AGREEMENT TO BUY THE SHARES IN CBS BUTLER HOLDINGS LIMITED |
Mishcon de Reya LLP
Africa House
70 Kingsway
London WC2B 6AH
E-mail: nick.davis@mishcon.com
23715336.12
No.HeadingPage
1. | DEFINITIONS AND INTERPRETATION1 |
|
2. | SALE AND PURCHASE8 |
|
3. | Purchase price9 |
|
4. | PARENT COMPANY GUARANTEE11 |
|
5. | Completion Accounts13 |
|
6. | REFERENCES TO EXPERT14 |
|
7. | WARRANTIES15 |
|
8. | COMPLETION17 |
|
9. | Right of set-off19 |
|
10. | Announcements and CONFIDENTIALITY21 |
|
11. | RESTRICTIve covenants22 |
|
12. | RELEASE OF GUARANTEES AND INDEMNITIES25 |
|
13. | TAX COVENANT26 |
|
14. | SPECIFIC PAYMENT COVENANTS26 |
|
15. | Sellers' representative26 |
|
16. | notices and SERVICE of proceedings27 |
|
17. | Costs28 |
|
18. | Assignment and Successors28 |
|
19. | Continuing agreement29 |
|
20. | Further assurance29 |
|
21. | Entire agreement30 |
|
22. | remedies, variation and waiver30 |
|
23. | Severable provisions31 |
|
24. | Payments31 |
|
25. | withholding and grossing up32 |
|
26. | THIRD PARTY RIGHTS32 |
|
27. | Counterparts32 |
|
28. | Law and jurisdiction32 |
|
Schedule 1 – THE SELLERS AND THE SELLERS' SHAREHOLDINGS AND OPTION HOLDERS | 34 |
|
Schedule 2 – THE COMPANY AND THE SUBSIDIARY | 40 |
|
Part A – The Company40
Part B – The Subsidiary40
Schedule 3 – WARRANTIES | 41 |
|
Schedule 4 – SELLERS' LIMITS | 75 |
|
Schedule 5 – COMPLETION | 84 |
|
1
Part A – Documents to be delivered by the Sellers84
Part B – Decisions to be taken at Completion by the directors of the Target Group Companies85
Part C – Other action to be taken by the Sellers and other items to be delivered by the Sellers86
Part D – Documents to be delivered and actions to be taken by the Buyer86
Part E – Documents to be delivered and actions to be taken by Staffing 36087
Schedule 6 – THE PROPERTY | 88 |
|
Part A – Property88
Part B – Encumbrances to which the Properties are subject88
Schedule 7 – TAX SCHEDULE | 89 |
|
Part A – Definitions and Interpretation89
Part B – Tax Covenant93
Part C – Tax Warranties99
Part D – Tax Administration107
Schedule 8 –COMPLETION ACCOUNTS | 109 |
|
Part A – Basis of Preparation of the Completion Accounts109
Part B – The Specific accounting policies and procedures for the Completion accounts109
Part C – Format of the Completion Accounts111
Schedule 9 – BUYER SHARES | 118 |
|
Schedule 10 – EARN-OUT | 122 |
|
PART A – Earn-out Provisions122
PART B – Basis of Preparation of the Relevant Accounts129
PART C – Format of the Relevant Accounts130
Schedule 11 – BUYER & STAFFING 360 WARRANTIES | 137 |
|
2
THIS AGREEMENT is dated as of the 15th of September 2017
PARTIES
(1) | The persons whose names and addresses are set out in column (1) of the table in Part A of Schedule 1 (the Sellers and each a Seller). |
(2) | LONGBRIDGE RECRUITMENT 360 LIMITED a company registered in England and Wales under number 06745176 whose registered office is at 3a London Wall Buildings, London Wall, London EC2M 5SY (the Buyer). |
BACKGROUND
(A) | The Buyer has agreed terms with the Sellers and Option Holders for the acquisition of the entire issued share capital of CBS Butler Holdings Limited (the Company). |
AGREED TERMS
Accountants means the Sellers' Accountants and the Buyer's Accountants;
Accounts means the Individual Accounts and the Target Group Accounts;
Accounts Date means 31 December 2016;
Actual Net Assets means the aggregate assets less the aggregate liabilities of the Target Group (calculated on a consolidated basis) as derived from the Completion Accounts;
Agreed Form means, in relation to any document, in the form agreed by or on behalf of the parties to this agreement;
Assigned Lease means the lease of the Assigned Property dated 28 September 2007 made between (1) Crescent Trustees Limited and David Kennedy and (2) CBS Butler;
Assigned Property means the leasehold property known as The Old Mill, Kings Mill, Kings Mill Lane, South Nutfield, Redhill, RH1 5NB registered at the Land Registry under title number SY768048;
Associate means, in relation to any person, a person who is connected with that person determined in accordance with section 1122 of the Tax Act;
Business Day means any day on which clearing banks generally are open for business in the City of London excluding Saturdays or Sundays;
BWIL means Butler Wells International Limited, a company incorporated in England (Company No. 08584289);
Buyer’s Group means Staffing 360 and the Buyer and any subsidiaries and subsidiary undertakings from time to time of Staffing 360 and/or the Buyer and any holding company and parent undertaking from time to time of Staffing 360 and/or the Buyer and any subsidiaries and subsidiary undertakings from time to time of any such holding company or parent undertaking, and member of the Buyer's Group will be construed accordingly;
Buyer's Accountants means Menzies LLP of Lynton House, 7 – 12 Tavistock Square, London WC1H 9LT or their successors in business or any other firm of chartered accountants appointed by the Buyer and notified to the Sellers for the purposes of this agreement;
Buyer's Bank Account means HSBC Bank plc, sort code: 40-11-60 and account number: 30462853;
Buyer Shares means 431,860 common stock of par value US$0.00001 each in the capital of Staffing 360 issued and allotted to the Sellers in accordance with clauses 3.2.2, 3.4 and 8.4.2 and Schedule 9;
Buyer's Solicitors means Mishcon de Reya LLP, Africa House, 70 Kingsway, London WC2B 6AH or their successors in business or any other firm appointed as solicitors by the Buyer for the purposes of this agreement;
CBS Butler means CBS Butler Limited (Company No. 01654251);
Cash Bonuses means a sum of £132,463 (which includes a sum equal to all PAYE and all employee and employer National Insurance Contributions due in relation to such Cash Bonuses) to be paid (net of all taxes) by CBS Butler after Completion to the Cash Bonus Employees, as set out opposite their respective names in the table in Part C of Schedule 1;
Cash Bonus Employees means the persons whose names are set in the table in Part C of Schedule 1;
Claim means a Warranty Claim, an Indemnity Claim, RC Claim and/or a Tax Claim;
Claim for Tax has the meaning given to it in the Tax Schedule;
Companies Act or the Act means the Companies Act 2006;
Company's Bank Account means HSBC Bank, account name: CBS Butler Ltd, sort code: 40-18-22 and account number: 01821954;
Completion means the performance by the parties of the obligations (to the extent not previously waived under this agreement) assumed by them under clauses 8.2, 8.3 (other than clauses 8.3.3 and 8.3.4), 8.4 (other than clause 8.4.4) and 8.5. For the avoidance of doubt, Completion shall be deemed to have occurred notwithstanding that the events referred to in clauses 8.3.3, 8.3.4 and/or 8.4.4 have not occurred (and no person waives any of their rights pursuant to such clauses);
Completion Accounts means the accounts for the Completion Period (and a net assets statement as at 31 August 2017 setting out the amount of the Actual Net Assets as derived from the Completion Accounts) prepared and agreed or determined in accordance with clause 5 and Schedule 8;
Completion Period means the period starting on 1 January 2017 and ending on 31 August 2017 (both dates inclusive);
Conduct Regulations means the Conduct of Employment Agencies and Employment Businesses Regulation 2003;
Confidential Information means secret or confidential, commercial, financial, marketing, technical or other information of any Target Group Company and know-how relating to the Target Group's projects, or the working of any of the processes or inventions it owns or uses including details of its research projects or its business (including its organisation and staff involved), lists and details of customers, prices, and commercial relationships and negotiations and any information in respect of which any Target Group Company is bound by an obligation of confidence to a third party, in each case together with any reproductions of the information in any form or medium or any part(s) of it;
Contractor as defined in paragraph 25.1 of Schedule 3;
Data Room means the virtual data room hosted by Gateley Plc and titled "Project Louisiana" comprising the copies of documents and other information relating to the Target Group Companies and/or their businesses as at 5pm on 13 September 2017 and made available by or on behalf of the Sellers as listed in the Data Room index attached to the Disclosure Letter;
Deed of Assignment means an assignment of the Assigned Lease from CBS Butler to Bulletpoint Consult Limited in the Agreed Form;
Deed of Variation means the deed of variation of the Lease varying the repair covenant, including a break clause after 15 years and replacing the 2017 rent review with a rent review in 2020 in the Agreed Form;
Deferred Consideration means the sum of £150,000;
Disclosure Disk means the USB memory stick containing the Disclosure Documents, which accompanies and forms part of the Disclosure Letter;
Disclosure Documents means the documents contained in the Data Room as listed in the Data Room index attached to the Disclosure Letter;
Disclosed means fairly disclosed in such a manner so as to enable a reasonable buyer to identify the nature of the matter disclosed and to make a reasonably informed assessment of the effect of the matter disclosed;
Due Proportion means the respective proportions, as shown opposite the name of each Seller, in column 6 of Part A of Schedule 1;
Disclosure Letter means the letter dated today in the Agreed Form from the Sellers to the Buyer relating to the Warranties, and which is delivered (together with the Disclosure Disk) to the Buyer or the Buyer's Solicitors immediately before the execution of this agreement (and which includes the Disclosure Documents, which shall be deemed to form part of the Disclosure Letter);
Earn-out Payment means that part of the Purchase Price to be determined and paid after Completion by the Buyer to the Sellers as provided in clauses 3.1 and 3.7 and Schedule 10;
Encumbrance means and includes any right, claim, interest or equity of any person (including any right to acquire, option, right of pre-emption or right of conversion) or any mortgage, charge (whether fixed or floating), pledge, lien or assignment or any other encumbrance, priority or security interest or arrangement over or in the relevant property;
Exchange Rate means for a particular currency for a particular day, the rate for the conversion of that currency into £ sterling which appears on the Bloomberg page "Foreign Exchange Cross Rates" at 15:30, London time, on that day for the required currency pair;
Event has the meaning given to it in the Tax Schedule;
Expert has the meaning given in clause 6;
FRS102 means the Financial Reporting Standard for Companies in the UK and Republic of Ireland issued by the Financial Reporting Council and in force for the accounting period ending on the Accounts Date;
group in relation to an undertaking, means that undertaking, any subsidiary undertaking or parent undertaking of that undertaking and any subsidiary undertaking of any parent undertaking of that undertaking and member of the group includes any undertaking in the group;
Indemnity Claim means any claim under the indemnities in clause 14 (Specific Payment Covenants);
Individual Accounts or the CBSBL Accounts means the audited financial statements of CBS Butler for the period ended on the Accounts Date, including the statement of financial position, statement of comprehensive income, statement of changes in equity, notes and directors' and auditors' reports (a copy of which is set out at Tab 4.60 of the Data Room);
Initial Cash Payment means the sum of £11,928,685;
Initial Consideration has the meaning given in clause 3.2;
Insolvency Proceedings means any formal insolvency proceedings whether in or out of court, including proceedings leading to any form of bankruptcy, liquidation, administration, receivership, arrangement or scheme with creditors, moratorium, stay or limitation of creditors' rights, interim or provisional supervision by a court or court appointee or any distress, execution or other similar process levied; or any winding up, striking off or dissolution (whether or not due to insolvency); or any event analogous to any of those events in any jurisdiction;
Joint Announcement means the joint announcement by the Sellers and the Buyer of the execution of this agreement in the Agreed Form;
Lease has the meaning given in paragraph 27 (Property) of Schedule 3 (Warranties);
Licence to Assign means the licence pursuant to which the Deed of Assignment is permitted in the Agreed Form;
Life Assurance Schemes means the group life cover provided by Ellipse, the keyman level term assurance cover provided by Zurich, the group income protection cover provided by Unum and every other arrangement disclosed in the Disclosure Letter in relation to paragraph 26 (Pensions) of Schedule 3;
Management Accounts means the unaudited statement of financial position and statement of comprehensive income of CBS Butler Limited for the seven month period ended on the Management Accounts Date, a copy of which is set out at Tab 4.62 of the Data Room;
Management Accounts Date means 31 July 2017;
Net Asset Shortfall means an amount (in GB Pounds Sterling) calculated in accordance with clause 5.9;
NASDAQ means the NASDAQ stock market;
Options means the share options granted to the Option Holders pursuant to the Option Scheme in respect of B ordinary shares of £0.10 each in the capital of the Company;
Option Holders means those persons whose names and addresses are set out in Part B of Schedule 1;
Option Holder Sale Agreements means the agreements in the Agreed Form pursuant to which each Option Holder will transfer to the Buyer at Completion such number of Option Shares as is set out opposite his name in Part B of Schedule 1 for cash and common stock of par value of $0.00001 each in the capital of Staffing 360;
Option Scheme means the CBS Butler Holdings Limited Enterprise Management (EMI) Scheme dated February 2016, pursuant to which options have been granted to the Option Holders to acquire shares in the capital of the Company;
Option Shares means the 256,395 B ordinary shares of £0.10 each in the capital of the Company to be allotted and issued to the Option Holders following the exercise of their Options pursuant to the Option Scheme on or prior to the date of this agreement as detailed in column 3 of the table in Part B of Schedule 1;
Outstanding Debt means the following amounts (including all principal and interest) owed by each of the following Sellers to CBS Butler:
David Leyshon: £1,656,900.17;
Alison Leyshon: £4,952.34;
David Kennedy: £112,545.70;
Simon Bartington: £1,744.74; and
Pension Schemes means the group personal pension scheme administered by Scottish Widows, the occupational work place pension scheme known as the People’s Pension and every other arrangement disclosed in the Disclosure Letter in relation to paragraph 26 (Pensions) of Schedule 3;
Purchase Price has the meaning given in clause 3;
Prescribed Rate means the base rate of National Westminster Bank plc from time to time plus 3 per cent;
Property has the meaning given in paragraph 27 of Schedule 3;
RC Claim means a claim under clause 11 (Restrictive Covenants);
Sellers' Accountants means Saffery Champness LLP or their successors in business or any other firm of chartered accountants appointed by the Sellers and notified to the Buyer for the purposes of this agreement;
Sellers' Representative means David Leyshon or any other person with a postal address in the United Kingdom as at least four of the five Sellers or the Sellers' Solicitors notifies to the Buyer by at least 5 Business Days prior written notice with express reference to this agreement;
Sellers' Solicitors means Gateley Plc, 1 Paternoster Square, London EC4M 7DX or their successors in business or any other firm appointed as solicitors by the Sellers for the purposes of this agreement;
Sellers' Solicitors' Bank Account means Bank of Scotland plc, sort code: 12-08-81, account number: 00553357, IBAN No: GB57 BOFS12088100553357 and Swift Code: BOFSGB21258;
Shares means the 1,325,005 A ordinary shares of £0.10 each and 300,000 B ordinary shares of £0.10 each in the capital of the Company and owned by the Sellers as set out opposite their respective names in column 3 of the table in Part A of Schedule 1 (each a Share) being the entire issued share capital of the Company as at Completion owned by the Sellers (excluding, for the avoidance of doubt, the Option Shares);
Subsidiary means the subsidiary of the Company at the date of this agreement, details of which are set out in Part B of Schedule 2;
Target Group Accounts means the audited financial statements of the Company and the audited consolidated financial statements of the Company, the Subsidiary and BWIL for the period ended on the Accounts Date, including the consolidated statement of financial position, consolidated statement of comprehensive income, consolidated statement of cash flows, consolidated statement of changes in equity, notes and directors' and auditors' reports, a copy of which is set out at tab 4.61 of the Data Room;
the Target Group means the Company and the Subsidiary and Target Group Company means any of them;
Target Net Asset Amount means the amount of £3,838,875;
Taxation or Tax has the meaning given to it in the Tax Schedule;
Tax Act means the Corporation Tax Act 2010;
Tax Claim means any claim by the Buyer under the Tax Covenant or any of the Tax Warranties;
Tax Covenant means the covenants set out in paragragh 1 of Part B of the Tax Schedule;
Tax Schedule means Schedule 7;
Tax Statute has the meaning given to it in the Tax Schedule;
Tax Warranty means any warranty set out in Part C of the Tax Schedule and Tax Warranties will be construed accordingly;
TCGA has the meaning given to it in the Tax Schedule;
Temporary Worker as defined in Paragraph 25.1 of Schedule 3;
Title Claim means a claim by the Buyer for breach of any of the Warranties set out at paragraphs 1 and 2 of Schedule 3;
Transitional Services Agreement means a transitional services agreement in the Agreed Form between Bulletpoint Consult Limited (Company number: 10886881) and the Buyer relating to the transitional services to be provided by Bulletpoint Consult Limited and David Rhys Leyshon to the Target Group following Completion;
undertaking, subsidiary undertaking and parent undertaking have the meanings set out in sections 1161 and 1162 of the Companies Act, and subsidiary and holding company have the meanings set out in section 1159 of the Companies Act ;
United Kingdom means the United Kingdom of Great Britain and Northern Ireland;
US$ means the lawful currency of the United States of America;
Warranties means the warranties contained in Schedule 3 (Warranties) and in Part C of the Tax Schedule and references to Warranty shall be construed accordingly; and
Warranty Claim means a claim for breach of Warranty.
1.6 | The headings are for ease of reference only and do not affect the interpretation of this agreement. |
1.8 | Subject to paragraphs 1.4 and 1.5 of Schedule 4 (Sellers’ Limits), obligations and liabilities assumed by more than one person are assumed jointly and severally unless otherwise stated. |
2.2 | The Sellers covenant that the Shares and the Option Shares together constitute the whole of the allotted and issued share capital of the Company. |
| 2.3.1 | the Shares shown opposite his name in column (3) of Part A of Schedule 1 are fully paid (or credited as fully paid); |
2.5 | Each Seller further waives any pre-emption or similar right which may exist in relation to the sale and purchase of the Option Shares being sold by the Option Holders pursuant to the Option Holder Sale Agreements whether under the articles of association of the Company or otherwise. |
3.3 | The Initial Cash Payment in the sum of £11,928,685, will be paid or satisfied in full on Completion by the Buyer in accordance with clause 8.3 as follows: |
| 3.3.1 | paying the sum of £10,078,296.17 by telegraphic transfer of immediately available funds to the Sellers' Solicitors' Bank Account; and |
Alison Leyshon: £4,952.34;
David Kennedy: £112,545.70;
Simon Bartington: £1,744.74; and
3.9 | Any amount payable by any party under this agreement and not paid on the due date for payment shall bear interest which shall accrue: |
| 4.2.6 | the, liquidation, administration or insolvency of, the Buyer (or the Buyer suffering or being subject to any other Insolvency Proceedings), |
Staffing 360 shall nevertheless be liable to the Sellers, in respect of that purported obligation or liability as if that obligation or liability were fully valid and enforceable and Staffing 360 was the principal obligor in respect of that obligation or liability.
| 4.3.1 | the Sellers compounding or entering into any compromise, settlement or arrangement with the Buyer, any co-guarantor or any other person; |
| 4.3.4 | any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of the security; |
| 4.3.5 | any legal limitation, disability or other circumstance relating to the Buyer or any unenforceability or invalidity of any obligation of the Buyer under this agreement; |
| 4.3.6 | any unenforceability, illegality or invalidity of any obligation of any person under this agreement or any other document; or |
| 4.3.7 | any other matter or thing which, but for this provision, might exonerate or affect the liability Staffing 360. |
4.4 | The Sellers shall not be obliged to take any steps to proceed against or to enforce any right, security or remedy against the Buyer or any other person before enforcing the Guarantee. |
4.6 | Until the full and final discharge of all obligations and liabilities (both actual and contingent) which are the subject of the Guarantee: |
| 4.6.1 | in the event of the liquidation or insolvency or the administration of the Buyer, Staffing 360 waives all of its rights of subrogation, reimbursement and indemnity against the Buyer and all rights of contribution against any co-guarantor and agrees not to demand or accept any security from the Buyer or any co-guarantor in respect of any such rights and not to prove in competition with the Sellers in the liquidation or insolvency or the administration of the Buyer or any such co-guarantor; and |
| 4.6.2 | in the event of the liquidation or insolvency or the administration of the Buyer, Staffing 360 agrees that it will not claim or enforce payment (whether directly or by set-off, counterclaim or otherwise) of any amount which may be or has become due to Staffing 360 by the Buyer, any co-guarantor or any other person liable to the Sellers in respect of the obligations guaranteed by this clause 4 if and so long as the Buyer is in default under this agreement. |
4.8 | The Guarantee contained in clause 4.1 will remain in full force and effect until all the amounts and obligations referred to in clause 4.1 have been irrevocably paid and discharged in full. |
| 6.3.4 | the Sellers' Representative and the Buyer may make representations to the Expert in writing (and each will deliver a copy of their representations to the other party at the same time); and |
| 6.3.5 | except as set out in this clause 6, the Expert may decide on the procedure to be followed in reaching his decision. |
7.1 | Except as Disclosed, the Sellers warrant to the Buyer as at Completion as set out in Schedule 3 (Warranties) and Part C of the Tax Schedule. |
7.4 | Except as Disclosed and except as set out in clause 7.5, Schedule 4 (Sellers’ Limits) or the Tax Schedule, nothing of which the Buyer may have knowledge at the date of this agreement |
(including constructive, implied or imputed knowledge) will prejudice any claim which the Buyer may bring or reduce any amount recoverable by the Buyer under the Warranties. |
7.9 | Each Warranty is separate and, unless specifically otherwise provided, is not limited or affected by any other Warranty. |
8.1 | Completion will take place at the offices of the Buyer's Solicitors (or such other place as the parties may agree) immediately after execution of this agreement. |
8.3 | Conditional upon performance by the Sellers of their obligations under clause 8.2, on Completion the Buyer will (and Staffing 360 will procure that the Buyer will): |
| (a) | pay the sum of £10,078,296.17 by telegraphic transfer to the Sellers' Solicitors' Bank Account; and |
| (i) | David Leyshon: £1,656,900.17; |
| (ii) | Alison Leyshon: £4,952.34; |
| (iii) | David Kennedy: £112,545.70; |
| (iv) | Simon Bartington: £1,744.74; and |
| (v) | John Docherty: £74,245.88; |
8.4 | Conditional upon performance by the Sellers of their obligations under clause 8.2, on Completion Staffing 360 will: |
| 8.4.2 | allot and issue to each Seller the number of Buyer Shares set out opposite their respective names in column 5 of Part A of Schedule 1; |
| 8.4.3 | allot and issue such number of the common stock of par value US$0.00001 each in the capital of Staffing 360 to be issued and allotted to each of the Option Holders for the sale of their Option Shares to the Buyer in accordance with the Option Holder Sale Agreements; and |
| 8.4.4 | deliver to each Seller within 21 days of Completion a properly executed stock certificate for the Buyer Shares issued to that Seller. |
8.5 | On completion Crescent Trustees Limited and David Leyshon and CBS Butler shall complete the Deed of Variation. |
8.9 | In the event the Deed of Assignment is not completed by the parties thereto on the date of Completion, it is agreed that Bulletpoint Limited shall be responsible for all rents and outgoings payable under the Assigned Lease in respect of the period from and including the date of Completion until completion of the Deed of Assignment, and it is further agreed that CBS Butler will be released from all obligations, liabilities, actions, proceedings, costs, claims, outgoings, demands or expenses arising out of the Assigned Lease or relating to the Assigned Property relating to or in respect of the period following Completion. |
8.10 | Within one month following Completion, David Kennedy and David Leyshon will procure that CBS Butler Qatar LLC changes its name to such other name that does not include the words “CBS” and/or “Butler”. |
9.1 | Unless the context otherwise requires, the following definitions shall apply in respect of this clause 9: |
Counsel means a counsel appointed under clause 9.4;
Determined Claim means any claim by the Buyer or any Target Group Company against the Sellers under this agreement (including, without limitation, any amount payable by the Buyer under clause 3.5):
| (b) | in respect of which final judgment has been obtained from a court of competent jurisdiction, which judgment is not (or no longer) appealable; |
Estimated Amount means the amount estimated by Counsel under clause 9.5.3 (or agreed in writing by the Buyer and the Sellers’ Representative); and
Undetermined Claim means any claim by the Buyer or Target Group Company against the Sellers under this agreement (including, without limitation, any amount payable by the Buyer under clause 3.5) which has been notified to the Sellers under this agreement but which is not a Determined Claim.
which, in either case, is subsisting and has not been settled in full by the Sellers at the time on which any payment is due from the Buyer to the Sellers.
| 9.5.1 | prepare a written opinion and give notice of that opinion (including Counsel's reasons) to the parties within 20 Business Days of the Counsel's appointment; |
9.8 | The Counsel shall be deemed to act as an expert and not as an arbitrator. Other than in the case of fraud or manifest error, the Counsel’s decision shall be final and binding on the parties. |
10.2 | The Sellers will not (and will procure that none of the Sellers' Associates will) disclose to any person or make use of any Confidential Information. |
10.5 | The obligations of confidence set out in clauses 10.1, 10.2, 10.3 and 10.4 do not apply to the extent that disclosure is: |
| 10.5.3 | in connection with an application for a tax return, tax filing or tax clearance, grant or other concession; |
| 10.5.6 | to an adviser for the purpose of advising the Sellers and/or the Buyer in relation to this agreement or in relation to any document in the Agreed Form. |
Capacity means as agent, consultant, director, employee, owner, shareholder or in any other capacity;
Covenantor means each of the Sellers (and so that any reference to Covenantor in this clause 11 in relation to any particular Seller means that particular Seller);
Customer means any Person who or which at any time during the Relevant Period, to the Covenantor's knowledge, (i) was provided with goods or services by any Target Group Company; or (ii) was in the habit of dealing with any Target Group Company as a client or customer;
Investment means any holding as a bona fide investment of not more than five per cent of the total issued share capital in any company, whether or not its shares are listed or dealt in on any recognised investment exchange, as defined in section 285 of the Financial Services and Markets Act 2000;
Key Employee means any person (other than David Kennedy and David Leyshon) who immediately before Completion was employed or engaged by any Target Group Company at managerial level or above, or any other person (other than David Kennedy and David Leyshon) employed by any Target Group Company who had knowledge of Confidential Information or who could materially damage the interests of any Target Group Company if they were involved in any Capacity in any business which competes with any Restricted Business, and with whom the Covenantor had personal dealings during the Relevant Period;
Person means any person, firm, company or entity;
Prospective Customer means any Person to whom or which, during the period of six months before Completion, to the Covenantor's knowledge, any Target Group Company had submitted a tender, made a pitch or presentation or with whom or which it was otherwise negotiating for the supply of goods or services;
Relevant Period means the period of 24 months ending on Completion;
Restricted Business means the business of providing recruitment services (including, without limitation, permanent and temporary contract recruitment services) in relation to the introduction and/or supply of engineering and ICT professionals primarily but not solely within the following industry sectors: namely aviation, process controls, defence and security, built environment, medical and life sciences, as carried out (in each case) by any Target Group Company as at Completion; and
Supplier means any Person who or which, to the Covenantor's knowledge was at any time during the Relevant Period a supplier of services or goods (other than utilities and goods or services supplied for administrative purposes) to any Target Group Company.
| 11.2.1 | be engaged, concerned or involved with, or interested in, any business which is (or intends to be) in competition with any Restricted Business; |
| (b) | any trade or service mark, business or domain name, design, logo or get-up which, at Completion, was or had been used by any Target Group Company; or |
| 11.4.2 | being engaged or concerned in any business carried on in geographical areas where that business is not in competition with any Restricted Business as carried on at Completion; or |
| 11.4.3 | being a shareholder of the Buyer or Staffing 360 or an employee of or consultant of or otherwise engaged by a Target Group Company or any member of the Buyer's Group; |
| 11.4.4 | carrying out his duties as a director or employee of, or a consultant to, or service provider to any member of the Buyer’s Group; or |
| 11.4.5 | complying with any obligations or enforcing any rights pursuant to this agreement or any Agreed Form document. |
indemnity be honoured or enforced (other than, in each case, any guarantees and indemnities pursuant to the Lease and/or any agreement entered into in connection with the Lease). |
12.3 | Nothing contained in this clause 12 shall prevent, limit, discharge, restrict or prejudice in any way, or constitute a waiver, discharge or release of: |
| 12.3.2 | a Seller’s (or any of his Associate's) rights or ability to enforce his rights, to bring a claim or defend a claim under or in connection with any this agreement or any Agreed Form document; |
| 12.3.3 | any accrued remuneration and other employment related emoluments payable to a Seller and/or any Associate of a Seller in respect of the period prior to Completion; |
| 12.3.4 | a Seller’s (or any of his Associate’s) payments, rights and claims under the Lease, and/or any agreement entered into in connection with the Lease and/or the Deed of Variation; or |
| 12.3.5 | a Seller's (or any of his Associate's) payments, rights and claims under the Assigned Lease and/or any agreement entered into in connection with the Assigned Lease and/or the Deed of Assignment. |
12.4 | For the purposes of this clause 12 a Seller shall not be deemed to be an Associate of any other Seller, or of a Target Group Company or of any Option Holder. |
The Tax Covenant will come into effect at Completion.
| 14.1.2 | the ongoing litigation claim in Italy against CBS Butler in connection with payments (in the aggregate amount of Euro 43,555) for services paid by Blue Panorama Airlines |
| S.p.a in Amministrazaione Strordinaria to CBS Butler (further details of which are set out at tab 10.2 of the Data Room). |
16.1 | Any notice or other communication given or made in connection with this agreement must be in writing, signed by or on behalf of the party giving it and in English. |
If receipt would under this clause be deemed to occur outside 9.30 a.m. to 5.30 p.m. (London time) on a Business Day (Working Hours) the notice or communication will instead be deemed to have been received at the start of the next period of Working Hours.
For the attention of: Brendan Flood
Address: 3a London Wall Buildings, London Wall, London EC2M 5SY; or
Email address: brendan.flood@staffing360solutions.com,
With a copy to: Mishcon de Reya LLP, Africa House, 70 Kingsway, London WC2B 6AH, marked for the attention of Nick Davis and a copy to Chris Lutzo at chris.lutzo@staffing360solutions.com;
With a copy to: Gateley Plc, 1 Paternoster Square, London EC4M 7DX, marked for the attention of Steven Raize;
For the attention of: David Leyshon
Address: Little Lodge, Woodhouse Lane, Holmbury St Mary, Dorking RH5 6NN;
With a copy to: Gateley Plc, 1 Paternoster Square, London EC4M 7DX, marked for the attention of Steven Raize; and
For the attention of: Brendan Flood
Address; 3a London Wall Buildings, London Wall, London EC2M 5SY;
Email address: brendan.flood@staffing360solutions.com,
With a copy to: Mishcon de Reya LLP, Africa House, 70 Kingsway, London WC2B 6AH, marked for the attention of Nick Davis and a copy to Chris Lutzo at chris.lutzo@staffing360solutions.com.
Except as otherwise expressly provided in this agreement, each party will pay its own costs and expenses incurred in relation to the negotiation, preparation and implementation of this agreement and the documents referred to in it.
18.2 | Subject to clause 18.1 and 18.3, the parties may not assign, sub-contract, hold on trust or otherwise transfer all or any part of the benefit of this agreement. |
18.3 | Subject to clauses 18.5 to 18.7, the Buyer may at any time assign, sub-contract, hold on trust or otherwise transfer all or any part of its rights and benefits under this agreement to: |
| 18.3.2 | by way of security to any bank or third party acting as lender to any Target Group Company, any member of the Buyer Group or any nominee of that bank or third party lender. |
This agreement (other than obligations which have already been performed) will remain in effect after Completion.
for any pre-contractual misrepresentation or negligent misstatement or otherwise in respect of any statement or representation made by or to any person (whether a party to this agreement or not) which is not expressly incorporated in this agreement. |
21.3 | No party will have any right, claim or remedy for any representation or statement made or incorporated in this agreement other than in contract. |
24.4 | Where a provision in this agreement provides that a payment be made by the Sellers to the Buyer, that payment will be treated as a reduction in the consideration for the Shares. |
The provisions of clauses 7.7, 9.1 and 11 are intended to benefit (but may be enforced only with the prior written consent of the Buyer by) each Target Group Company, and (in the case of clause 7.7), also its officers, agents and employees. Otherwise, only a party to this
agreement and any person of the type referred to in clause 18.1 has a right under the Contracts (Rights of Third Parties) Act 1999 to rely on or enforce any term of it. The parties may rescind, amend or vary any term of this agreement without the consent of any third party.
The parties may execute this agreement in any number of copies and on separate copies. Each executed copy will be an original and all the executed copies together form one agreement.
28.2 | Subject to clauses 5.5, 6 and 9.3 and paragraph 2.5 of PART A of Schedule 10, the parties irrevocably submit to the exclusive jurisdiction of the English Courts for any Dispute. |
28.3 | Each party irrevocably waives any objection to the English Courts being the forum to decide any dispute and shall not claim that the English Courts are not a convenient or appropriate forum. |
THE PARTIES have executed this agreement as a deed and delivered it on the date first set out above.
EXECUTED and DELIVERED as a DEED by DAVID RHYS LEYSHON in the presence of: | ) …/s/ David Rhys Leyshon....................... )
|
Witness signature /s/ Zum Mohammed
Witness name Zum Mohammed
Address Gateley plc No 1 Paternoster Square, London EC4M 7DX DX 824 London City Tel 0207 653 1600 Fax 0207 653 1600
Occupation Solicitor
|
|
EXECUTED and DELIVERED as a DEED by DAVID JOHN KENNEDY in the presence of: | ) …/s/ David John Kennedy..................... )
|
Witness signature /s/ Zum Mohammed
Witness name Zum Mohammed
Address Gateley plc No 1 Paternoster Square, London EC4M 7DX DX 824 London City Tel 0207 653 1600 Fax 0207 653 1600
Occupation Solicitor
|
|
EXECUTED and DELIVERED as a DEED by by DAVID RHYS LEYSHON as attorney for JOHN DOCHERTY under a power of attorney dated on or around 5 September 2017 in the presence of: | ) …/s/ David Rhys Leyshon....................... )
|
Witness signature /s/ Zum Mohammed
Witness name Zum Mohammed
Address Gateley plc No 1 Paternoster Square, London EC4M 7DX DX 824 London City Tel 0207 653 1600 Fax 0207 653 1600
Occupation Solicitor
|
|
EXECUTED and DELIVERED as a DEED by STAFFING 360 SOLUTIONS, INC. acting by: in the presence of: | )..../s/ Brendan Flood................................... )Authorised signatory / Director ) ) )
|
Witness signature /s/ Georgia Joseph
Witness name Georgia Joseph
Address Mishcon de Reya LLP
Africa House
70 Kingsway
London WC2B 6AH
Occupation Solicitor