, for the purposes of
this paragraph 2.1 and paragraph 5 below "former employee" means any person
whose employment by the Company ceased in the period of 12 months prior to the
date of this Agreement.
2.2 The Company has maintained adequate, relevant and accurate records
relating to the service of each of its employees.
3. NOTICE
3.1 There is not outstanding any contract of employment between the Company
and any of its directors, officers or employees which is not terminable by the
Company without payment in lieu of notice, damages or compensation (other than
any compensation payable by statute) on three month's notice given at any time.
3.2 No employee of the Company has given notice to or received notice from
the Company to terminate his contract of employment.
4. TRADE UNIONS
There are no recognition, procedural or other arrangements with trade
unions which relate to any of the employees of the Company nor, so far as the
Warrantors are aware, are any of the employees members of a trade union; there
are no outstanding applications for trade union recognition or derecognition
relating to any of the employees and nor, so far as the Warrantors are aware,
are any such applications likely to be made; there is no staff association,
works council or similar employee body or employee representatives relating to
any of the employees.
5. DISPUTES
There are no outstanding claims against the Company by the employees or
former employees of the Company and, so far as the Warrantors are aware, no
payments are due by the Company under the provisions of the Employment Rights
Act 1996, or any other legislation conferring rights on employees or former
employees.
6. CONSULTANCY
There are no outstanding contracts or arrangements to which the Company is
a party for the payment to any person or body of any consultancy or like fees.
7. REDUNDANCIES
The Company has not been subject to a requirement in respect of any of its
employees to consult with appropriate representatives as defined in section 188
of the Trade Union and Labour Relations (Consolidation) Act 1992 and/or issue a
form HR1 during the three months immediately preceding the date of this
Agreement.
8. TUPE
The Company has not been a party to a "relevant transfer" (as defined in TUPE)
at any time during the period of 12 months immediately preceding the date of
this Agreement.
PART XIV
PENSIONS
1.1 In this paragraph the following expressions have the following meanings:
"L.J. DAVIS SCHEME" means the pension scheme of which L.J. Davis is the
sole member, held with Lincoln Finance, policy number 125-019040-75.
"RELEVANT BENEFIT" has the meaning given to it in section 612 of ICTA 1988.
"RELEVANT PERSON" means those persons listed in either the schedule of
officers or the schedule of employees annexed to the Disclosure Letter.
"SCHEMES" means the 1995 Scheme, the Centaur Communications Limited
Stakeholder Scheme and the Synergy Personal Pension Plan or such one or more of
them as the context requires.
"TRANSFERRED EMPLOYEE" means any employee of the Target Group whose
employment was transferred under the Transfer of Undertakings (Protection of
Employment) Regulations 1981 by virtue of the Sale of Business Agreement dated
31 March 1999 between United News & Media Group Limited, Chiron Communications
Limited and Centaur Communications Limited.
"1995 SCHEME" means the Centaur Communications Limited 1995 Retirement
Benefits Scheme and the trustees from time to time of that scheme as the context
so requires.
1.2 Save for the Schemes and the state scheme, no member of the Target Group
is or has been a party to or a participant in or a contributor to any scheme,
agreement or arrangement to provide any Relevant Benefit in respect of any
Relevant Person.
1.3 Copies of the following documents in relation to the Schemes are
contained in or annexed to the Disclosure Letter:
1.3.1 the current trust deeds and rules governing the 1995 Scheme together
with any subsequent amending deeds and resolutions;
1.3.2 all booklets and announcement letters issued to any person who
has been a member of any of the Schemes;
1.3.3 a list of the members of the Schemes with accurate and complete
details of employer's and member's contributions;
1.3.4 the latest set of audited accounts and report of the trustees of the
1995 Scheme;
1.3.5 the Inland Revenue's letter of approval for the 1995 Scheme;
1.3.6 a copy of the latest payment schedule in relation to each of the
Schemes.
1.4 So far as the Warrantors are aware, no legally enforceable undertaking
or assurance has been given in respect of any Relevant Person as to the
continuance, introduction, improvement or increase of any Relevant Benefit or as
to a change in the terms of membership of any of the Schemes.
1.5 No discretion or power has been exercised under the Schemes in respect
of any Relevant Person to:
1.5.1 augment any benefits; or
1.5.2 pay a contribution which would not otherwise have been paid.
1.6 The 1995 Scheme is approved as an exempt approved scheme within the
meaning of Chapter I of Part XIV of ICTA 1988 and the Centaur Communications
Limited Stakeholder Scheme and the Synergy Personal Pension Plan are approved
within the meaning of Chapter IV of Part XIV of ICTA 1998 and nothing has been
done or, so far as the Warrantors are aware, omitted to be done which may result
in the Schemes ceasing to be so approved.
1.7 So far as the Warrantors are aware, the Schemes comply with and have at
all times been administered in accordance with their governing provisions and
with all applicable laws and regulations (including without limitation the
requirements of the Board of Inland Revenue and of trust law). Each member of
the Target Group has complied with all applicable obligations under the Welfare
Reform and Pensions Act 1999 and all other regulatory and legislative
requirements relating to the provision of stakeholder pensions.
1.8 So far as the Warrantors are aware, every person who has at any time had
the right to join, or to apply to join, the Schemes has been properly advised of
that right. So far as the Warrantors are aware, no Relevant Person has been
unlawfully excluded from membership of a Scheme or from benefits thereunder and
no transfer value has been paid (directly or indirectly) to the 1995 Scheme from
another arrangement in respect of any Relevant Person in contravention of
Articles 141 of the EC Treaty, the Pensions Act 1995 or other applicable laws or
requirements, or the provisions of the Scheme or otherwise.
1.9 All amounts due to the Schemes by or in respect of the Relevant Persons
have been paid in accordance with the payment schedule.
1.10 No member of the Target Group nor any of the Sellers nor the 1995
Scheme are engaged or involved in any Proceedings which relate to the Schemes
and no such Proceedings are pending or threatened and so far as the Warrantors
are aware there are no facts likely to give rise to any such Proceedings. For
these purposes, "Proceedings" includes any litigation or arbitration, any
investigation or determination by the Pensions Ombudsman, the Occupational
Pensions Advisory Service or any internal disputes resolution procedure
established in relation to the 1995 Scheme.
1.11 All benefits which are not money purchase benefits within the meaning
of section 181(1) of the Pension Schemes Act 1993 and which are payable under
the Schemes on the death of any person while in employment to which the Schemes
relate are insured fully under a policy with an insurance company and so far as
the Warrantors are aware there are no ground on which that insurance company
might avoid liability under that policy.
1.12 Other than the Transferred Employees, no Relevant Person is entitled to
any enhanced terms as to the payment of Relevant Benefits (whether under any of
the Schemes or otherwise) if he takes early retirement or is made redundant or
otherwise that have passed to any member of the Target Group or to any business
previously acquired by any member of the Target Group by the operation of the
Transfer of Undertakings (Protection of Employment) Regulations 1981.
1.13 The Company is not the trustee of the L.J. Davis Scheme and has no
liability to make any contributions to the L.J. Davis Scheme, or to meet any
costs, fines, penalties or expenses in relation to the L.J. Davis Scheme. All
benefits provided by the L.J. Davis Scheme are money purchase benefits only
within the meaning of s.181 (1) of the Pension Scheme Act 1993.
PART XV
PROPERTY AND ENVIRONMENT
1. INTERPRETATION
In this Part each Warranty which is expressed to be given in relation to
the "PROPERTY" shall be deemed to be given in relation to each of the Properties
as if it had been repeated with respect to each of the Properties and each and
every part thereof and reference to the "OWNER" shall, where the context so
admits, be a reference to the Target Group Company which is the owner of the
relevant Property as shown in Schedule 7 and reference to the "LEASE" shall,
where the context so admits, be a reference to each and every lease under which
the Property is held.
2. WARRANTIES
2.1 Schedule 7 contains a complete and accurate list of the properties
owned, controlled, or occupied by the Target Group in connection with the
Business or in which the Target Group has any interest.
2.2 Any written replies given by the Warrantors or the Seller's Solicitors
to any enquiries raised in respect of the Property are true and accurate in all
material respects and are not misleading.
2.3 The Target Group has no liability (whether actual contingent or
prospective) or obligation in respect of any property other than the Property.
2.4 To the best of the Warrantor's knowledge, information and belief, all
information and material provided by the Owner to the Sellers' Solicitors for
the purpose of them giving the Certificates of Title is true complete and
accurate in all respects.
ENVIRONMENT
3. INTERPRETATION
"ENVIRONMENT" means any and all living organisms (including man),
ecosystems, property and the media of air (including air in buildings, natural
or man-made structures, below or above ground) water, (including coastal and
inland waters, surface waters, ground waters and water in drains and sewers) and
land (including under any water as described above);
"ENVIRONMENTAL LAWS" means all international, EU, national, federal, state
or local statutes, bylaws, orders, regulations or other law or subordinate
legislation or common law, all orders, ordinances, decrees, statutory guidance
notes and equivalent controls concerning the protection of human health and the
conditions of work place and process safety or which have as a purpose or effect
the protection or prevention of harm to the Environment and which are binding in
relation to the Property and/or upon the Company as at the date of this
Agreement.
4. ENVIRONMENTAL MATTERS
All material audits commissioned in the last six years and in the
possession or control of the Company (whether conducted internally or
externally) where they identify an outstanding actual or potential liability
pursuant to Environmental Laws relating to the Property have been disclosed to
the Buyer.
PART XVI
TAX
1. GENERAL
1.1 So far as the Warrantors are aware, any transaction for which any
clearance or consent was obtained pursuant to any statutory provision or
statement of practice relating to Taxation or any press release by any Taxation
Authority has been carried out in accordance with the terms of the clearance or
consent given for that transaction and the application upon which the clearance
or consent was based.
1.2 Since the Accounts Date no accounting period of the Company has ended.
1.3 The Company is not a large company for the purposes of the Corporation
Tax (Instalment Payments) Regulations 1998 (the "Instalment Regulations") and is
not, and has not within the last six years been, a party to any such
arrangements as are mentioned in section 36 Finance Act 1998 (group payment
arrangements).
1.4 The Company has not claimed any tax relief for expenditure on research
and development.
2. COMPLIANCE
2.1 So far as the Warrantors are aware, the Company has made all returns,
claims for relief, applications, notifications, computations, reports, accounts,
statements, registrations and assessments (whether physically in existence or
electronically stored) ("RETURNS") it is required by law to make. All Returns
have been properly submitted (whether physically or electronically) by the
Company within any relevant time limits to all Taxation Authorities and the
Returns are accurate and are not the subject of any dispute with any Taxation
Authority.
2.2 The Company has kept and preserved sufficient records as required by law
and to enable it to deliver correct and complete Returns. Such records are
accurate and up-to-date in all material respects.
2.3 The Company has punctually submitted to the relevant Taxation
Authorities all claims, elections, notifications and disclaimers which have been
assumed to have been made for the purposes of computing any provision or reserve
for Taxation (including deferred taxation) included in the Accounts. No such
claims, elections, notifications or disclaimers have been disputed by the
Taxation Authority in question, or withdrawn.
2.4 So far as the Warrantors are aware, all payments by the Company to any
person which ought to have been made under deduction or withholding of Taxation
have been so made and the Company has (if required by law to do so) provided a
certificate of deduction or withholding to such person in the required form.
2.5 No taxation authority has agreed to operate any special arrangement
(being an arrangement which is not based on an application of the relevant
legislation, statements of practice or extra-statutory concessions) in relation
to the Company's affairs.
2.6 The Company has complied with all notices served on it by any taxation
authority and no such notice remains outstanding.
2.7 The Company is not and, so far as the Warrantors are aware, is not
likely to be involved in a dispute in relation to Taxation.
3. LOAN RELATIONSHIPS
3.1 The Company has no, and has not since the Accounts Date had any, loan
relationships in relation to which there is a connection between the parties as
defined by section 87 Finance Act 1996 (accounting method where parties have a
connection), or one of the parties has a major interest (as defined in paragraph
20 of schedule 9 Finance Act 1996) in the other.
3.2 The Company does not own any convertible securities.
4. CAPITAL ALLOWANCES
4.1 The aggregate book value in or adopted for the purposes of the Accounts
of the assets of the Company which qualify for allowances under the Capital
Allowances Act 1990 or the Capital Allowances Act 2001 does not exceed the
aggregate residue of qualifying expenditure or written-down value attributable
to such assets for the purposes of those Acts. The aggregate book value in or
adopted for the purposes of the Accounts of assets allocated to a pool of assets
which qualify for allowances under the Capital Allowances Act 1990 or the
Capital Allowances Act 2001 does not exceed the available qualifying expenditure
in respect of each such pool under those Acts.
4.2 All expenditure incurred by the Company in the last three years for the
provision of machinery or plant has qualified for writing down allowances under
Part II Capital Allowances Act 1990 or Part 2 Capital Allowances Act 2001
(machinery and plant).
4.3 Since the Accounts Date any claims for capital allowances which have
been made under the Capital Allowances Act 1990 or Capital Allowances Act 2001
have not been withdrawn, and no available allowances have been disclaimed.
4.4 The Company has no interest in any machinery or plant which is a
long-life asset for the purposes of section 38A Capital Allowances Act 1990 or
section 91 Capital Allowances Act 2001 (long-life assets).
4.5 The Company has never claimed first-year allowances under section 22
Capital Allowances Act 1990 or section 52 Capital Allowances Act 2001.
4.6 The Company has not claimed any capital allowances other than allowances
claimed under Part II Capital Allowances Act 1990 or Part 2 Capital Allowances
Act 2001 (plant and machinery allowances).
5. GROUPS OF COMPANIES
5.1 The Company comprises a group with each of the Target Group Companies
for the purposes of section 402 ICTA 1988 (surrender of group relief between
members of groups and consortia). The Company has not, in the last seven years,
been a member of any other group for tax purposes.
5.2 All dividends and other amounts which have been paid by the Company, and
which were referred to in section 247 ICTA 1988 (group income) as that section
had effect at the time when the dividends or other payments were declared or
made, have been paid under a valid election made under that section.
6. VALUE ADDED TAX
6.1 The Company has not, within three years ending on the Accounts Date,
been registered for the purposes of the Value Added Tax Act 1994 otherwise than
as a member of a group of companies for the purposes of sections 43 to 43c Value
Added Tax 1994 (groups of companies) of which Centaur Communications Limited is
the representative member (the "REPRESENTATIVE MEMBER").
6.2 The Representative Member is a registered and taxable person for the
purposes of the Value Added Tax Act 1994, such registration not being pursuant
to paragraph 2 schedule 1 Value Added Tax Act 1994 and not subject to any
conditions imposed by or agreed with H.M. Customs and Excise. So far as the
Warrantors are aware, the Company has complied with the terms of all statutory
provisions, regulations, directions, conditions, notices and agreements with
H.M. Customs and Excise relating to value added tax. The Representative Member
has not been required by H.M. Customs and Excise to give security.
6.3 The Company has not (within the last three years) acquired any asset to
which Part XV of the Value Added Tax Regulations 1995 (adjustments to the
deductions of input tax on capital items) applies or will apply.
6.4 The Company is not required to pay amounts on account of value added tax
under any order made under section 28 Value Added Tax Act 1994 (payments on
account).
6.5 No claims have been made by the Company under section 36 Value Added Tax
Act 1994 (bad debts).
6.6 The Company is not, and has not agreed to become, an agent, manager,
factor or VAT representative for the purposes of section 47 or 48 Value Added
Tax Act 1994 (agents etc.) of any person who is not resident in the United
Kingdom;
7. CLOSE COMPANIES
7.1 The Company is not and has never been a close investment-holding company
within the meaning of section 13A ICTA 1988 (close investment-holding
companies).
8. EMPLOYEES
8.1 So far as the Warrantors are aware, the Company has properly operated
and complied with all provisions dealing with PAYE and National Insurance
contributions and has deducted tax as required by law from all payments to or
treated as made to or benefits provided for employees, officers, ex-employees,
ex-officers and persons rendering services to the Company.
8.2 The Company has not remunerated any employee, officer or other person
rendering services other than in cash payable to that employee, officer or other
person and there are no legally binding arrangements for the Company to provide
any such non-cash remuneration.
8.3 So far as the Warrantors are aware, no person has acquired, since 16
April 2003, shares or securities or an interest in shares or securities where
the right or opportunity to acquire those shares or securities or that interest
is, or was, regarded for the purposes of section 421B Income Tax (Earnings and
Pensions) Act 2003 as available by reason of an employment of that person or any
other person, where that employment is or was either:
8.3.1 employment by the Company; or
8.3.2 in a case where the shares or securities in question are shares
or securities of the Company, employment by any person.
8.4 So far as the Warrantors are aware, no person has acquired, since 16
April 2003, shares or securities or an interest in shares or securities where
the right or opportunity to acquire those shares or securities or that interest
is, or was, conferred on that person by reason of his provision of services to
the Company.
8.5 The Company:-
8.5.1 does not operate any scheme approved under Chapters 7 or 8 of
Part 7 Income Tax (Earnings and Pensions) Act 2003 (approved SAYE option schemes
and approved CSOP schemes) or schedule 9 ICTA 1988 (approved share option and
profit sharing schemes);
8.5.2 does not operate any plan approved under Chapter 6 of Part 7
Income Tax (Earnings and Pensions) Act 2003 or schedule 8 Finance Act 2000
(share incentive plans);
8.5.3 has not granted any qualifying options under Chapter 9 of Part 7
Income Tax (Earnings and Pensions) Act 2003 or schedule 14 Finance Act 2000
(enterprise management incentives); and
8.5.4 does not operate a qualifying employee share ownership trust as
defined in schedule 5 Finance Act 1989 (employee share ownership trusts).
8.6 The Company has never, under section 140G ICTA 1988 (information for the
purpose of sections 140A to 140F), or section 85 Finance Act 1988 (information:
unapproved share schemes), been required to provide, give or deliver particulars
(as specified in those sections) to any Taxation Authority.
8.7 The Company has not been granted any dispensations relating to the
taxation of its employees or the reporting of benefits provided to such
employees.
9. STAMP DUTIES
9.1 There is no instrument to which the Company is a party, or which is
necessary to establish the Company's rights or the Company's title to any asset,
which is liable to stamp duty (or any like duty or tax in a jurisdiction outside
the United Kingdom) which has not been duly stamped or which would attract stamp
duty, interest or penalties if brought within the relevant jurisdiction.
9.2 So far as the Warrantors are aware, the Company has complied in all
respects with the provisions of Part IV Finance Act 1986 (stamp duty reserve
tax) and with any regulations made under the same.
9.3 The Company does not hold any interest in land in the United Kingdom
which was acquired by it or by another Target Group Company, or which is derived
from an interest in land which was acquired by it or by another Target Group
Company, within three years prior to the date of this Agreement:-
9.3.1 by means of an instrument which was stamped on the basis that it
was entitled to relief under any of section 42 Finance Act 1930, section 11
Finance Act (Northern Ireland) 1954, section 151 Finance Act 1995, or section 76
Finance Act 1986; or
9.3.2 under a transaction which was exempt from, or subject to a
reduced rate of, stamp duty land tax by virtue of any of paragraphs 1, 7 or 8 of
schedule 7 Finance Act 2003 (group relief, reconstruction relief and acquisition
relief).
9.4 The Company has complied in all respects with the provisions of Part 4
Finance Act 2003 (stamp duty land tax), including its associated schedules, and
with any regulations made under the same. The Inland Revenue has not enquired,
or given notice of its intention to enquire, into a land transaction return
delivered by or on behalf of the Company.
10. INTERNATIONAL
10.1 The Company was incorporated in and is and always has been resident
only in the United Kingdom for Taxation purposes.
10.2 So far as the Warrantors are aware, the Company has not, without the
prior consent of the Treasury, entered into any of the transactions specified in
section 765 ICTA 1988 (migration etc. of companies), nor has it entered into a
transaction of the type referred to in section 765A ICTA 1988 (movements of
capital between residents of member states) without complying with the
information reporting requirements prescribed by virtue of that section.
10.3 No provision has been made or imposed by means of a transaction or
series of transactions which requires the Company to compute its profits or
losses for tax purposes as if an arm's length provision has been made or imposed
instead of the actual provision in accordance with the requirements of Schedule
28AA.
11. INTANGIBLE ASSETS
11.1 There are no assets held by the Company in respect of which it has
claimed, or will before Completion claim, any debits under schedule 29 Finance
Act 2002 (gains and losses of a company from intangible fixed assets).
SCHEDULE 6
LIMITATIONS ON CLAIMS
1. INTERPRETATION
In this Schedule (unless the context otherwise requires):
1.1 a "CLAIM" means any claim against the Warrantors (or any of them) under
the Warranties or under clause 5.11 (save in respect of any claim under the
Warranties contained in paragraph 8 of Part II of Schedule 5) any claim under
the Pensions Schedule or under the Tax Deed; and
1.2 "DETERMINATION" means a determination by a court of competent
jurisdiction or a final award or decision of a duly appointed arbitrator or
expert (as the case may be) or a binding agreement between the parties and
"DETERMINED" shall be construed accordingly.
2. TIME LIMITS
2.1 The Warrantors shall not be liable for any claim unless written notice
of the claim has been given to them by or on behalf of the Buyer:
2.1.1 in respect of a claim under Part XVI of Schedule 5 or under the
Pensions Schedule, on or before 30 September 2010; and
2.1.2 in respect of any other claim, on or before 30 September 2005.
2.2 The written notice of the claim (other than any claim under the Tax
Deed) shall be given as soon as reasonably practicable by the Buyer and shall
give details (so far as such details are known to the Buyer) of the nature of
the claim, the circumstances giving rise to it and the Buyer's bona fide
estimate of any alleged loss (provided that any failure by the Buyer to give all
relevant details of a claim and/or an estimate of the alleged loss in such
notice shall not prejudice the claim in question).
2.3 Any claim (other than any claim under the Tax Deed) shall be deemed to
be withdrawn (if it has not been previously satisfied, settled or withdrawn)
unless legal proceedings in respect thereof have been commenced within twelve
months of the giving of written notice of the claim, and for this purpose such
legal proceedings shall not be deemed to have commenced unless both issued and
served. In the case of claims relating to a contingent liability of the
Warrantors or the Company, as provided for in paragraph 11, the requirement to
commence legal proceedings shall be deemed to be within twelve months of such
liability becoming actual and not contingent.
3. UPPER LIMIT
The aggregate liability of each Warrantor for all claims, including for any
claim under the Tax Deed and the Pensions Schedule, shall be limited to the
amount set opposite such Warrantor's name in columns 2 to 5 below. For the
purposes of these limits, the liability of the Warrantors shall include the
amount of all costs, expenses and other liabilities (together with any VAT
thereon) payable by them in connection with the satisfaction, settlement or
determination of any such claim. The liability of each Warrantor for any
individual claim shall be limited to his relevant proportion as set opposite
such Warrantor's name in column 6 below.
(1) WARRANTOR . . . . (2) LIABILITY FOR CLAIMS (3) LIABILITY FOR CLAIMS
NOTIFIED PRIOR TO NOTIFIED PRIOR TO
31 DECEMBER 2004 30 SEPTEMBER 2006
(POUNDS) (POUNDS)
--------------------- ------------------------ -----------------------
Graham Sherren. . . . 10,362,000 6,908,000
--------------------- ------------------------ -----------------------
Griffin Land. . . . . 24,756,000 16,504,000
--------------------- ------------------------ -----------------------
VS & A Communications 24,882,000 16,588,000
--------------------- ------------------------ -----------------------
Total . . . . . . . . 60 million 40 million
--------------------- ------------------------ -----------------------
(1) WARRANTOR . . . . (4) LIABILITY FOR CLAIMS (5) AGGREGATE LIABILITY FOR
NOTIFIED PRIOR TO THE REMAINING PERIOD
30 SEPTEMBER 2008 OF RISK
(POUNDS) (POUNDS)
--------------------- -------------------------- ----------------------------
Graham Sherren. . . . 6,044,500 5,181,000
--------------------- -------------------------- ----------------------------
Griffin Land. . . . . 14,441,000 12,378,000
--------------------- -------------------------- ----------------------------
VS & A Communications 14,514,500 12,441,000
--------------------- -------------------------- ----------------------------
Total . . . . . . . . 35 million 30 million
--------------------- -------------------------- ----------------------------
(1) WARRANTOR . . . . (6) RELEVANT PROPORTION (%)
--------------------- ---------------------------
Graham Sherren. . . . 17.27
--------------------- ---------------------------
Griffin Land. . . . . 41.26
--------------------- ---------------------------
VS & A Communications 41.47
--------------------- ---------------------------
Total . . . . . . . . 100
--------------------- ---------------------------
For the avoidance of doubt, the cap on liability set out in each column opposite
"Total" in the above table shall take into account any liability for claims
notified in the periods preceding the period to which each column relates.
4. LOWER LIMIT
4.1 Save in respect of a claim arising under the Tax Deed in respect of the
non- availability or loss of any Corporation Tax Saving (as defined therein) (a
"CORPORATION TAX CLAIM"), the Warrantors shall not be liable for any claim
unless the aggregate amount of such claim, when taken together with the amount
of all other claims (including any claims under the Tax Deed), exceeds
1,000,000 (the "THRESHOLD") in which event the Warrantors shall, subject to the
other provisions contained in this Schedule, be liable for the amount in excess
of the Threshold only.
4.2 The Warrantors shall not be liable for any Corporation Tax Claim unless
the aggregate amount of such claim exceeds 150,000 pounds in which event
the Warrantors shall, subject to the other provisions contained in this
Schedule, be liable for the whole amount of such claim and not merely the
amount in excess of 150,000 pounds. If the amount of such claim is
greater than 150,000 pounds, but the Warrantors' actual liability is reduced
below 150,000 pounds by paragraph 5.3 of this Schedule 6, the Warrantors
shall discharge the actual liability so reduced notwithstanding it is less
than 150,000 pounds
4.3 Save in respect of any claim under the Tax Deed, the Warrantors shall
not be liable for any claim where the liability in respect of such claim does
not exceed 10,000 pounds (a "DE MINIMIS CLAIM") and no such De Minimis claim
shall count towards the Threshold provided that the liability of any claims
arising out of a series of identical or substantially similar matters,
facts, or circumstances shall be aggregated for the purpose of determining
whether such claims constitute De Minimis claims.
4.4 For the purposes of calculating claims counting towards the Threshold,
there shall be excluded in any claim the amount of any costs, expenses and other
liabilities (together with any irrecoverable VAT thereon) incurred or to be
incurred by the Buyer and any Target Group Company in connection with the making
of any such claim.
5. DOUBLE CLAIMS
5.1 No Warrantor shall be liable for any breach of the Warranties to the
extent that the loss occasioned by the fact, matter, event or circumstance
giving rise to such breach has been recovered under the Tax Deed or the Pensions
Schedule or from another Warrantor.
5.2 If the same fact, matter, event or circumstance gives rise to more than
one claim for breach of any Warranties, the Buyer shall not be entitled to
recover more than once in respect of such fact, matter, event or circumstance.
5.3 There shall be offset against the aggregate amount of any claims any
amount by which the Completion Cash Balances exceed 3,881,000 pounds.
6. CHANGES ON AND/OR AFTER COMPLETION
The Warrantors shall not be liable for any claim to the extent that it arises,
or is increased or extended by:
6.1 any change to legislation, any increase in rates of Taxation or any
change in the published practice of a revenue authority, in each case made on
and/or after Completion with retrospective effect;
6.2 any change in the accounting reference date of the Buyer or any Target
Group Company made on and/or after Completion;
6.3 any change in any accounting policy or practice of any Target Group
Company made on and/or after Completion, save where such change is required to
conform such policy or practice with generally accepted policies or practices as
at Completion or where such change is necessary to correct an improper policy or
practice as at Completion; or
6.4 any voluntary act, omission or transaction carried out by, or at the
request of, or with the consent of, the Buyer after Completion otherwise than in
the ordinary course of business or to comply with its legal or regulatory
obligations (including compliance with any relevant accounting standard) and
which the Buyer knew or ought reasonably to have known would give rise to or
increase the amount of a claim.
7. REMEDIABLE BREACHES
The Warrantors shall not be liable for any claim (other than claims under
the Tax Deed) to the extent that the fact, matter, event or circumstance giving
rise to such claim is remediable and is remedied by, or at the expense of, the
Warrantors within 20 Business Days of the date on which written notice of such
claim is given to the Warrantors.
8. THIRD PARTY RECOVERY
8.1 Where the Buyer and/or the Company is, in the reasonable opinion of the
board of directors of the Buyer, likely to be entitled to recover from some
other person (including an insurer under any insurance policy in force for the
benefit of the Target Group) any sum in respect of any matter giving rise to a
claim for breach of the Warranties, then the Buyer shall procure that all
reasonable steps are taken to enforce such recovery, shall notify the Warrantors
that reasonable steps are being taken to enforce such recovery and shall consult
with the Warrantors in relation to the progress of such recovery, provided that:
8.1.1 the Buyer or the Company shall not be required to take any action
against such third party if, in the reasonable view of the Buyer, to take such
action would be likely to damage the goodwill or trading or prospects of the
Business.
8.1.2 subject to paragraph 8.1.3, the Buyer and/or the Company may take
action to bring and enforce a claim under this Agreement, the Tax Deed or any
related agreement without first taking action against such third party; and
8.1.3 where the claim relates to any loss which is covered by any insurance
policy in force for the benefit of the Target Group, the Buyer and/or the
Company shall be obliged to take action to recover under such policy before
taking action against the Warrantors to recover under the Warranties PROVIDED
THAT (a) the Company and/or the Buyer shall not be required to resolve finally
the insurance claim before commencing proceedings against the Warrantors in
respect of the alleged breach of Warranty and (b) the time period in paragraph
2.3 shall be extended to the date being twelve months from the date on which the
insurance claim is made.
9. REIMBURSEMENT
If, after any Warrantor has made any payment in respect of a claim (other than a
claim made under the Tax Deed), the recipient of that payment or any Target
Group Company recovers from a third party (including an insurer) a cash sum or
benefit in kind which is directly referable to that claim (the "RECOVERY
AMOUNT"), then the Buyer shall forthwith repay (or procure the repayment) to the
relevant Warrantor of so much of the Recovery Amount (less all reasonable costs,
charges and expenses incurred in making such recovery) as does not exceed the
sum paid by the relevant Warrantor.
10. MISCELLANEOUS
The Warrantors shall have no liability (or such liability shall be reduced)
in respect of any claim for breach of any of the Warranties if and to the extent
that provision or reserve for or in respect of the liability or other matter
giving rise to such claim has been made in the Accounts or in the Interim
Accounts.
11. If in respect of any claim under the Warranties the liability of the
Warrantors or the Company is contingent only, then the Warrantors shall not be
under any obligation to make any payment to the Buyer until such time as the
contingent liability ceases to be contingent and becomes actual.
12. Any amount payable by the Warrantors to the Buyer in satisfaction of any
claim made under the Warranties or under Clause 5.11 shall be treated as a
reduction by that amount of the consideration paid to the Sellers pursuant to
this Agreement.
13. The Buyer shall take all reasonable steps to mitigate any loss or
liability which is or might become the subject of a claim under this Agreement.
14. The only Warranties given in relation to
14.1 the Properties and Environmental Matters are those contained in Part XV
of Schedule 5;
14.2 Intellectual Property Rights are those contained in Part X of Schedule
5; and
14.3 Taxation are those contained in Part XVI of Schedule 5.
15. If any claim is made against any Target Group Company which may give
rise to a liability under this Agreement or under the Pensions Schedule, the
Buyer shall (and shall procure that the Target Group shall):-
15.1 subject to the Warrantors indemnifying the Buyer and/or the Target
Group to the Buyer's reasonable satisfaction against any liability, costs,
damages or expenses which may be reasonably incurred, not make any admission of
liability, agreement or compromise with any person, body or authority in
relation to that claim without the prior written consent of the Warrantors such
consent not to be unreasonably withheld or delayed;
15.2 (except to the extent prevented from doing so by legal privilege or
confidential obligations owed to a third party) give the Warrantors and their
professional advisers reasonable access to the premises and personnel of the
Buyer and/or the Target Group (as the case may be) and to any relevant chattels,
accounts, documents and records within the power or control of the Buyer and/or
the Target Group so as to enable the Warrantors and their professional advisers
to examine such premises, chattels, accounts, documents and records and to take
copies at the Warrantors' expense;
15.3 subject to the Warrantors indemnifying the Buyer and/or the Target
Group to the Buyer's reasonable satisfaction against any liability, costs,
damages or expenses which may be reasonably incurred, take such action as the
Warrantors may request to avoid, dispute, resist, compromise or defend such
claim provided always that the Buyer or the Target Group shall not be required
to take any action against such third party if, in the reasonable view of the
Buyer, to take such action would be likely to damage the goodwill or trading or
prospects of the Business.
SCHEDULE 7
LEASEHOLD
PROPERTY TENANT EXISTING USE
-----------------------------------------------------------------------
St Giles House, 49
and 50 and part of 51 Poland
Street, London, W1 the Company Offices
------------------------------------------------------------------------
Units 1, 2 and 6 Sugar
Brook Court, Aston Road,
Bromsgrove, Worcestershire Ascent Publishing Limited Offices
------------------------------------------------------------------------
Part ground and basement,
1st, 2nd, 3rd and 4th floor
12/26 (even) Lexington Street,
London W1 the Company Offices
------------------------------------------------------------------------
Part basement, lower ground,
garage at ground floor, 1st
and 2nd floor Michael House,
35-37 Chiswell Street,
London, EC1 Perfect Information Limited Offices
--------------------------------------------------------------------------------
Office Suite 4, Brearley House,
278 Lymington Road, Highcliffe,
Dorset, BH23 5ET the Company Offices
------------------------------------------------------------------------
3rd, 4th, and 5th floors 134/140
(even) Oxford Street and 77/84
Wells Street, London, W1 the Company (tenant) Offices
------------------------------------------------------------------------
4th and 5th floor offices,
31 Upper Street, Luton Perfect Information Limited Offices
SCHEDULE 8
PENSIONS
1. DEFINITIONS
1.1 For the purposes of this Schedule, the following expression has the
following meaning:
CLAIM any written claim to an entitlement to any Relevant Benefits made by
any Transferred Employee (or any person acting on his behalf) against a Buyer
Group Company arising out of or in connection with such Transferred Employee's
membership of the United Magazines Final Salary Scheme and where the obligation
to meet such entitlement has transferred to the Buyer Group Company by the
operation of the Transfer of Undertakings (Protection of Employment) Regulations
1981. For this purpose written claim includes any letter of complaint, the
initiation of any proceedings in any tribunal or court, any submission to the
Pensions Ombudsman or any correspondence between any Buyer Group Company and the
Occupational Pensions Regulatory Authority, or any successor regulator.
1.2 References to paragraphs are (unless otherwise stated) to paragraphs in
this Schedule. Headings are for convenience only and shall not affect the
construction or interpretation of this Schedule.
1.3 In the event that the terms of this Schedule conflict with the terms of
any other provision of this Agreement, the terms of this Schedule shall take
precedence.
1.4 Schedule 6 (other than paragraphs, 4.2, 5.2, 6.1 and 11) applies for
the purposes of any claim made under this Schedule.
2. INDEMNITY
2.1 The Warrantors shall indemnify (and keep indemnified) the Buyer on
behalf of itself and as trustee for each Buyer Group Company against all losses,
claims, liabilities, demands or proceedings and reasonable costs and expenses
(including without limitation any reasonable legal and actuarial fees) suffered
or incurred by any Buyer Group Company as a direct or indirect consequence of a
Claim. The extent of the liability of the Warrantors will be calculated subject
to paragraph 5 below.
2.2 Subject to paragraph 3 below, the Warrantors shall not be liable to make
any payment under paragraph 2.1 unless written notice of a Claim has been given
to them by or on behalf of the Buyer on or before 30 September 2010 in
accordance with Schedule 6.
2.3 The Warrantors shall not be liable to make any payment under this
Schedule to the extent that it arises out of, or as a result of, any act or
omission by which any Buyer Group Company knowingly incites any Transferred
Employee (or any person acting on his behalf) to make a Claim.
3. CERTIFIED AMOUNT
3.1 In the event that the Buyer has given notice to the Warrantors on or
before 30 September 2010 of one or more Claims under paragraph 2, the remaining
provisions of this paragraph 3 shall apply.
3.2 Within 28 days after 30 September 2010, or earlier, if otherwise agreed
between the Buyer and the Warrantors, the Buyer and the Warrantors will jointly
instruct independent legal counsel of at least 10 years' call specialising in
pensions law to give a written opinion addressed to both parties as to whether
any Transferred Employee (and if so, which Transferred Employees) could make a
Claim against any Buyer Group Company and if so what, in his opinion, would be
the likely result of such Claim or Claims (including, without limitation, any
Claims brought before 30 September 2010 which have not been settled or have not
been met in full by the time this paragraph 3.2 is implemented), and if his
opinion is that on the balance of probabilities such Claim or Claims would be
successful, the basis on which any actual or contingent outstanding liability of
any Buyer Group Company as a consequence of such Claims would, on the balance of
probabilities, be calculated.
3.3 In the event that legal counsel advises that a Claim against a Buyer
Group Company would, on the balance of probabilities, be successful, the Buyer
and the Warrantors will, within 28 days of the Buyer and the Warrantors
receiving this advice, jointly instruct an independent actuary to certify his
opinion of the estimated costs of meeting all such liabilities which any Buyer
Group Company may have on the basis of the legal advice obtained under paragraph
3.2.
3.4 The parties will co-operate fully in preparing the joint instructions
set out in paragraphs 3.2 and 3.3. In particular, if the instructions referred
to in paragraphs 3.2 and 3.3 are not issued within the time limits set out in
those paragraphs, both parties will co-operate to ensure that the instructions
are issued as soon as reasonably practicable after those time limits.
3.5 If the parties fail to instruct an actuary and/or legal counsel in
accordance with this paragraph 3 and the Buyer forms the view that the
Warrantors have not co-operated or have acted in bad faith in discussions to
jointly instruct an actuary and/or legal counsel, the Buyer may issue the
Warrantors with a notice that, unless the Warrantors take all reasonable steps
to co-operate with the Buyer to jointly instruct an actuary and/or legal counsel
within a further 14 days, the Buyer shall be entitled to instruct legal counsel
and/or the actuary as appropriate alone. Before finalising the instructions
under this paragraph, the Buyer shall give Warrantors a copy of the instructions
and supporting documents. The Buyer shall obtain a fee quotation from the legal
counsel and/or actuary and shall notify the Warrantors of that fee quotation.
The Buyer will allow the Warrantors 14 days in which to comment on the
documentation and/or the fee quotation and shall make appropriate adjustments to
the instructions and supporting documents to take account of the reasonable
comments of the Warrantors before delivering them to legal counsel and/or the
actuary. The Buyer shall supply the Warrantors with a copy of the advice
supplied by the legal counsel and/or the certificate supplied by the actuary.
3.6 The actuary instructed under paragraph 3.3 or 3.5 as the case may be
will use such bases as are advised by legal counsel under paragraph 3.2 for the
purposes of his certification. The actuary will make the following assumptions:
3.6.1 that any Transferred Employee who could make a Claim does make a Claim
for the maximum amount of Relevant Benefits to which he may be entitled in
accordance with the advice of legal counsel under paragraph 3.2;
3.6.2 that the liability to provide Relevant Benefits in respect of each
TransferredEmployee would be met by the purchase of an annuity on the open
market.
For these purposes, the actuary will include in his calculations any prospective
liabilities in respect of any Claims which have already been made and which have
not yet been settled, or have not yet been met in full. The resulting amount
will be the "CERTIFIED AMOUNT".
3.7 Within 21 days of the actuary notifying the Warrantors of the Certified
Amount, the Warrantors will pay 50% of the Certified Amount (the "Indemnified
Amount") to the Buyer subject to and in accordance with the provisions of
Schedule 6.
3.8 Once a Warrantor has paid the Relevant proportion of all amounts which
are due and payable by that Warrantor as at the date of payment by him under
paragraph 2.1 and this paragraph 3, that Warrantor will be fully discharged from
any further liability under this Schedule.
3.9 To the extent that any Claims made before 30 September 2010 have not
been settled, or have not been met in full, the Buyer shall set aside part or
all of the Indemnified Amount paid to it to provide the maximum amount of
Relevant Benefits for which the Buyer Group is (according to the advice of
counsel and to the actuarial certification) liable to meet for the Transferred
Employees in respect of whom such Claims are outstanding.
4. COSTS
The Warrantors shall meet all the costs of obtaining the legal and actuarial
opinions referred to in paragraph 3, subject, where the instructions are
obtained jointly under paragraphs 3.2 and 3.3, to their having approved such
costs in advance.
5. UPPER LIMIT
5.1 Each Warrantor shall be liable under this Schedule, on a several (and
not a joint) basis, only for the proportion of any amount payable under this
Schedule set out against his name under the heading "Relevant proportion" in the
table set out below. The aggregate liability of each Warrantor for all claims
under this Schedule shall be limited to the amount set out against his name
under the heading "Liability cap" in the table set out below:
WARRANTOR . . . . . . . . . . . . . LIABILITY CAP RELEVANT PROPORTION (%)
(POUNDS)
----------------------------------- ----------------- -----------------------
Graham Sherren. . . . . . . . . . . 345,400 17.27
----------------------------------- ----------------- -----------------------
Griffin Land & Nurseries Inc. . . . 825,200 41.26
----------------------------------- ----------------- -----------------------
VS&A Communications Partners II LLP 829,400 41.47
----------------------------------- ----------------- -----------------------
Total . . . . . . . . . . . . . . . 2,000,000 100
----------------------------------- ----------------- -----------------------
5.2 For the purposes of the limits set out in paragraph 5.1 above, the
liability of the Warrantors shall include the amount of all costs, expenses and
other liabilities (together with any VAT thereon) payable by them in connection
with the satisfaction, settlement or determination of any Claim, and in
particular shall include costs under paragraph 4.
5.3 The upper limits set out in this paragraph 5 do not alter the overall
aggregate liability limits set out in paragraph 3 of Schedule 6 and any claims
made under this Schedule shall form part of the liabilities which are aggregated
for the purposes of paragraph 3 of Schedule 6.
SIGNED as a DEED and DELIVERED by) Graham Sherren
GRAHAM SHERREN in the presence of: )
Witness
Signature: /s/Andrew Gillen
Name: Andrew Gillen
Address: 10 Snow Hill
London
Occupation: Solicitor
SIGNED as a DEED and DELIVERED by ) Graham Sherren
JONATHAN SCOTT in the presence of: )
Witness
Signature: /s/Andrew Gillen
Name: Andrew Gillen
Address: 10 Snow Hill
London
Occupation: Solicitor
EXECUTED and DELIVERED as a DEED )
by ZRH NOMINEES (0022) LIMITED )
as nominee for Rothschild Trust (Schweiz) )
AG and RTB Trustees Limited in their )
capacity as trustees of the Graham Sherren )
Settlement acting by: )
Director
Director/Secretary
EXECUTED and DELIVERED as a DEED )
by ZRH NOMINEES (0022) LIMITED )
as nominee for Rothschild Trust (Schweiz) )
AG and RTB Trustees Limited in their )
capacity as trustees of the Graham Sherren )
Settlement acting by: )
Director
Director/Secretary
EXECUTED and DELIVERED as a DEED )
by GRIFFIN LAND & NURSERIES INC. )
acting by: )
/s/Frederick M Danziger
Frederick M Danziger
Director
/s/Anthony Galici
Anthony Galici
Secretary
EXECUTED and DELIVERED as a DEED )
by VS&A COMMUNICATIONS )
PARTNERS II, LP )
acting by: )
/s/Marco Sodi
Marco Sodi
Director
/s/Morgan Callagy
Morgan Callagy
Director/Secretary
SIGNED as a DEED and DELIVERED by ) Graham Sherren
GRAHAM SHERREN as attorney for )
JUDY SHERREN in the presence of: )
Witness
Signature: /s/Andrew Gillen
Name: Andrew Gillen
Address: 10 Snow Hill
London
Occupation: Solicitor
SIGNED as a DEED and DELIVERED by ) Graham Sherren
GRAHAM SHERREN as attorney for )
FIONA ABEL in the presence of: )
Witness
Signature: /s/Andrew Gillen
Name: Andrew Gillen
Address: 10 Snow Hill
London
Occupation: Solicitor
SIGNED as a DEED and DELIVERED by ) Graham Sherren
GRAHAM SHERREN as attorney for )
JOANNA SCOTT in the presence of: )
Witness
Signature: /s/Andrew Gillen
Name: Andrew Gillen
Address: 10 Snow Hill
London
Occupation: Solicitor
SIGNED as a DEED and DELIVERED by ) Graham Sherren
GRAHAM SHERREN as attorney for )
KATHERINE SHERREN )
in the presence of: )
Witness
Signature: /s/Andrew Gillen
Name: Andrew Gillen
Address: 10 Snow Hill
London
Occupation: Andrew Gillen
SIGNED as a DEED and DELIVERED by ) Graham Sherren
GRAHAM SHERREN as attorney for )
NICOLA CANAVAN in the presence of: )
Witness
Signature: /s/Andrew Gillen
Name: Andrew Gillen
Address: 10 Snow Hill
London
Occupation: Solicitor
SIGNED as a DEED and DELIVERED by ) Graham Sherren
GRAHAM SHERREN as attorney for )
SALLY MCVICKER in the presence of: )
Witness
Signature: /s/Andrew Gillen
Name: Andrew Gillen
Address: 10 Snow Hill
London
Occupation: Solicitor
SIGNED as a DEED and DELIVERED by ) Graham Sherren
GRAHAM SHERREN as attorney for )
CAROLINE SWIFT in the presence of: )
Witness
Signature: /s/Andrew Gillen
Name: Andrew Gillen
Address: 10 Snow Hill
London
Occupation: Solicitor
EXECUTED and DELIVERED as a DEED )
by CENTAUR HOLDINGS PLC )
acting by: )
/s/Colin Morrison
Colin Morrison
Director
/s/Patrick Taylor
Patrick Taylor
Director/Secretary
Exhibit 2.4 CONFORMED COPY
--------------
Dated 27 February 2004
(1) GRAHAM SHERREN AND OTHERS
(2) CENTAUR HOLDINGS PLC
TAX DEED
relating to
CENTAUR COMMUNICATIONS LIMITED
CONTENTS
CLAUSE PAGE
1. Definitions and interpretation 1
2. Covenants 6
3. Exclusions and limitations 7
4. Withholdings and deductions 11
5. Third Party Recovery and Corresponding Savings 11
6. Conduct of claims 13
7. Tax computations 15
8. Amount of a Liability to Taxation 15
9. Due date for payment 16
10. Buyer Covenant 17
11. General 18
12. Notices 18
13. Applicable law and jurisdiction 19
14. Assignment 20
THE SCHEDULE
Part I Covenantors
Part II Buyer
Part III Group Companies
THIS TAX DEED is made on 27 February 2004
BETWEEN:
(1) GRAHAM SHERREN AND OTHERS whose details are set out in Part I of the
Schedule (the "COVENANTORS"); and
(2) CENTAUR HOLDINGS PLC whose details are set out in Part II of the
Schedule (the "BUYER").
WHEREAS:
This Deed is entered into by the parties pursuant to and supplements the
Agreement.
THIS DEED WITNESSES as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 The following words and expressions where used in this Deed have the
meanings given to them below:
AGREEMENT the agreement dated as of the date hereof between the
Sellers, as defined in the Agreement (including the
Covenantors) (1) and the Buyer (2).
ASSUMED DEDUCTION the statutory corporation tax deduction of 10,356,000
Pounds which, for the purposes of agreeing the amount
of the Consideration, the parties have assumed will
arise under Schedule 23 of the Finance Act 2003 in
respect of the acquisition of shares by employees on
the exercise of the Centaur Options
CENTAUR OPTIONS options granted pursuant to the Centaur Communications
Limited 1984 Executive Share Option Scheme or the Centaur
Communications Limited Unapproved Share Option Scheme.
CORPORATION TAX SAVING the tax saving of 3,106,000 pounds, being 30% of
the Assumed Deduction.
EVENT includes any event, transaction, act, occurrence, or
omission of whatever nature, the acquisition, disposal
or realisation of any asset, the making of any claim or
election relevant for Taxation purposes, and Completion.
GROUP COMPANY any of the companies set out in Part III of the Schedule.
GROUP RELIEF the meaning attributed to that term by section 402
ICTA 1988.
ICTA 1988 the Income and Corporation Taxes Act 1988.
PROFITS includes income, profits, gains (including capital
gains) or the value of supplies and any other
consideration, value or receipts used or charged for
taxation purposes.
RELIEF any relief, exemption, allowance, set-off, deduction
or credit relevant to the computation of any
liability to make a payment of or relating to Taxation.
TAXATION all taxes, duties (including stamp duties), charges,
levies, imposts, contributions, withholdings or
amounts in the nature thereof chargeable by any
Taxation Authority irrespective of the person against or
To which any such taxes, duties, charges, levies,
imposts, contributions, withholdings or amounts in
the nature thereof are directly or primarily
chargeable, together with all interest, fines, penalties,
surcharges and charges incidental or relating to the
imposing of any of such taxes, duties, charges, levies,
imposts, contributions, withholdings or amounts in the
nature thereof (save to the extent that such interest,
fines, penalties, surcharges or charges are attributable
to any delay or default after Completion of the Company,
any Group Company or the Buyer, or their agents).
TAXATION AUTHORITY any taxation or other authority (whether within or
outside the United Kingdom) competent to impose
liability for Taxation.
TCGA 1992 Taxation of Chargeable Gains Act 1992.
VATA 1994 Value Added Tax Act 1994
1.2 In this Deed:
1.2.1 A reference to "LIABILITY TO TAXATION" includes any of the
following:
(a) a liability to make a payment of or relating to Taxation (an
"A LIABILITY");
(b) the application of all or part of any Relief in computing
either Profits earned, accrued or received on or before Completion or Taxation
arising in respect of any Event on or before Completion in circumstances where
(i) the Relief arises in respect of any Event occurring or period ending after
the Accounts Date, or (ii) that Relief has been taken into account as an asset
of a Group Company in preparing the Accounts or in computing (and so reducing)
any provision relating to deferred Tax which appears in the Accounts (or which
but for the presumed availability of such Relief, would have appeared in the
Accounts) and in either case where, but for such application, a Group Company
would have been liable to make a payment of or relating to Taxation in respect
of which the Buyer would have been able to make a claim under this Deed (a "B
LIABILITY");
(c) the loss, non-availability or setting off against any
liability to make a payment of or relating to Taxation (for which no provision
has been made in preparing the Accounts and in respect of which but for such
setting off the Buyer would have been able to make a claim under this Deed) of
all or part of a right to repayment of Taxation which has been treated as an
asset of a Group Company in preparing the Accounts (a "C LIABILITY"); and
(d) the loss or non-availability of all or part of any Relief,
where (i) that Relief has been taken into account as an asset of a Group Company
in preparing the Accounts or in computing (and so reducing) any provision
relating to deferred Tax which appears in the Accounts (or which but for the
presumed availability of such Relief would have appeared in the Accounts) in
circumstances where the Relief would (were it not for the said loss,
non-availability or application) have been available in full to any Group
Company, or (ii) that Relief comprises the Corporation Tax Saving (a "D
LIABILITY").
1.2.2 A reference to a "TAX ASSESSMENT" means any notice, demand,
assessment, return, accounts, letter or other document or action taken
indicating that it is likely that a liability to Taxation will arise in respect
of which a claim may be made under this Deed.
1.2.3 References to Profits earned, accrued or received include Profits
deemed to have been or treated as earned, accrued or received for taxation
purposes.
1.2.4 References to Profits being earned, accrued or received on or
before a particular date or in respect of a particular period shall include
Profits deemed for taxation purposes to have been earned, accrued or received on
or before that date or in respect of that period.
1.2.5 References to any payment, dividend or distribution shall include
anything which is deemed to be a payment, dividend or distribution for taxation
purposes.
1.2.6 References to any payment, dividend or distribution paid or made
on or before a particular date shall include:
(a) any payment, dividend or distribution which on or before that
date has fallen due to be made; and
(b) any Event which has occurred on or before that date and which
is deemed to be a payment, dividend or distribution.
1.2.7 Where an accounting period of a Group Company begins before and
ends on or after Completion it shall be assumed for the purposes of clause 1.2.1
that an accounting period (the "STRADDLE PERIOD") consists of two separate
accounting periods, the first beginning on the first day of the straddle period,
and the second beginning on Completion and ending on the last day of the
straddle period.
1.2.8 References to something being deemed or treated "FOR TAXATION
PURPOSES" in a certain way shall mean that for the purposes of any applicable
legislation or decided case law relating to or having reference to Taxation such
things are deemed or treated in the way described.
1.2.9 References to clauses and the Schedule are (unless otherwise
stated) to clauses of and the Schedule to this Deed. Headings are for
convenience only and shall not affect the construction or interpretation of this
Deed.
1.2.10 General words introduced by the word "OTHER" 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 and general words and
defined terms shall not be given a restrictive meaning by reason of the fact
that they are followed by particular examples intended to be embraced by the
general words.
1.2.11 References to any statute or statutory provision shall be
construed so as to include firstly a reference to such statute or statutory
provision as in force at the date of this Deed and as, if relevant, re-enacted
or consolidated, and secondly a reference to any statute or statutory provision
of which such statute or statutory provision is a re-enactment or consolidation.
1.2.12 References to a "PERSON" shall include references to any person,
unincorporated association, body of persons, partnership, trust or company.
1.2.13 The terms "ACCOUNTS", "ACCOUNTS DATE", "BUSINESS DAY", "CASH
BALANCES STATEMENT", "CONSIDERATION", "COMPLETION", "DISCLOSURE LETTER" and
"SELLERS' SOLICITORS" shall have the meanings attributed to them in the
Agreement.
2. COVENANTS
2.1 Subject to the exclusions and limitations in clause 3, the Covenantors
hereby severally covenant to pay to the Buyer the amount of any Liability to
Taxation suffered by a Group Company resulting from or in respect of:
2.1.1 any Event occurring or deemed, for taxation purposes, to have
occurred on or before Completion; or
2.1.2 any Profits earned, accrued or received in respect of any period
ending on or before Completion.
2.2 Without prejudice to the generality of clause 2.1 and subject to the
exclusions and limitations in clause 3, the Covenantors hereby severally
covenant to pay to the Buyer the amount of any liability of a Group Company
(other than to any other Group Company) to pay any amount pursuant to an
indemnity guarantee covenant or legally binding agreement entered into before
Completion under which any Group Company has agreed to meet or pay a sum
equivalent to or by reference to either its own Liability to Taxation or any
other person's liability to Taxation (construing "LIABILITY TO TAXATION" to
include the loss or application in calculating profits or Taxation of a Relief
and the loss or setting off of a right to repayment of Taxation).
2.3 Without prejudice to the generality of clause 2.1 and subject to the
exclusions and limitations in clause 3, the Covenantors hereby severally
covenant to pay to the Buyer the amount of all costs and expenses reasonably and
properly incurred or payable by the Buyer or a Group Company in connection with
any successful claim under this Deed.
2.4 Without prejudice to the generality of clause 2.1 and subject to the
exclusions and limitations in clause 3, the Covenantors hereby severally
covenant to pay to the Buyer the amount of any Liability to Taxation arising
from the denial or non-availability of relief under Schedule 7AC TCGA 1992 in
relation to the disposal of shares in Lawtel Limited.
2.5 Any payment made by the Covenantors to the Buyer under this Deed shall,
so far as lawfully possible, be a reduction in the Consideration payable by the
Buyer to the Covenantors under the Agreement.
3. EXCLUSIONS AND LIMITATIONS
3.1 The covenants in clause 2 shall not apply to any liability under that
clause to the extent that:
3.1.1 provision or reserve (other than provision or reserve for
deferred Taxation) in respect of that liability was made in the Accounts or the
liability has specifically been taken into account in the preparation of the
Accounts; or
3.1.2 the Liability to Taxation is in respect of or by reference to
income, profits or gains earned in respect of the period, or any Event
occurring, between the Accounts Date and Completion in the ordinary course of
business of a Group Company; and for the avoidance of doubt, the following will
not be treated as being within the ordinary course of business of a Group
Company:
(a) the payment of any dividend or the making of any distribution;
or
(b) the disposal or realisation or acquisition of any asset, other
than from one Group Company to another (including, without limitation, trading
stock) in circumstances where, and only to the extent that, the consideration
(if any) actually received (or due to be received) or given (or due to be given)
for such disposal or realisation or acquisition is less than (or in the case of
an acquisition, more than) the consideration deemed to be or have been received
or given for taxation purposes; or
(c) the supply or receipt of any service or business facility of
any kind, other than from one Group Company to another (including, without
limitation, a loan of money or the letting, hiring, licensing or creation of any
tangible or intangible property or rights) in circumstances where, and only to
the extent that, the consideration received (or due to be received) or given (or
due to be given) is less than (or in the case of a receipt of a service or
facility, more than) the consideration which is deemed to be received or given
for taxation purposes; or
(d) any Event, other than one involving two Group Companies, which
gives rise to deemed Profits in excess of any actual Profits, and only to the
extent of such excess; or
(e) any Event which results in a Group Company becoming liable to
pay or bear a Liability to Taxation (other than PAYE, national insurance
contributions and income tax deductible from payments by any Group Company)
directly or primarily chargeable against or attributable to another person
(other than another Group Company or the Buyer) or any Event which results in a
Group Company becoming liable to pay or bear a Liability to Taxation under
sections 126 to 129 of and schedule 23 to the Finance Act 1995 or section 48 of
the VATA 1994; or
(f) a Group Company ceasing, for taxation purposes, to be a member
of any group or associated with any other company or a Group Company ceasing to
be resident in the United Kingdom for taxation purposes; or
(g) the payment of any sum in respect of which an amount should have been
withheld in respect of Taxation but has not in fact been withheld.
3.1.3 the liability would not have arisen but for an act, omission or
transaction on the part of or carried out by the Buyer or a Group Company after
Completion, except that this exclusion shall not apply where any such act,
omission or transaction is carried out or effected by the Buyer or a Group
Company:
(a) pursuant to a legally binding commitment created on or before
Completion; or
(b) at the written request of the Covenantors with specific
reference to this clause 3.1.3; or
3.1.4 the liability arises or is increased as a result of any increase
in the rates of Taxation or any change in any law, regulation, directive,
requirement or published practice of a Taxation Authority occurring after
Completion; or
3.1.5 an amount in respect of the liability has been paid by, or on
behalf of, the Company or the relevant Group Company before Completion, pursuant
to the Corporation Tax (Instalment Payment) Regulations 1998 as an instalment in
respect of any accounting period of any Group Company commencing after the
Accounts Date, provided that such instalment payment has not already been taken
into account for the purposes of reducing the liability of the Covenantors under
this Deed. For the purposes of this clause 3.1.5 an amount shall be treated as
having been paid on behalf of the relevant Group Company as an instalment if an
apportionment has been made to that Group Company under a group payment
arrangement pursuant to Finance Act 1998, section 36; or
3.1.6 the liability is a liability for interest or penalty under the
Corporation Tax (Instalment Payments) Regulations 1998 referable to any
instalment payment due before Completion which would not have arisen but for
factors relevant to the calculation of "total liability" for the purposes of
such Regulations for any accounting period ending after Completion not know to
the Covenantors or the relevant Group Company concerned at the time of the due
payment; or
3.1.7 the liability arises as a result of a change after Completion in
any accounting policy, any tax reporting practice, or the length of any
accounting period for tax purposes, except where the Group Company's accounting
policies do not conform with generally accepted accounting practice at
Completion and the change is made in order that they do so conform; or
3.1.8 the liability arises or is increased as a result of any Group
Company failing to submit the returns and computations required to be made by
them or not submitting such returns and computations within the appropriate time
limit, in each case after Completion; or
3.1.9 the liability arises or is increased as a result of the failure
of the Buyer to comply with its obligations under clause 6, 7 or 10 of this
Deed; or
3.1.10 any relief arising in respect of an Event occurring or a period
ending on or prior to the Accounts Date (other than (i) a Relief that has been
taken into account as an asset of a Group Company in preparing the Accounts or
in computing (and so reducing) any provision relating to deferred tax which
appears in the Accounts (or would, but for the presumed availability of such
Relief would have appeared in the Accounts) or (ii) the Corporation Tax Saving)
is available to any Group Company to set against or otherwise mitigate the
Liability to Taxation (including but not limited to any relief available under
any of sections 393, 393A, 402 to 413, or section 240 Taxes Act 1988 or section
102 Finance Act 1989); or
3.1.11 the liability would not have arisen but for:
(a) the making of a claim, election, surrender or disclaimer, the
giving of a notice or consent or the doing of any other thing under the
provisions of any enactment or regulation relating to tax, after Completion by
the Buyer or any Group Company or any person connected with any of them and
which was not contemplated or prepared prior to Completion; or
(b) the failure or omission on the part of any Group Company to
make any such valid claim, election, surrender or disclaimer, or to give any
such notice or consent or to do any other thing the making, giving or doing of
which was taken into account in the preparation of the Accounts and which was
disclosed in the Disclosure Letter; or
3.1.12 the liability relates to the recovery of a debt that was written
off in the Accounts; or
3.1.13 the liability arises under regulations 107 or 108 of the Value
Added Tax Regulations 1995 by reason of any event or change of circumstances
arising after Completion; or
3.1.14 an amount in respect of that liability has been recovered
pursuant to the warranties and obligations contained in the Agreement or has
already been recovered under this Deed; or
3.1.15 the liability arises in respect of stamp duty or stamp duty
reserve tax payable on the transfer or agreement to transfer the shares pursuant
to the Agreement; or
3.1.16 the liability arises in respect of employer national insurance
contributions suffered by a Group Company arising from the exercise of any
Centaur Options granted prior to Completion to an employee of a Group Company.
3.2 Notwithstanding anything in this Deed to the contrary:
3.2.1 the Covenantors shall not be liable for any claim or claims under
this Deed in respect of a Liability to Taxation which is or may be assessed on a
Group Company unless written particulars thereof giving reasonable details of
the specific matters in respect of which any such claim is made shall have been
given to the Covenantors no later than six years and three months after the end
of the accounting period in which Completion takes place;
3.2.2 the provisions of paragraph 3 (Upper Limit), paragraph 4 (Lower
Limit) and paragraph 5 (Double Claims) of Schedule 6 to the Agreement shall
apply as if the same were set out in this Deed but substituting the references
to "WARRANTORS" for "COVENANTORS".
4. WITHHOLDINGS AND DEDUCTIONS
4.1 All sums payable by the Covenantors under this Deed or under the
Agreement shall be paid free and clear of all deductions or withholdings
whatsoever save only as may be required by law. If any such deductions or
withholdings are required by law the Covenantors shall pay such sum as will,
after such deduction or withholding has been made, leave the amount which would
have been received in the absence of any such requirement to make a deduction or
withholding.
4.2 In the event that any sum paid as a result of the obligations contained
in this Deed or in the Agreement is or will be subject to Taxation the
Covenantors shall pay such sum as will, after payment of the Taxation so
charged, leave a sum equal to the amount that would otherwise be payable under
any such obligation.
5. THIRD PARTY RECOVERY AND CORRESPONDING SAVINGS
5.1 If any payment is made by the Covenantors in full discharge of a
liability which has arisen under this Deed then:
5.1.1 if the Buyer or the relevant Group Company, as the case may be,
subsequently receives from any person other than the Buyer, a Group Company or
any person connected with any of them for taxation purposes a payment or credit
in respect of the Liability to Taxation in question, the payment or credit shall
be dealt with in accordance with clause 5.2; or
5.1.2 if the Buyer or a Group Company is entitled to a payment or
credit in respect of the Liability to Taxation in question from any person other
than the Buyer, a Group Company or any person connected with any of them for
taxation purposes or at some subsequent date becomes entitled to such payment or
credit, then the Buyer shall promptly notify the Covenantors of the entitlement
and shall, if so required by the Covenantors and at the Covenantors' sole
expense and upon the Covenantors indemnifying the Buyer to its reasonable
satisfaction against all costs and expenses properly and reasonably incurred,
take or procure that the relevant Group Company shall take all such steps as the
Covenantors may reasonably request to enforce that entitlement (keeping the
Covenantors fully informed of the progress of any action taken) and any payment
or credit received shall be dealt with in accordance with clause 5.2.
5.2 Where it is provided under clause 5.1 that a payment or credit is to be
dealt with in accordance with this clause 5.2:
5.2.1 in the case of a payment, the Buyer shall, within five Business
Days of receipt, pay to the Covenantors the amount of the payment received less
any Taxation payable by the Buyer or any Group Company in respect of the amount
received and less any reasonably and properly incurred out-of-pocket costs,
charges and expenses of recovery;
5.2.2 in the case of a credit, the Buyer shall, within five Business
Days of the date on which Taxation would otherwise have been payable had such
credit not been available, pay to the Covenantors an amount equal to the amount
of such Taxation less any reasonably and properly incurred out-of-pocket costs,
charges and expenses associated with obtaining the benefit of that credit;
subject to a maximum of the payment referred to in clause 5.1 made by the
Covenantors under this Deed.
5.3 If any payment is made by the Covenantors in full discharge of a
liability which has arisen under this Deed, then if the auditors for the time
being of a Group Company certify that a Relevant Amount exists for the purposes
of this clause, clause 5.7 shall apply.
5.4 A Relevant Amount shall be determined for the purposes of this clause as
follows:
5.4.1 if a provision for taxation in the Accounts is an Over-provision,
the amount of such Over-provision shall be a Relevant Amount;
5.4.2 if a liability to which clause 2 applies gives rise to a Saving,
the amount of such Saving shall be a Relevant Amount.
5.5 For the purposes of clause 5.4, an Over-provision exists if any
Liability to Taxation has been overstated in the Accounts, or such Liability to
Taxation has been discharged and satisfied below the amount attributed thereto
in the Accounts.
5.6 For the purposes of clause 5.4, a Saving shall include the saving which
arises where, as a result of a Liability to Taxation in respect of which
payment has been made by the Covenantors under this Deed, any Group Company is
relieved in whole or in part of a liability to make a payment of Taxation which
it would otherwise have been liable to make, or it obtains a Relief which would
not otherwise have been available.
5.7 Where, pursuant to clause 5.3, this clause 5.7 applies to a Relevant
Amount:
5.7.1 the Relevant Amount shall first be set off against any payment
then due from the Covenantors under this Deed;
5.7.2 to the extent that there is an excess, a refund shall be made to
the Covenantors of any previous payment or payments made by them under this Deed
up to the amount of such excess; and
5.7.3 to the extent that the excess referred to in clause 5.7.2 is not
exhausted under that clause, the remainder of that excess shall be carried
forward and set off against any future payments which become due from the
Covenantors under this Deed.
6. CONDUCT OF CLAIMS
6.1 If the Buyer or any of the Group Companies becomes aware of a Tax
Assessment relevant for the purposes of this Deed, the Buyer shall promptly give
written notice of the Tax Assessment to the Covenantors but so that the giving
of such notice shall not be a condition precedent to the liability of the
Covenantors. If the Covenantors shall indemnify the relevant Group Company or
Companies to the Buyer's reasonable satisfaction against all losses, costs,
damages and expenses (including interest on overdue Taxation and any Taxation
which has to be paid before a Tax Assessment can be appealed) which have been or
will be properly and reasonably incurred, the Buyer shall, or shall procure that
the relevant Group Company or Companies shall, take such action and give such
information and assistance in connection with the affairs of the relevant Group
Company or Companies as the Covenantors may reasonably request to resist, appeal
or compromise the Tax Assessment.
6.2 The Buyer shall not be obliged to procure that a Group Company appeals
against any Tax Assessment if, having given the Covenantors written notice of
the receipt of that Tax Assessment in accordance with clause 6.1, it has not
within fifteen Business Days of the giving of such notice received instructions
in writing from the Covenantors, in accordance with clause 6.1, to make that
appeal.
6.3 The Covenantors shall not be entitled to request that the Buyer takes or
procures the taking of any action under this clause 6 if in respect of any Tax
Assessment notified under clause 6.1 it is alleged by the Taxation Authority in
question that the Covenantors, or the relevant Group Company whilst it was under
the control of the Covenantors, has committed acts or omissions which may
constitute fraud.
6.4 For the avoidance of doubt, the actions which the Covenantors may
reasonably request under clause 6.1 shall include the relevant Group Company or
Companies applying to postpone (so far as legally possible) the payment of any
Taxation and the Covenantors shall being allowed to take on or take over the
conduct of all or any proceedings arising in connection with the Tax Assessment
in question. The Buyer shall, and shall procure that the relevant Group Company
or Companies shall, provide the Covenantors with copies of all correspondence
entered into and notes of any conversations or meetings with any Taxation
Authority to the extent that such correspondence or notes relate to the Tax
Assessment in question. The Covenantors shall keep all such information
confidential. If the Covenantors take over conduct of any proceedings under this
clause 6, the Covenantors shall keep the Buyer informed of all material
discussions with any Taxation Authority in relation to the proceedings and shall
promptly provide copies of all material correspondence or other material
documentation in relation to the proceedings to the Buyer.
6.5 The relevant Group Company or the Buyer (as the case may be) shall be at
liberty without reference to the Covenantors to admit, compromise or otherwise
deal with any Tax Assessment after the service of a notice in writing on the
relevant Group Company or the Buyer by the Covenantors to the effect that they
consider the Tax Assessment should no longer be resisted
6.6 Notwithstanding anything to the contrary in this clause 6, the Buyer
shall not be obliged to:
6.6.1 take or procure that a Group Company takes any action, the
effect of which is, or is reasonably likely, to result in a material increase in
the amount of Taxation payable by the Group Companies or the Buyer in respect of
accounting periods ending after Completion beyond what that liability would have
been but for the taking of that action; or
6.6.2 procure that a Group Company appeals against any Tax Assessment in any
forum beyond the first relevant appellate body unless leading tax counsel of at
least six years' call advises in writing that, in that counsel's opinion, the
chances of success in such a further appeal would be greater than the chances of
failure.
7. TAX COMPUTATIONS
7.1 The Buyers or their duly authorised agents shall, at the Buyer's sole
expense, prepare drafts of the tax returns and computations for the Group
Companies for all outstanding accounting periods ended on or prior to the
Accounts Date (the "OUTSTANDING RETURNS"). The Buyer will provide copies of all
material correspondence in relation to the outstanding returns to the
Covenantors and will procure that the Group Companies shall sign or submit the
outstanding returns to the relevant Taxation Authorities without amendment or
with such amendments as the Covenantors may reasonably require, provided that
nothing in this clause 7 shall oblige the Buyer to sign any outstanding returns
that are not true and accurate in all material respects.
7.2 The Covenantors shall give such information and assistance and supply or
procure to be supplied all such information, documents and other papers and
shall facilitate access to such books and records as may be reasonably required
by the Buyer to agree the outstanding returns with the relevant Taxation
Authorities.
8. AMOUNT OF A LIABILITY TO TAXATION
The amount of a Liability to Taxation in respect of which the Covenantors
becomes liable to pay an amount to the Buyer under clause 2 shall be as follows:
8.1 in the case of an A Liability, the amount of such payment;
8.2 in the case of a B Liability, the amount of Taxation saved as a
consequence of the application of the Relief;
8.3 in the case of a C Liability, the amount of the repayment which would
otherwise have been obtained or the amount by which such repayment is reduced,
as the case may be;
8.4 in the case of a D Liability:
8.4.1 in respect of the loss or non-availability of a Relief other than the
Corporation Tax Saving, the amount of Taxation which would have been saved had
such Relief been available; or
8.4.2 in respect of a D Liability arising from the loss or non-availability
of the a Relief comprising the whole or part of the Corporation Tax Saving, an
amount equal to 30% of the amount of the Assumed Deduction that is lost or
proves to be unavailable, provided that the aggregate amount of all such D
Liabilities shall not exceed 3,106,000 pounds.
9. DUE DATE FOR PAYMENT
9.1 Where a claim under this Deed involves an A Liability, the Covenantors
shall pay to the Buyer the amount which is required to be paid by them on or
before the date which is the later of five Business Days after demand is made by
the Buyer and the fifth Business Day prior to the date on which the Taxation in
question has to be paid to the relevant Taxation Authority in order to avoid
incurring a liability to interest or a charge or penalty in respect of that
Liability to Taxation.
9.2 In all other cases where there is a Liability to Taxation to which this
Deed applies and in a case where any other amount is claimed by the Buyer under
this Deed (other than a D Liability resulting from the non-availability or loss
of a Relief that comprises the whole or part of the Corporation Tax Saving) ,
the Covenantors shall pay to the Buyer the amount or amounts which are required
to be paid by them on or before the date which is the later of five Business
Days after demand is made by the Buyer to the Covenantors and the fifth Business
Day prior to the date on which the relevant Group Company is liable to pay the
Taxation which, but for the loss, set-off or non-availability of the right to
repayment or Relief (as appropriate) it would not have been liable to pay.
9.3 Where a claim under this Deed involves a D Liability which results from
the loss or non-availability of a Relief that comprises the whole or part of the
Corporation Tax Saving, the Covenantors shall pay to the Buyer the amount which
is required to be paid by them on or before the date which is the later of (i)
subject to the Covenantor's rights under Clause 6 (Conduct of Claims), the fifth
Business Day after the date on which for any reason it is finally determined
that all or part of the Assumed Deduction has been lost or is unavailable and
(ii) five Business Days after demand is made by the Buyer to the Covenantors.
For the purposes of this clause 9.3, the phrase "finally determined" shall,
where the Covenantors have waived or exhausted their rights under Clause 6,
include the Company agreeing with the Inland Revenue the market value of the
shares acquired on the exercise of the Centaur Options.
9.4 Any sums not paid by the Covenantors on the date specified in clauses
9.1, 9.2 or 9.3 for payment of the same shall bear interest (which shall accrue
from day to day after as well as before any judgment for the same) from the due
date for payment at the rate per annum of the base rate of National Westminster
Bank Plc applicable from time to time (or in the absence of such rate at such
similar rate as the Buyer shall select) plus 3% calculated on a daily basis for
the period from the relevant due date for payment up to and including the date
of actual payment.
10. BUYER COVENANT
10.1 The Buyer covenants to pay to the Covenantors an amount equal to any
liability to Taxation of any of the Covenantors or any person connected with any
of the Covenantors which is also a liability of another person and which is
payable by any of the Covenantors or any such connected person by reason of (i)
the other person failing to discharge such liability or (ii) any Covenantors or
any such connected person being at any time before Completion a member of the
same group as such other person or otherwise connected with or related to such
other person for Taxation purposes.
10.2 The covenant contained in paragraph 10.1 shall:
10.2.1 extend to any costs reasonably and properly incurred by the
Covenantors or any such other person in connection with such Taxation or a claim
under paragraph 10.1; but
10.2.2 not apply to Taxation to the extent that the Buyer could claim
payment in respect of it under this Deed.
10.3 The Buyer shall pay any amount which is required to be paid by it
pursuant to clause 10.1 on or before the fifth Business Day before the date on
which the Taxation in question has to be paid to the appropriate Taxation
Authority in order to avoid incurring a liability to interest or a charge or
penalty in respect of that Taxation or, if later, not more than five Business
Days following the date on which the Covenantors notify the Buyer of its
liability to make such payment.
11. GENERAL
11.1 Any remedy or right conferred by this Deed for the breach of this Deed
shall be in addition to and without prejudice to any other right or remedy
available to it.
11.2 No failure or delay or time or indulgence given by any party in or
before exercising any remedy or right under or in relation to this Deed shall
operate as a waiver of the same nor shall any single or partial exercise of any
remedy or right preclude any further exercise of the same or the exercise of any
other remedy or right.
11.3 No waiver by any party of any requirement of this Deed or of any remedy
or right under this Deed shall have effect unless given by notice in writing
signed by such party. No waiver of any particular breach of the provisions of
this Deed shall operate as a waiver of any repetition of such breach.
11.4 This Deed may be executed in two or more counterparts and execution by
each of the parties of any one of such counterparts will constitute due
execution of this Deed.
11.5 The parties shall, and shall procure that any necessary third party
shall, do, execute and perform all such further deeds, documents, assurances,
acts and things as may be necessary to give effect to this Deed.
11.6 If this Deed, or any part of it, is or becomes to any extent invalid,
illegal, unenforceable or void by virtue of any particular provision or
indemnity which it contains, then this Deed shall have effect as though that
provision or indemnity were removed.
11.7 No provision of this deed shall be enforceable pursuant to the
Contracts (Rights of Third Parties) Act 1999 by any third party.
12. NOTICES
12.1 Any notice to be given under this Deed shall be in writing and signed
by or on behalf of the person giving it. Except in the case of personal
service, any notice shall be sent or delivered to the party to be served at the
address set out in the Schedule (marked: "for the attention of the Company
Secretary").
12.2 Service of a notice must be effected by one of the following methods:
12.2.1 in person on a director or the secretary and shall be treated as
served at the time of such service;
12.2.2 by prepaid first-class post (or by airmail if from one country
to another) and shall be treated as served on the second (or if by airmail the
fourth) Business Day after the date of posting. In proving service it shall be
sufficient to prove that the envelope containing the notice was correctly
addressed, postage paid and posted; or
12.2.3 by delivery of the notice through the letterbox of the party to
be served and shall be treated as served on the first Business Day after the
date of such delivery.
12.3 A party may notify any other party of a change to the details referred
to in clause 12.1 provided that such notification is made in accordance with
clause 12.2 and shall only become effective on the date falling five Business
Days after service of such notice (or, if later, on the date specified in such
notice).
12.4 The Covenantors irrevocably authorise and appoint the Seller's
Solicitors (or the firm which at the time in question has succeeded to it and
carries on its practice) as its agent for service of notices and/or proceedings
in relation to any matter arising out of or in connection with this Deed and
service on such agent shall be deemed to be service on the Covenantors.
13. APPLICABLE LAW AND JURISDICTION
13.1 This Deed and the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of England.
13.2 The parties irrevocably submit to the non-exclusive jurisdiction of the
courts of England and Wales in respect of any claim, dispute or difference
arising out of or in connection with this Deed provided that nothing contained
in this clause 13 shall be taken to have limited the right of the Buyer to
proceed in the courts of any other competent jurisdiction.
14. ASSIGNMENT
14.1 No party shall be entitled to assign, transfer, or create any trust in
respect of the benefit or burden of any provision of this Deed without the prior
written consent of the other parties.
AS WITNESS this Deed has been executed as a deed by or on behalf of the parties
the day and year first before written.
THE SCHEDULE
PART I
COVENANTORS
NAME ADDRESS/REGISTERED OFFICE
--------------------------------------------------------------------------------
Hartrow Manor
Lydeard St Lawrence
Taunton
Somerset TA4 3PZ
Graham Sherren
350 Park Avenue
New York
NY 10022
U.S.A.
VS & A Communications Partners II, LP
One Rockefeller Plaza
New York
NY 10020
Griffin Land and Nurseries Inc. . . . U.S.A.
PART II
BUYER
NAME REGISTERED OFFICE
--------------------------------------------------------------------------------
St Giles House
50 Poland Street
Centaur Holdings Plc London W1F 7AX
PART III
GROUP COMPANIES
NAME REGISTERED OFFICE
--------------------------------------------------------------------------------
Centaur Communications Limited St. Giles House
50 Poland Street
London W1F 7AX
Ascent Publishing Limited St. Giles House
50 Poland Street
London W1F 7AX
Centaur Publishing Limited St. Giles House
50 Poland Street
London W1F 7AX
Chiron Communications Limited St. Giles House
50 Poland Street
London W1F 7AX
Compuvest Limited St. Giles House
50 Poland Street
London W1F 7AX
Hali Publications Limited St. Giles House
50 Poland Street
London W1F 7AX
I.F.A. Events Limited St. Giles House
50 Poland Street
London W1F 7AX
Key Market Research Limited St. Giles House
50 Poland Street
London W1F 7AX
Market Access Data Limited St. Giles House
50 Poland Street
London W1F 7AX
Market Research Exhibitions Limited St. Giles House
50 Poland Street
London W1F 7AX
Marketing & Media Conferences Limited St. Giles House
50 Poland Street
London W1F 7AX
Marketing Week Communications Limited St. Giles House
50 Poland Street
London W1F 7AX
Marktab Plc St. Giles House
50 Poland Street
London W1F 7AX
Mayfield Publishing Limited St. Giles House
50 Poland Street
London W1F 7AX
MCP (Publishing) Limited St. Giles House
50 Poland Street
London W1F 7AX
Media Magazines Limited St. Giles House
50 Poland Street
London W1F 7AX
Moorgate Nominees Limited St. Giles House
50 Poland Street
London W1F 7AX
Oguz Press Limited St. Giles House
50 Poland Street
London W1F 7AX
Perfect Information Inc. 2711 Centerville Road
Suite 400, City of Wilmington
County of New Castle
State of Delaware
Perfect Information Limited St. Giles House
50 Poland Street
London W1F 7AX
Process Communications Limited St. Giles House
50 Poland Street
London W1F 7AX
Spicers Centre for Europe Limited St. Giles House
50 Poland Street
London W1F 7AX
Sporting Events Publishers Limited St. Giles House
50 Poland Street
London W1F 7AX
Synergy Real Time Systems Limited St. Giles House
50 Poland Street
London W1F 7AX
Synergy Software Limited St. Giles House
50 Poland Street
London W1F 7AX
Synergy Software Solutions (Asia) Limited 39th Floor
One Pacific Place
Admiralty
Hong Kong
Synergy Software Solutions Limited St. Giles House
50 Poland Street
London W1F 7AX
Synsoft Group Limited St. Giles House
50 Poland Street
London W1F 7AX
Yelbric Limited St. Giles House
50 Poland Street
London W1F 7AX
Your Business Magazine Limited St. Giles House
50 Poland Street
London W1F 7AX
SIGNED as a deed )
by GRAHAM SHERREN ) Graham Sherren
in the presence of )
Witness
Signature: Aaron Stocks
Address: 10 Snow Hill
London
Occupation: Solicitor
SIGNED as a deed by )
)
in its capacity as manager of )
VS&A COMMUNICATIONS PARTNERS )
II LP acting by: )
Marco Sodi
Director
Morgan Callagy
Director/Secretary
SIGNED as a deed by )
GRIFFIN LAND AND )
NURSERIES INC acting by: )
Frederick M Danziger
Director
Anthony Galici
Secretary
SIGNED as a deed by )
CENTAUR HOLDINGS PLC )
acting by: )
Colin Morrison
Director
Patrick Taylor
Director/Secretary