(1) | LONGBRIDGE RECRUITMENT 360 LIMITED |
(2) | richard ward |
(3) | STAFFING 360 SOLUTIONS, INC. |
AGREEMENT TO BUY the SHARES IN GLOBAL RESOURCE dELIVERY LIMITED |
Mishcon de Reya LLP
Africa House
70 Kingsway
London WC2B 6AH
47322754.13
No.HeadingPage
1. | DEFINITIONS AND INTERPRETATION1 |
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2. | SALE AND PURCHASE7 |
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3. | Purchase price8 |
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4. | BUYER GUARANTEE10 |
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5. | CONSISTENCY OF TRADING12 |
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6. | REFERENCES TO EXPERT13 |
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7. | WARRANTIES14 |
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8. | COMPLETION15 |
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9. | Right of set-off16 |
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10. | Announcements and CONFIDENTIALITY18 |
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11. | RESTRICTIve covenants19 |
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12. | RELEASE OF GUARANTEES AND INDEMNITIES22 |
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13. | TAX COVENANT23 |
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14. | SPECIFIC PAYMENT COVENANTS23 |
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15. | notices and SERVICE of proceedings23 |
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16. | Costs25 |
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17. | Assignment and Successors25 |
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18. | Continuing agreement26 |
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19. | Further assurance26 |
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20. | Entire agreement26 |
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21. | remedies, variation and waiver27 |
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22. | Severable provisions27 |
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23. | Payments27 |
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24. | withholding and grossing up28 |
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25. | THIRD PARTY RIGHTS28 |
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26. | Counterparts28 |
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27. | Law and jurisdiction28 |
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Schedule 1 – THE SELLER AND THE SELLER'S SHAREHOLDING AND THE MINORITY SHAREHOLDERS | 30 |
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Schedule 2 | 31 |
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Schedule 3 – WARRANTIES | 32 |
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Schedule 4 – SELLER'S LIMITS | 61 |
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Schedule 5 – COMPLETION | 69 |
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Part A – Documents to be delivered by the Seller69
Part B – Decisions to be taken at Completion by the directors of the PARENT70
Part C – Decisions to be taken at Completion by the directors of the COMPANY70
47322754.131
Part D - Other action to be taken by the Seller and other items to be delivered by the Seller71
Part E – Documents to be delivered and actions to be taken by the Buyer71
Part F – Documents to be delivered and actions to be taken by Staffing 36071
Schedule 6 – TAX SCHEDULE | 73 |
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Part A – Definitions and Interpretation73
Part B – Tax Covenant77
Part C – Tax Warranties83
Part D – Tax Administration91
47322754.132
THIS AGREEMENT is dated 28June 2018
PARTIES
(1) | LONGBRIDGE RECRUITMENT 360 LIMITED a company registered in England and Wales under number 06745176 whose registered office is at 3 London Wall Buildings, London Wall, London EC2M 5SY (the Buyer). |
(2) | RICHARD WARD of Uplands, Upper Anstey Lane, Alton, Hampshire GU34 4BP (the Seller). |
(3) | STAFFING 360 SOLUTIONS, INC., a company registered in State of Delaware under File Number 6178457 whose principal place of business is at Suite 2701, 641 Lexington Ave, New York, NY 10022, United States of America (Staffing 360). |
BACKGROUND
(A) | The Buyer has agreed terms with the Seller for the acquisition of the entire issued share capital of Global Resource Delivery Limited (the Parent). |
(B) | The Parent holds 170 ordinary shares of £1.00 each in the capital of Clement May Limited (the Company) (the Majority Shares). |
(C) | The Buyer has also agreed terms with the Minority Shareholders for the acquisition of the shares in the capital of the Company which are not held by the Parent (the Minority Shares). |
AGREED TERMS
Accountants means the Seller's Accountants and the Buyer's Accountants;
Accounts means the draft audited financial statements of the Company for the period ended on the Accounts Date;
Accounts Date means 31 December 2017;
Agreed Form means, in relation to any document, in the form agreed by or on behalf of the parties to this agreement;
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;
BAT means British American Tobacco (Holdings) Limited;
BAT Confirmation means a confirmation in writing in the Agreed Form from BAT that it will not enforce any change of control or equivalent provisions within its contracts with the Company as a result of entry by the parties into this agreement;
BAT Extension means either:
| a) | the entry by each of BAT and the Company into an agreement (the Extension Agreement) pursuant to which the services agreement between BAT and the Company with an effective date of 1 January 2017 shall be extended for a period of at least 12 months from the date of completion of the Extension Agreement; or |
| b) | the Company and BAT continuing to trade with each other for a period of at least 18 months following Completion in a manner which is consistent with the way such parties have traded in the period prior to Completion pursuant to the existing services agreement between BAT and the Company with an effective date of 1 January 2017. |
BW Debtor means the sum of £180,000 owed by Bellward Properties Limited (CRN: 05921752) to the Parent;
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 information technology professionals as carried out by the Company as at Completion;
Business Day means any day on which clearing banks generally are open for business in the City of London excluding Saturdays or Sundays;
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 BDO UK LLP of 55 Baker St, Marylebone, London W1U 7EU or their successors in business or any other firm of chartered accountants appointed by the Buyer and notified to the Seller for the purposes of this agreement;
Buyer's Bank Account means HSBC Bank plc, sort code: 40-11-60 and account number: 30462853;
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;
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;
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 clause 8.3.3) and 8.4. For the avoidance of doubt, Completion shall be deemed to have
occurred notwithstanding that the events referred to in clause 8.3.3 have not occurred (and no person waives any of their rights pursuant to such clauses);
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 the Group and know-how relating to the 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 the Group 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 24.1 of Schedule 3;
Control: has the meaning given in section 1124 of the CTA 2010, and the expression change of Control shall be construed accordingly;
CTA 2010: the Corporation Tax Act 2010;
Debtors Assignment means the deed of assignment in Agreed Form between the Parent (1) and the Seller (2) pursuant to which the Parent shall assign any sums due to it (including the BW Debtor) to the Seller;
Deferred Consideration means the sum of £350,000;
Disclosure Documents means the documents 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, in respect of the Seller, 85%;
Disclosure Letter means the letter dated today in the Agreed Form from the Seller to the Buyer relating to the Warranties, and which is delivered 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 Conditions means, together, (i) the BAT Extension; and (ii) the Santander Condition;
Earn-out Payment means the amount of £500,000 to be paid after Completion as provided in clauses 3.1 and 3.4;
Earn-out Period: means the date commencing on Completion and ending on the Expiry Date;
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;
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 means, together, the Parent and the Company and Group Company means either of them;
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);
Initial Cash Payment means the sum of £1,550,000;
Insolvency Proceedings means any formal insolvency proceedings whether in or out of court, including formal 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;
IT Contract means the contract dated 1 January 2017 and entered into between Support On The Spot Limited (CRN: 07025260) (1) and the Company (2) for the provision of certain IT services;
Joint Announcement means the joint announcement by the Seller and the Buyer of the execution of this agreement in a form to be agreed by the Seller and the Buyer;
Leakage shall mean any of the following to the extent that they have not been Disclosed and that they occur during the period starting on 30 April 2018 and ending on the Completion Date:
| a) | payments made or liabilities incurred by any Group Company that are non-trading items (excluding to avoid doubt any sums paid or payable to Santander UK plc as part of the Santander Condition and excluding any costs or expenses, properly incurred in the ordinary course of business (such as those relating to support, client / staff entertainment and business development)); |
| b) | any payment, waiver or transfer of value of whatever nature (whether in cash or kind and including, dividends, distributions or returns of capital) made or on behalf of, any Group Company to or for the benefit of the Seller (or any Associate of the Seller) or the Minority Shareholders (or any Associate of any of them), other than in accordance with the terms of: |
| I. | the employment contracts in place between each of the Minority Shareholders and the Company (including any expenses, remuneration, |
| commission and bonuses payable in the course of their employment in accordance with such contracts); |
| II. | the IT Contract; |
| III. | the Licence to Occupy; |
| IV. | the RW Consultancy Agreement. |
| c) | any cost or expense relating to the sale of the Shares or the Minority Shares to the Buyer borne by any Group Company that ought to have been borne by the Seller (or any Associate of any of him) or the Minority Shareholders (or any Associate of any of them); |
Licence to Occupy means the licence to occupy in respect of the Property between the Company and Fusion People Limited dated 1October 2017;
Majority Shares means the 170 ordinary shares of £1.00 each held by the Parent in the capital of the Company;
Management Accounts means the unaudited statement of financial position and statement of comprehensive income of the Company for the four month period ended on the Management Accounts Date;
Management Accounts Date means 30 April 2018;
Minority Shareholders means those persons whose names and addresses are set out in Part B of Schedule 1;
Minority Shareholders Sale Agreements means the agreements in the Agreed Form pursuant to which each Minority Shareholder will transfer to the Buyer at Completion such number of Minority Shares as is set out opposite his name in Part B of Schedule 1;
Minority Shares means the 30 ordinary shares of £1.00 each in the capital of the Company owned by the Minority Shareholders as set out opposite their respective names in column 3 of the table in Part B of Schedule 1;
NASDAQ means the NASDAQ stock market;
Parent Loan means the inter-company loan of £501,030.00 owed by the Parent to Company;
Pension Scheme means the defined contribution scheme in place in respect of the Company as at the Completion Date and as operated by NEST;
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 means Aldermary House 3rd Floor, 15 Queen Street, London, EC4N 1TX;
RC Claim means a claim under clause 11 (Restrictive Covenants);
RW Consultancy Agreement: means the consultancy agreement dated 1 January 2016 and entered into between Short Message Services Limited (1) and the Company (2);
Santander Condition means the migration and repayment of the sales finance agreement between the Company and Santander UK plc dated 14 July 2017 to HSBC Bank plc, including but not limited to the irrevocable release by Santander UK plc of the personal guarantees given by the Seller and the Minority Shareholders in respect of any arrangements with Santander or in the absence of such release, the confirmation in writing from Santander that no further liabilities are owed by the Company to Santander;
Santander Personal Guarantees means the personal guarantee(s) given by the Seller to Santander UK plc in respect of the obligations of the Parent and the Company to Santander;
Seller's Accountants means Roff Swayne, Statutory Auditors & Chartered Accountants, Ashcombe Court, Woolsack Way, Godalming, Surrey GU7 1LQ or their successors in business or any other firm of chartered accountants appointed by the Seller and notified to the Buyer for the purposes of this agreement;
Seller's Solicitors means Pannone Corporate LLP, 378-380 Deansgate, Manchester M3 4LY or their successors in business or any other firm appointed as solicitors by the Seller for the purposes of this agreement;
Seller's Solicitors' Bank Account means the account details as notified in writing by the Seller’s Solicitors to the Buyer’s Solicitors prior to Completion;
Shares means the 100 ordinary shares of £1.00 each in the capital of the Parent owned by the Seller as set out opposite his name in column 3 of the table in Part A of Schedule 1 (each a Share);
South African Subsidiary means Clement May Africa (Pty) Ltd;
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 paragraph 1 of Part B of the Tax Schedule;
Tax Schedule means Schedule 6;
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;
Third Party Sale: means:
| a) | the transfer or sale of the Company, the Parent (if at the relevant time the Parent is the parent undertaking of the Company) or the Business or the transfer or sale of |
| the member of the Buyer’s Group for the time being owning the Business (or of a member of the Buyer’s Group which is a holding company of such member of the Buyer’s Group) to any person which is not a member of the Buyer’s Group |
(but for the avoidance of doubt Third Party Sale shall not include any bona fide reorganisation or reconstruction of the Buyer’s Group (including the shares or assets in the Parent or the Company) where either the Buyer or the Guarantor retain ultimate Control of the entity that owns the Company; or
| b) | a change of Control of the Buyer; |
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;
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;
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 | Obligations and liabilities assumed by more than one person are assumed jointly and severally unless otherwise stated. |
| 2.2.1 | the Shares constitute the whole of the allotted and issued share capital of the Parent; and |
| 2.2.2 | the Majority Shares and the Minority Shares together constitute the whole of the allotted and issued share capital of the Company; |
| 2.2.4 | he has full power and authority and the right to transfer the legal and beneficial title to the Shares on the terms of this agreement; |
| 2.2.5 | the Parent holds the entire legal and beneficial title to the Majority Shares; and |
| 2.2.6 | on Completion the Shares and the Majority Shares will be free from any Encumbrance (whether or not known about by the Seller or the Buyer). |
2.4 | The Seller shall and shall procure that the Parent shall waive any pre-emption or similar right which may exist in relation to the sale and purchase of the Minority Shares being sold by the Minority Shareholders pursuant to the Minority Shareholders Sale Agreements whether under the articles of association of the Company or otherwise. |
to the arrangements with Santander UK plc or pursuant to the Parent Loan, such cash balance shall be deemed to be reduced by the amount of such liabilities. |
3.2 | The Seller's Due Proportion of Initial Cash Payment will be paid in full on Completion by the Buyer by telegraphic transfer of immediately available funds to the Seller's Solicitors' Bank Account. |
3.3 | The Deferred Consideration shall be paid to the Seller and the Minority Shareholders on the earlier of: |
| 3.3.1 | the date that is 12 months from Completion; or |
| 3.3.2 | the date on which a Third Party Sale occurs, |
(or if either such date is not a Business Day – on the first Business Day immediately following such date). The Seller shall be paid a sum equal to the Seller's Due Proportion of the Deferred Consideration. Any payment made to the Seller under this clause 3.3 will be made by telegraphic transfer of immediately available funds to the Seller's Solicitors' Bank Account.
3.4 | The Earn-out Payment shall be paid to the Seller and the Minority Shareholders on the earlier of: |
| 3.4.1 | the Expiry Date as calculated in accordance with either clause 3.5 or clause 3.6 (as appropriate); or |
| 3.4.2 | the date on which a Third Party Sale occurs, |
(or if either such date is not a Business Day – on the first Business Day immediately following such date). The Seller shall be paid a sum equal to the Seller's Due Proportion of the Earn-out Payment. Any payment made to the Seller under this clause 3.4 will be made by telegraphic transfer of immediately available funds to the Seller's Solicitors' Bank Account.
| 3.7.3 | act reasonably and in good faith to support the Seller and the Company in the achievement of the Earn-out Conditions; |
| 3.7.4 | use reasonable endeavours to procure the satisfaction of the Earn-out Conditions; |
| 3.7.5 | keep the Seller reasonably informed of the progress of and material developments in relation to the satisfaction of the Earn-out Conditions as reasonably requested by the Seller; and |
| 3.7.6 | give the Seller and his professional advisers reasonable access at reasonable times (and on at least seven days’ notice) to any relevant documents, records and personnel within its control or possession, for the purposes of enabling the Seller to assess the status of fulfilment of the Earn-out Conditions. |
3.8 | 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 Seller, 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 Seller 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 Seller 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 Buyer Guarantee. |
4.6 | Until the full and final discharge of all obligations and liabilities (both actual and contingent) which are the subject of the Buyer 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 Seller 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 Seller 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 Buyer 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. |
| 5.1.1 | the Company has not declared, paid or made any distributions to the Parent or to the Minority Shareholders since 1 January 2018, save for dividends paid in January 2018 that related to profits from year ending 31 December 2016; and |
| 5.1.2 | the Parent has not declared, paid or made any distributions to the Seller since 1 January 2018, save for dividends paid in January 2018 that related to profits from year ending 31 December 2016; |
| 5.1.3 | the Parent has no liabilities as at the date of this agreement, save for any that exist (or have been agreed to be incurred) pursuant to the arrangements with Santander UK plc, including the debenture dated 14 July 2017 granted by the Parent in favour of Santander UK plc. |
5.2 | The Buyer shall, within the period commencing on Completion and ending on the date falling three months from the date of Completion, notify the Seller in writing of any possible Leakage |
giving sufficient detail as then known by the Buyer of the Leakage to enable the Seller to make a reasonably accurate assessment of the situation. |
5.3 | If the Seller becomes aware of any Leakage prior to the date falling three months from the date of Completion and including, for the avoidance of doubt, the period prior to Completion, the Seller shall immediately notify the Buyer in writing giving sufficient detail as then known by the Seller of the Leakage to enable the Buyer to make an accurate assessment of the situation. The payment at Completion, or deduction from the Purchase Price at Completion, of any amount payable under the Leakage provisions set out in this clause 5 will not affect the rights of the Buyer to demand, and the Seller's obligation to pay, any other amount payable under the Leakage provisions set out in this clause 5 of which it becomes aware after Completion or which is not capable of being deducted from the Purchase Price at Completion and whether relating to the same matter or otherwise |
5.5 | Each party shall give (and shall procure their respective group companies shall give) such assistance and access to information as the other party (or their advisers) may reasonably require in connection with the resolution of any Leakage. |
5.6 | If the parties are unable to agree any Leakage then the dispute must be referred to the Expert for final decision in accordance with clause 6 of this agreement. The Expert will decide: |
| 6.3.4 | the Seller 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 Seller warrants to the Buyer as at Completion as set out in Schedule 3 (Warranties) and Part C of the Tax Schedule. |
7.2 | Unless the context otherwise expressly requires, any reference in Schedule 3 (Warranties) or Part C of the Tax Schedule to the Company means the Parent and the Company separately so that the Warranties are given in respect of each such company separately. |
7.9 | Each Warranty is separate and, unless specifically otherwise provided, is not limited or affected by any other Warranty. |
7.12 | Any payment made by the Seller under this clause 7 or clause 14 (Specific Payment Covenants) or the Tax Schedule shall be deemed to be a reduction in the Purchase Price. |
8.3 | Conditional upon performance by the Seller of their obligations under clause 8.2, on Completion the Buyer will: |
| 8.3.2 | pay the Seller's Due Proportion of the Initial Cash Payment by telegraphic transfer to the Seller's Solicitors' Bank Account; |
| 8.3.3 | pay each of the Minority Shareholders the cash element of the consideration for the sale of their Minority Shares to the Buyer in accordance with the Minority Shareholders Sale Agreements; |
| 8.3.4 | pay or procure the payment by the Company of the sum of £7,000 plus VAT to the Seller in full and final settlement of all sums due under the RW Consultancy Agreement. |
8.6 | The auditors of each Group Company shall be engaged by the Buyer following Completion to finalise the audited statutory accounts of the Company for the financial year ended 31 December 2017. |
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 the Group against the Seller under this agreement:
| 9.1.2 | in respect of which final judgment has been obtained from a court of competent jurisdiction, which judgment is not (or no longer) appealable; |
| 9.1.3 | which is subject to an award of an arbitration tribunal, which is not (or no longer) appealable; or |
Estimated Amount means the amount estimated by Counsel under clause 9.5.3 (or agreed in writing by the Buyer and the Seller);
Relevant Date means the last day of the Earn-out Period; and
Undetermined Claim means any claim by the Buyer or the Group against the Seller under this agreement which has been notified to the Seller in accordance with the time limits and process pursuant to this agreement but which is not a Determined Claim.
9.2 | The Buyer may deduct from and set-off against any amount payable by the Buyer to the Seller under this agreement: |
which, in either case, is subsisting and has not been settled in full by the Seller at the time on which any payment is due from the Buyer to the Seller.
| 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; |
| by the Buyer or the Group in respect of such Undetermined Claim (the Estimated Amount). |
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 Seller will not (and will procure that none of their 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 Seller 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 the 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 a Group Company; or (ii) was in the habit of dealing with a 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 who immediately before Completion was employed or engaged by a Group Company at managerial level or above, or any other person employed by a Group Company who had knowledge of Confidential Information and who could materially damage the interests of a 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, a 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 information technology professionals as carried out by the Group 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 a Group Company.
11.2 | Subject to clause 11.4, the Covenantor covenants with the Buyer that the Covenantor will not for the period of 24 months following Completion in any Capacity: |
| 11.2.3 | solicit or endeavour to entice away from a Group Company any existing candidate of a Group Company in the course of any business which is in competition with any Restricted Business; |
| 11.2.4 | be involved with the provision of goods or services to, or otherwise have any business dealings with, any existing candidate of a Group Company in the course of any business which is in competition with any Restricted Business; |
| 11.2.5 | be involved with the receipt of goods or services from any Supplier where that receipt would adversely affect the ability or willingness of the Supplier to meet the requirements of a Group Company; |
| 11.2.6 | offer to employ or engage or otherwise endeavour to entice away from a Group Company any Key Employee (whether or not that person would breach their contract of employment or engagement); |
| (b) | any trade or service mark, business or domain name, design, logo or get-up which, at Completion, was or had been used by a Group Company; or |
11.3 | The covenants in clause 11.2 are intended for the benefit of the Buyer and a Group Company and apply to actions carried out by the Covenantor in any Capacity and whether directly or |
indirectly, on the Covenantor's own behalf, on behalf of any other person or jointly with any other person. |
| 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 an employee of or consultant of or otherwise engaged by a 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; or |
| 11.4.6 | being involved or interested in any of the companies set out in Appendix 1. |
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 | the 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, bonuses and other employment related emoluments payable to the Seller and/or any Associate of the Seller in respect of the period prior to Completion; or |
| 12.3.4 | the Seller’s (or any of his Associate’s) payments, rights and claims under the Licence to Occupy, and/or any agreement entered into in connection with the Licence to Occupy only to the extent that such payment does not exceed the amount of £9,000 (plus VAT); |
| 12.3.5 | the payment by the Company to RW pursuant to clause 8.3.4 in respect of the termination of the RW Consultancy Agreement only to the extent that such payment does not exceed the amount of £7,000 (plus VAT); |
| 12.3.6 | any payments due under the IT Contract only to the extent that such payment does not exceed the amount of £6,000 (plus VAT). |
12.4 | For the purposes of this clause 12 the Seller shall not be deemed to be an Associate of the Group or of any Minority Shareholder. |
12.5 | All parties shall use reasonable endeavours to release and discharge the Santander Personal Guarantees as soon as possible following Completion (to the extent that they are still outstanding at Completion). |
12.6 | The Buyer will on demand by the Seller make payments to the Seller equal to any and all Losses (as defined in clause 14) which the Seller suffers or incurs and which in any case arises out of or in relation to any claims made by Santander UK plc against the Seller pursuant to the Santander Personal Guarantees, insofar as any such claims relate to matters arising in the period after Completion. The parties shall attempt to resolve any such matters with Santander UK plc in good faith. |
The Tax Covenant will come into effect at Completion.
| 14.1.2 | the South African Subsidiary where: |
| (a) | the trading losses incurred by the South African Subsidiary are such that in the period commencing on 1 January 2018 and ending on 30 June 2018 they cause a reduction to the profit before tax of the Company of an amount greater than the sum of £3,750; |
| (b) | the administrative costs and expenses incurred by the Buyer or a Group Company in relation to the process of deregistration of the South African Subsidiary (as noted in disclosure against Warranty 4.2 in the Disclosure Letter) exceed the sum of £4,000 plus VAT and expenses; |
| 14.1.3 | a failure by the Parent and the Company in the period prior to Completion to prepare and maintain those statutory registers that it is required to maintain pursuant to the Companies Act 2006 and any breach under the Companies Act 20016 in connection with any issue, buyback and/or transfer of shares in the capitals of the Parent and/or the Company; |
15.1 | 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: 3 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;
For the attention of: Richard Ward
Address: Uplands, Upper Anstey Lane, Alton, Hampshire GU34 4BP; or
Email address: richard.ward@fusionpeople.com,
With a copy to: Pannone Corporate LLP, 378-380 Deansgate, Manchester M3 4LY, marked for the attention of Tom Hall with reference WAR/17/1.
For the attention of: Brendan Flood
Address; 3 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.
17.2 | Subject to clause 18.1 and 17.3, the parties may not assign, sub-contract, hold on trust or otherwise transfer all or any part of the benefit of this agreement. |
17.3 | Subject to clauses 17.5 to 17.7, 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: |
| 17.3.2 | by way of security to any bank or third party acting as lender to the Group, 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.
| 19.1.1 | vesting in the Buyer the legal and beneficial ownership of the Shares (but with no obligation on the Seller to pay stamp duty in respect of the transfer thereof); |
20.3 | No party will have any right, claim or remedy for any representation or statement made or incorporated in this agreement other than in contract. |
23.3 | Where a provision in this agreement provides that a payment be made by the Seller to the Buyer, that payment will be treated as a reduction in the consideration for the Shares. |
The provisions of clauses 7.7, 10.1 and 11 are intended to benefit (but may be enforced only with the prior written consent of the Buyer by) the Group, 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 17.1 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.
27.2 | The parties irrevocably submit to the exclusive jurisdiction of the English Courts for any Dispute. |
27.3 | 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.
Schedule 1 – THE SELLER AND THE SELLER'S SHAREHOLDING AND THE MINORITY SHAREHOLDERS
THE SELLER
(1) | (2) | (3) | (4) |
Name | Address | No. of Shares held in the Parent | Due Proportion of Initial Cash Payment (£) |
Richard Ward | [REDACTED]
| £1,317,500 |
THE MINORITY SHAREHOLDERS
(1) | (2) | (3) |
Name | Address | No. of Minority Shares held in the Company |
[REDACTED] | [REDACTED]
| 20 ordinary shares of £1.00 each |
[REDACTED] | [REDACTED]
| 5 ordinary shares of £1.00 each |
[REDACTED] | [REDACTED] | 5 ordinary shares of £1.00 each |
TOTAL |
| 30 ordinary shares of £1.00 each |
1. | Registered Number: 08993195 |
2. | Place of Incorporation: England and Wales |
3. | Date of Incorporation: 11 April 2014 |
4. | Issued share capital: 100 ordinary shares of £1.00 each |
5. | Registered office: Uplands, Upper Anstey Lane, Alton, Hampshire, England, GU34 4BP |
6. | Director: Richard Robert Ward |
7. | Accounting Reference Date: 31 December |
8. | Auditors: Roffe Swayne, Statutory Auditors & Chartered Accountants, Ashcombe Court, Woolsack Way, Godalming, Surrey GU7 1LQ |
9. | Date of latest accounts filed: 31 December 2016 |
PART B – THE COMPANY
1. | Registered Number: 07061321 |
8. | Auditors: Roffe Swayne, Statutory Auditors & Chartered Accountants, Ashcombe Court, Woolsack Way, Godalming, Surrey GU7 1LQ |
1.3 | No Insolvency Proceedings have been commenced against the Seller. There are no subsisting circumstances which would entitle any person to commence such Insolvency Proceedings. |
1.4 | No one is entitled to receive from the Company a finder's fee, brokerage or other commission or transaction bonus in connection with the sale and purchase of the Shares under this agreement. |
2.1 | The Shares are the only shares in the Parent in respect of which the Seller has any legal or beneficial interest. |
2.2 | The Majority Shares are the only shares in the Company in respect of which the Parent has any legal or beneficial interest. |
2.3 | The Shares constitute the entire issued and allotted share capital of the Parent and each Share has been properly allotted and issued and is fully paid. |
2.4 | The Majority Shares and the Minority Shares constitute the entire issued and allotted share capital of the Company and each Majority Share and Minority Share has been properly allotted and issued and is fully paid. |
2.6 | The Parent is the sole legal and beneficial owner of the Majority Shares, and has the full legal and beneficial ownership of the Majority Shares. |
2.8 | No person (other than the Buyer) has the right (whether exercisable now or in the future and whether contingent or not) to call for the sale or transfer of the Shares or the Majority Shares. |
3.1 | There are no commission or incentive schemes or arrangements that are operated or have been operated at any time in the past by the Company in which employees of the Company or any other persons participate, which give any rights (which are still subsisting) over shares or quasi rights in respect of shares in the Company. |
3.2 | The Company is not a party to, bound by or proposing to introduce any arrangements that fall or may fall within Part 7A of Income Tax (Earnings and Pensions) Act 2003 (ITEPA 2003) and no challenge has been raised by HM Revenue & Customs in relation to such arrangements. |
4.1 | The particulars of the Parent set out in Schedule 2 are true and accurate. Other than the Company, the Parent does not have, and has never had, any subsidiaries or subsidiary undertakings. The Parent does not have, and has never had, a holding company. |
5.2 | A copy of each resolution passed by the members of the Company or any class of them is kept with the statutory books of the Company. |
5.5 | The Company has not at any time repaid, redeemed or repurchased any of its own shares, reduced its share capital or capitalised any reserves or profits (or agreed to do the same). |
| 6.1.3 | result in the creation, imposition, crystallisation or enforcement of any Encumbrance on or over any of the assets of the Company or the Shares. |
| 7.1.2 | have been prepared in all material respects in accordance with FRS102 using appropriate accounting policies and estimation techniques as required by FRS102; |
| (b) | save as expressly disclosed by or noted in the Accounts, the Accounts are not affected by any extraordinary or exceptional items or any inconsistency in accounting policies and practices adopted; |
| (c) | make adequate provision (in accordance will all relevant accounting standards) for all material bad and doubtful debts of the as at the Accounts Date; and |
accounting principles, practices and policies used in their preparation and having regard to the purpose for which they were prepared, the Management Accounts fairly present in all material respects the financial position of the Company as at the Management Accounts Date and are not materially misleading; |
7.3 | All the accounts, books, registers, ledgers and financial and other material records of any kind (whether or not held in written form) which the Company is required by law to keep: |
| 7.3.2 | have been properly kept and maintained and contain an accurate record (in all material respects) of the matters which they are required to record pursuant to all applicable laws. |
| 8.1.1 | the Company has carried on its business in the ordinary and normal course, at a profit and so as to maintain it as a going concern; |
| 8.1.2 | there has been no material adverse change in the Company's turnover or in its financial or trading position; |
| 8.1.3 | the Company has not assumed or incurred, nor agreed to assume or incur, any liabilities (including contingent liabilities) otherwise than in the ordinary course of business; |
| (a) | acquired or disposed (or agreed to acquire or dispose) of any material business asset with a value of more than £15,000; or |
| (b) | assumed or incurred a material liability or capital expenditure with a value of more than £15,000; |
| 8.1.6 | no donation or covenant for charitable or political purposes or any similar ex‑gratia payment has been made or agreed to be made by the Company; |
| 8.1.7 | the Company has not declared, made or paid a dividend or other distribution (within the meaning of the Act or CTA 2010) or return of capital (whether by reduction of capital or otherwise); |
| 8.1.8 | no bonus has been declared, awarded or become due (unpaid or paid) by or on behalf of the Company to the Seller outside the ordinary course of business; |
| 8.1.9 | no bonus has been declared, awarded or become due (unpaid or paid) by or on behalf of the Company to any employee of the Company in connection with the sale of the Shares to the Buyer; |
| 8.1.12 | the Company has paid its creditors within the times agreed with those creditors and there has been no change in the manner or time of issue of invoices or the collection of debts; |
| 8.1.15 | the Company has not borrowed or raised any money or taken up any financial facilities and the Company has not repaid any borrowing or indebtedness in advance of its stated maturity; |
| 8.1.19 | no loan or loan capital or redeemable share capital of the Company has been issued or repaid or redeemed in whole or in part or has become liable to be repaid or redeemed. |
9.1 | The Company has not declared or paid any dividend or made any other distribution (as defined in section 1119 of the Tax Act), whether a capital distribution or otherwise, in respect |
of any of the three accounting periods ending on the Accounts Date, other than those (if any) provided for in its audited accounts for those periods. |
9.2 | All dividends and distributions declared, made or paid by the Company were declared, made or paid in accordance with its articles of association and the applicable provisions of the Companies Act. |
10.1 | Except as Disclosed or provided for or noted in the Accounts or the Management Accounts, the Company: |
| 10.1.3 | has not engaged in financing of a type which need not be shown or reflected in its audited accounts; and |
10.3 | There are no unpresented cheques drawn by the Company in the normal course of business for amounts exceeding in aggregate £5,000 or otherwise than in the normal course of business. |
10.10 | The Company has not made any loan, which remains outstanding, on terms entitling it to receive either a rate of interest varying with, or a share of, the profits of a business. |
10.12 | All costs incurred by the Company have been charged to the Company and not borne by any other person (other than the Company). |
10.13 | No outstanding mortgage or charge granted in favour of the Company is void or voidable for want of registration. |
| 11.1.1 | are legally and beneficially owned by the Company (or another Group Company), free from Encumbrance or any other third party right, except for: |
| (c) | title retention provisions in respect of goods and services supplied to the Company in the ordinary course of business; |
11.3 | Any assets of the Company which are not situated at the Property at Completion are specified in the Disclosure Letter. |
Company or the Seller an intention to reduce to a material extent its orders for any of the products or services of the Company. |
12.7 | The Company does not have any branch office, agency, place of business or permanent establishment outside England nor does it have any significant assets outside the United Kingdom. |
12.8 | The Company has not carried on business under or used on or in its notepaper, advertising, documents or vehicles, any name other than its full corporate name. |
12.12 | All the standard terms and conditions on which the Company supplies its goods and/or services are contained in the Disclosure Documents. |
12.13 | All the standard terms and conditions on which the Company customarily buys or contracts for goods and/or services are contained in the Disclosure Documents. |
In this paragraph 13, Material Contract means any subsisting contract, arrangement or obligation which whether by reason of its nature, term, scope, price or otherwise, is or is likely to be of material importance to the business, profits, assets or liabilities of the Company.
| 13.2.2 | is incapable of complete performance in accordance with its terms within six months after the date on which it was entered into or undertaken; |
| 13.2.3 | cannot be terminated in accordance with its terms, by the Company without payment of compensation, on 60 days' notice or less; |
| 13.2.4 | is of a loss‑making nature (that is to say, so far as the Seller is aware, is likely to result in a material loss to the Company on completion of performance); |
| 13.2.5 | cannot readily be fulfilled or performed by the Company on time and without undue or unusual expenditure of money or effort; |
| 13.2.6 | involves or is likely to involve obligations, expenditure or receipts of an unusual or exceptional nature and not in the ordinary course of the Company's business; |
| 13.2.8 | is linked to the Index of Retail Prices or any other index or the rate of exchange for any currency; |
| 13.2.11 | is a contract for the sale of shares or assets which contains warranties or indemnities or provides for them; |
| 13.2.14 | is in any way otherwise than in the ordinary and usual course of the Company's business or is not at arm's length. |
13.3 | The Company has not entered into any contract to buy foreign currency or made any forward sales of foreign currency which in either case remains outstanding. |
13.4 | So far as the Seller is aware, the Company has not received a material complaint (whether or not in writing) or notice of a material claim from a customer or supplier in connection with or arising out of a Material Contract in the last 12 months, other than those Disclosed. |
13.7 | The Company is not a party to any subsisting agency, distributorship, franchising, marketing or similar agreement or arrangement. |
| 14.2.1 | there are no amounts owing at Completion by the Company to the Seller or by the Seller to the Company; |
14.4 | The Company does not depend upon, or derive any benefit from, any assets, facilities or services owned or supplied by the Seller. |
15.4 | The Disclosure Letter sets out full and accurate details of, or there are contained in the Disclosure Documents full copies of, all material licences and agreements (the IP Licences) under which: |
| 15.4.2 | the Company has licensed or agreed to license Intellectual Property Rights to, or otherwise permitted the use of any Intellectual Property Rights by, any third party. |
15.7 | All the Intellectual Property Rights used by the Company in the course of its business in the period before Completion are either: |
| 15.8.2 | all Confidential Information and trade secrets owned or used by the Company has been kept confidential and not disclosed to third parties, save under arrangements of confidentiality; |
15.9 | So far as the Seller is aware, there is no infringement by any third party of any of the Intellectual Property Rights owned by the Company. |
15.13 | The Company has in its possession all necessary documentation or evidence to establish the ownership of any of the Intellectual Property Rights that it claims to own. |
IT Contracts means all arrangements and agreements relating to the IT System (or any part of it) under which any third party (including any source code deposit agent) provides any element of, or services relating to, the IT System, including, without limitation, leasing, hire purchase, licensing, maintenance, outsourcing and services agreements; and
IT System means all computer hardware (including network and telecommunications equipment, cabling, printing facilities, work stations and related components) and software (including associated preparatory materials, user manuals and other related documents, outsourcing arrangements and any zero disaster recovery management arrangements) and any other items that connect with any of the above, owned, used, licensed or leased by the Company.
16.2 | Complete and accurate particulars of all material elements of the IT System and copies of all IT Contracts (which are currently subsisting) are set out in the Disclosure Documents. |
16.6 | So far as the Seller is aware, none of the IT Contracts is liable to be terminated or otherwise materially affected by a change of control of the Company. |
16.8 | The Disclosure Documents contain a full, complete and accurate list of all software developed by or for the Company or in respect of which rights have been assigned to the Company in writing. |
| 16.10.2 | includes sufficient user information to enable any skilled personnel in the relevant field to use and operate it without the need for further assistance or training; |
| 16.10.5 | has sufficient capacity and capability and performance to meet the current business requirements of the Company (as at Completion); and |
| 16.10.6 | has been satisfactorily and regularly maintained and has benefited from appropriate maintenance and support agreements, complete copies of which are set out in the Disclosure Documents. |
16.13 | The Company has in place disaster recovery plans which are fully documented and which, in the event that there is any damage to or destruction of some or all of the IT System: |
| 16.13.2 | will ensure that the IT System can be replaced or substituted without material disruption to the business of the Company. |
18.1 | There is no outstanding arbitral award, or decision of a court, tribunal, arbitrator or government agency against the Company. |
18.3 | So far as the Seller is aware, there are no facts likely to give rise to any Proceeding or claim described in paragraph 18.2. |
19.3 | Subject to the ability of an insurer to meet a claim under the Policies due to its financial position, each of the Policies is valid and enforceable. |
19.4 | All premiums due as at Completion in respect of the Policies have been paid on time and receipts for the latest premiums payable are contained in the Disclosure Documents. |
19.5 | There is no claim outstanding under any of the Policies and, so far as the Seller is aware, there is no fact or circumstance which is likely to give rise to such a claim. |
19.7 | No insurer has ever cancelled or refused to accept or continue any insurance in relation to the Company. |
19.8 | Nothing has been done or omitted to be done by the Company which might prejudice any prospective claim under the Policies or which might render any of those Policies void or voidable. |
the procedures the Company has in place and which are designed to prevent those persons from undertaking bribery as described are Disclosed. |
20.5 | The Company has not been debarred, suspended or rendered ineligible from bidding for public contracts by reason of any law or decision of any public agency or authority. |
In this paragraph 21, unless the context otherwise requires Competition Law means the national and directly effective legislation of any jurisdiction in which the Company conducts business which governs the conduct of companies or individuals in relation to restrictive or other anti-competitive agreements or practices (including cartels, pricing, resale pricing, market sharing, bid rigging, terms of trading, purchase or supply and joint ventures), dominant or monopoly market positions (whether held individually or collectively) and the control of acquisitions or mergers.
22.1 | In this paragraph 22, the terms processor, processing and personal data will have the meanings given in the General Data Protection Regulation (GDPR); and Data Legislation |
means, as applicable, the Data Protection Act 1998 and the GDPR and any applicable equivalent legislation in any country. |
22.2 | The Company has notified registrable particulars under the Data Legislation of all personal data held or processed by it and: |
| 22.2.1 | has renewed those notifications and has notified any changes occurring in between those notifications as required by the Data Legislation; |
| 22.2.2 | has paid all fees payable up to Completion in respect of those notifications; |
| 22.2.3 | the contents of those notifications are complete and accurate; |
| 22.2.4 | copies of those notifications are contained in the Disclosure Bundle; and |
| 22.2.5 | so far as the Seller is aware, there has been no unauthorised disclosure of personal data outside the terms of those notifications. |
22.3 | No personal data has been transferred by the Company outside the European Economic Area. |
22.4 | The Company has: |
| 22.4.1 | complied in all material respects with the Data Legislation; |
| 22.4.2 | satisfied any requests for access to personal data; |
| 22.4.3 | established the procedures necessary to ensure continued compliance with the Data Legislation; and |
| 22.4.4 | complied with the requirements of the Data Legislation in respect of any processing of data carried out by a data processor on behalf of the Company, including by entering into a written contract with the data processor confirming that the data processor will only act on the instructions of the Company and copies of all such contracts are contained in the Disclosure Bundle. |
22.5 | The Company has not received any: |
| 22.5.1 | notice or complaint under the Data Legislation alleging non-compliance with the Data Legislation (including, without limitation, any information or enforcement notice, monetary penalty notice or any transfer prohibition notice); |
| 22.5.2 | claim for compensation for loss or unauthorised disclosure of data; or |
| 22.5.3 | notification of an application for rectification, erasure, restriction of processing of personal data, any request to exercise the right to data portability or any claim by any data subject to object to decision-making, including profiling based on points (e) or (f) of Article 6(1) of the GDPR (or equivalent Data Legislation), |
and the Seller is not aware of any circumstances which may give rise to the giving of any such notice or the making of any such notification.
22.6 | The Company has complied in all material respects with its obligations under the Privacy and Electronic Communications (EC Directive) Regulations 2003 in respect of the use of electronic communications (including e-mail, text messaging, fax machines, automated calling |
systems and non-automated telephone calls) for direct marketing purposes and the use of cookies. |
| 23.2.1 | those particulars of employment that an employer is obliged to give to an employee pursuant to section 1 of the Employment Rights Act 1996; |
| 23.2.4 | current bonus, commission, incentive arrangements and all other current benefits (whether contractual or discretionary); |
| 23.3.5 | the length of notice required to terminate each agreement or, if a fixed term, the expiry date of the fixed term and details of any previous renewals; and |
| 23.4.1 | anonymised copies of all contracts which apply to any person employed or engaged by the Company or in its business; |
23.8 | No former employee or worker is currently subject to post termination restrictions for the protection of the Company (save in relation to confidentiality). |
| 23.13.1 | on redundancy (in addition to statutory redundancy pay) or other termination or on a change of control; or |
23.14 | There are no outstanding loans made to employees or other workers of the Company or guarantees provided by the Company for the benefit of an employee or other worker of the Company. |
23.19 | No employee or worker engaged by the Company has any accrued but untaken or unsatisfied annual leave from previous holiday years. |
23.21 | No disciplinary action has been taken by the Company against any of the Company's employees, workers, former employees or former workers of the Company within the previous two years. |
23.22 | No grievance has been raised by any employee, worker, former employee or former worker of the Company within the previous two years. |
comply with any order for the re-instatement or re-engagement of any employee of the Company. |
23.26 | No questionnaire has been served on the Company under any discrimination legislation which remains unanswered in full or in part. |
23.29 | All contracts between the Company and its directors and employees comply with any relevant requirements of section 188 of the Companies Act (or section 319 of the Companies Act 1985). |
23.30 | The Company has no agreement or arrangement with, and does not recognise, any trade union or any other body representing its employees or workers. |
23.32 | The Company has not been the subject of any strike action or industrial action short of strike or other industrial dispute in the last three years. |
respect of any accident or injury which are not fully covered by insurance and there are no enforcement proceedings or investigations, so far as the Seller is aware, pending or likely by the Health and Safety Executive against the Company. |
23.38 | The Company has in relation to each of its employees or workers discharged fully its obligations to pay the minimum wage under the National Minimum Wage Regulations 1999. |
23.40 | There are no agreements or arrangements with third parties for the provision of staff to the Company. |
23.41 | No request for information has been served on the Company under the Agency Workers Regulations 2010 which remains unanswered in full or in part. |
| 24.2.1 | the total number of Contractors engaged or contracted by the Company as at Completion, including details of those Contractors supplied via personal service companies or umbrella companies; |
| 24.2.2 | details of the clients to whom the services of each Contractor are provided as at Completion; and |
| 24.2.3 | details of any payments that the Company is required to give to any Contractor during any period in which it or he is unable to provide services. |
24.3 | The Company has not entered into an agreement or arrangement with any Contractor on terms materially different to its standard terms, copies of which are included in the Disclosure Documents. |
24.6 | No Temporary Worker has any accrued but untaken or unsatisfied annual leave from previous holiday years. |
24.7 | No questionnaire has been served on the Company in relation to any Contractor under any discrimination legislation which remains unanswered in full or in part. |
24.10 | The Company has in relation to each of its Temporary Workers discharged fully its obligations to pay the minimum wage under the National Minimum Wage Regulations 1999. |
24.12 | The Company has complied with all of its obligations pursuant to the Agency Workers Regulations 2010 in respect of all Contractors. |
24.13 | The Seller is not aware of any breach by any client of the Company of the Agency Workers Regulations 2010 in respect of any Contractors supplied by the Company. |
24.14 | The Company has maintained adequate and suitable records, including those required by applicable law, for all Contractors. |
25.2 | All material particulars of (or copies of the relevant documents relating to) the Pension Scheme have been Disclosed to the Buyer. |
25.3 | There are no practices relating to benefits from the Pension Scheme which are not reflected in the documentation Disclosed. |
25.4 | No undertaking or assurance (whether or not constituting a legally binding commitment) has been given to any Employee about: |
| 25.4.1 | the continuation of the Pension Scheme or any alteration to or exception from its terms or the increase or improvement of benefits or the exercise of any discretion; or |
| 25.4.2 | the introduction of, or a contribution towards, any new or alternative pension or life assurance arrangement. |
25.5 | The Company has not granted any ex gratia pension or other similar payment to any Employee or their dependants. |
25.7 | The Life Assurance Schemes only provides a lump sum on the death of an Employee in service. All such sums are secured under an insurance policy with a reputable insurance company. |
25.9 | All Tax due prior to Completion for or in respect of the Employees from the Company in respect of the Pension Scheme to HM Revenue & Customs has been paid. |
25.10 | No claim (other than routine claims for benefits) concerning the Pension Scheme (including, without limitation, contact with the Pensions Regulator, the Pensions Advisory Service or the |
Pensions Ombudsman) has been made against the Seller or the Company and so far as the Seller is aware none is pending or threatened. The Seller is not aware of any matter which might give rise to such a claim. |
25.12 | Before 1 October 2012, the Company complied with its duty to facilitate access to a stakeholder pension scheme under section 3 of the Welfare Reform and Pensions Act 1999. |
26.2 | As at the date of this agreement, the Company has no right, interest, or liability (whether actual or contingent) in respect of any property, land or buildings and does not own, occupy or use any property, land or buildings. |
In this paragraph 27, unless the context requires otherwise:
Environment means the natural and man-made environment including all or any of the following media, namely air, water and land (including air within buildings and other natural or man-made structures above or below the ground) and any living organisms (including man) or systems supported by those media;
EHS Laws means all laws, statutes, regulations, secondary legislation, common law, directives, judgments and decisions of any court or tribunal, and legally binding codes of practice and guidance notes in so far as they relate to or apply to the Environment or health and safety of any person;
EHS Matters means all matters relating to:
| (a) | pollution or contamination of the Environment or the creation of any nuisance including by noise, vibration or odour; |
| (d) | the condition, protection, maintenance, remediation, reinstatement, restoration or replacement of the Environment or any part of it; |
Harm means harm to the Environment, and in the case of man includes offence caused to any of his senses or harm to his property;
Hazardous Substances means any material, substance or organism which, alone or in combination with others, is capable of causing Harm, including radioactive substances and materials containing asbestos;
Historic Property means property formerly owned, occupied or held by the Company; and
Waste means any waste, including any by-product of an industrial process and anything which is discarded, disposed of, spoiled, abandoned, unwanted or surplus, irrespective of whether it is capable of being recovered or recycled or has any value.
27.2 | The Seller is not aware of any Hazardous Substances at, on or under the Property, nor are they aware of any Hazardous Substances being emitted, escaping or migrating from the Property. |
| 2.1.1 | seven years from the date of Completion in the case of any Tax Claim, any Title Claim or any Indemnity Claim (other than pursuant to clause 14.1.1 of the agreement); or |
| 2.1.2 | eighteen months from the date of Completion in the case of any other Warranty Claim and in the case of a Claim pursuant to clause 14.1.1 of the agreement, |
and, in any event, within 30 Business Days after the Buyer becomes aware of the matter which gives rise to the Warranty Claim, Tax Claim, Indemnity Claim or Title Claim. For the avoidance of doubt, any failure by the Buyer to give written notice of a claim within such 30 Business Day period, will not prevent the Buyer pursing such claim (provided written notice of such claim is given to the Seller within the relevant time periods set out in paragraphs 2.1.1or 2.1.2 (as applicable)), but any such failure to notify within such 30 Business Days will be taken into account in assessing any Loss or damages suffered by the Buyer, and the Seller shall not be liable for any Loss or damage suffered to the extent caused by any failure of the Buyer to give notice of the claim within such 30 Business Day period.
| 4.1.1 | was taken into account, provided for or reserved in the Accounts or the Management Accounts (including by way of a note or statement in any report forming part of any of those accounts); or |
| 4.1.2 | was taken into account in determining an adjustment to the Purchase Price under clause 2, or clause. |
| (c) | by the Company, or any of its directors or employees after Completion (other than as required by law or under a legally binding agreement entered into by the Company before Completion); |
| 4.3.4 | the sale or other transfer of shares in or the assets or business of the Company after Completion; |
| 4.4 | The Seller shall not be liable for a Warranty Claim and/or (where paragraph 4.4.1 applies) an Indemnity Claim, and so no Warranty Claim and/or an Indemnity Claim may be brought: |
| 4.4.2 | to the extent that such Warranty Claim arises wholly or partly out of or in connection with, or the amount of such claim is increased by: |
| (a) | any breach by the Buyer of any of its obligations under this agreement or any other document in the Agreed Form; or |
| (i) | publication or withdrawal of any decision of the courts or any other relevant regulatory authority after the date of this agreement (provided |
| that this paragraph 4.4.2(b)(i) shall not apply in relation to any Title Claim); or |
except (in each case) as announced prior to the date of this Agreement.
| 4.5 | The Seller shall not be liable for a Warranty Claim, and so no Warranty Claim may be brought, to the extent that the matter or circumstance giving rise to the Warranty Claim is Disclosed. |
| 7.1.5 | the Buyer shall consult, and shall ensure that the Company consults with the Seller on and shall take into consideration and account such action (or omission) as the Seller may reasonably request to conduct, contest, avoid, dispute, resist, mitigate, appeal, compromise, defend, counter-claim or settle the relevant third party claim when dealing with the relevant third party claim, and the Buyer shall be obliged to act (and shall procure the Company shall act) on any such request, except where such request is reasonably likely to have a materially adverse effect on the commercial interests of the Group or of the Buyer's Group as a whole; and |
| practicable after written request by the Seller, provide, at the cost of the Seller, such information as a prospective insurer may reasonably require. |
Neither the Buyer nor the Company may recover damages or otherwise obtain payment, reimbursement or restitution (whether under the Warranties, Tax Covenant, an Indemnity Claim or otherwise) more than once in respect of the same matter, liability or loss.
The satisfaction by the Seller of any Claim, Indemnity Claim or any other claim under this agreement shall be deemed to constitute a reduction in the aggregate consideration payable by, or due from, the Buyer to the Seller relating to the Shares.
Nothing in this schedule or this agreement restricts or limits the Buyer's and/or the Company’s general obligation at law to mitigate any loss or damage which it may incur as a result of a matter or circumstance giving rise to a Claim (other than a Tax Claim arising under the Tax Covenant) or any other claim under this agreement. Where such general obligation at law to mitigate does not apply to any loss or damage which the Buyer and/or the Company may incur, the Buyer will (and shall procure the Company will) take all reasonable steps to mitigate any loss or damage which it may incur in consequence of a matter or circumstance giving rise to a Claim (other than a Tax Claim arising under the Tax Covenant) or any other claim under this agreement.
| 13.1 | If a claim arises relating to a liability or alleged liability of the Company or the Buyer, to a third party which gives or may give rise to an Indemnity Claim (a Third Party Indemnity Claim) then, at any time before any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made relating to that Third Party Indemnity Claim or that Third Party Indemnity Claim is otherwise disposed of, the Seller may give notice to the Buyer that the Seller elect to assume the conduct of any dispute, compromise, defence or appeal of the Third Party Indemnity Claim and of any incidental negotiations on the following terms: |
| 13.1.1 | the Seller shall indemnify the Buyer and the Company against all liabilities, losses, proceedings, claims, damages, costs and expenses reasonably incurred (including legal costs and expenses reasonably incurred), fines and penalties (whether civil or criminal), charges and demands which they may incur in taking any action as the Seller may request under paragraphs 13.1.2 and 13.1.3 below; |
| 13.1.2 | the Buyer will and shall ensure that the Company makes available to the Seller such persons and all such information as the Seller may reasonably request for assessing, contesting, disputing, defending, appealing or compromising the Third Party Indemnity Claim; save that, subject to paragraph 14, neither the Buyer nor the Company shall be obliged to provide any documents or information which are subject to legal professional privilege and where any such disclosure of such information to the Seller would result in the Buyer losing such legal professional privilege; |
| (a) | takes such action to assess, contest, dispute, defend, appeal or compromise the Third Party Indemnity Claim as the Seller may reasonably request provided the Buyer shall not be obliged to act on any such request where such request is reasonably likely to have a materially adverse effect on the commercial interests of the Group or of the Buyer's Group as a whole; |
| (b) | uses advisers nominated by the Seller in connection with the matters referred to in paragraphs (a) above and, if the Seller request, allow the Seller exclusive conduct of the Third Party Indemnity Claim; and |
| 13.1.4 | the Seller shall keep the Buyer informed of the progress of the Third Party Indemnity Claim and provide the Buyer with copies of all relevant documents and such other information in the Seller's possession as may reasonably be requested by the Buyer. |
| 13.2 | If a claim arises relating to a Third Party Indemnity Claim, then until the Seller give notice under paragraph 13.1 or, if earlier, until any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made relating to the relevant Third Party Indemnity Claim or the Third Party Indemnity Claim is otherwise finally disposed of, the Buyer shall: |
| 13.2.1 | ensure that the Company consults with the Seller, and takes account of the reasonable requirements of the Seller, relating to the conduct of any dispute, defence, compromise or appeal of the Third Party Indemnity Claim; |
| 13.2.2 | keep, or ensure that the Company keeps, the Seller promptly informed of the progress of the Third Party Indemnity Claim and provide, or ensure that or the Company provides, the Seller with copies of all relevant documents and such other information in the possession of the Buyer or the Company as reasonably requested by the Seller; save that, subject to paragraph 14, neither the Buyer nor the Company shall be obliged to provide any documents or other information which are subject to legal professional privilege and where any such disclosure of such information to the Seller would result in the Buyer losing such legal professional privilege; and |
| 14. | LEGAL PROFESSIONAL PRIVILEGE |
| 14.1 | The Buyer agrees to provide and procure that the Company provides information to the Seller which is intended to be protected by legal professional privilege on the following conditions: |
| 14.1.1 | the parties agree that no such privilege shall be waived as a result of it being so provided; and |
| 14.1.2 | the Seller undertake to take all reasonable steps to preserve any privilege in any documents or communications shared with them by not sharing any such documents or communications with anyone without the Buyer's prior written consent (not to be unreasonably withheld or delayed). |
Part A – Documents to be delivered by the Seller
| 3. | An acknowledgement and release in the Agreed Form from the Seller releasing the Parent and the Company from: |
| 3.2 | any sums due, owing or outstanding between the Seller or any Associate of the Seller and the Parent or the Company; and |
| 3.3 | any commitments, liabilities and obligations which may be owing to the Seller or any Associate of the Seller by the Parent or the Company. |
| 5. | A letter from the Seller confirming that they have ceased to be a registrable person (within the meaning of section 790C of the Companies Act 2006) in relation to the Parent and the Company. |
| 7. | A certified copy of any power of attorney under which any document delivered on Completion has been executed on behalf of the Seller. |
| 8. | Statements from each bank at which the Parent and the Company has an account giving the balance at close of business on the last Business Day before Completion and all cheque books in current use. |
| 9. | Copies of all bank mandates of the Parent and the Company together with a blank mandate in respect of each bank account maintained by the Company. |
| 11. | Letters of non-crystallisation in respect of all charges, debentures and Encumbrances granted by the Parent and the Company and over or in respect of any Shares; |
| 12. | Irrevocable powers of attorney in the Agreed Form executed by each of the holders of the Shares in favour of the Buyer and its directors to enable the Buyer (pending registration of |
| the transfers of the Shares) to exercise all voting and other rights attaching to the Shares and to appoint proxies for this purpose following Completion. |
| 13. | The BAT Confirmation. |
| 14. | Certified copy evidence of the decisions of the directors to be taken at Completion by the directors of the Company and the Parent referred to in Part B and C of this Schedule. |
| 15. | The Debtors Assignment duly executed by the Seller. |
| 16. | A notice in the Agreed Form given by each Target Group Company to the appropriate audit authority under section 523 of the Companies Act in respect of the resignations referred to in paragraph 16. |
| 17. | A fully executed deed of termination of the RW Consultancy Agreement. |
| 18. | Evidence of valid service and acceptance of three months' notice in respect of termination of the Licence to Occupy. |
| 19. | Evidence of (i) variation of the IT Contract such that either party may terminate such agreement on three months' notice and (ii) valid service and acceptance of three months' notice in respect of termination of the IT Contract. |
| 20. | A signed notice of termination of the Licence to Occupy by the Company and Fusion People Limited in the Agreed Form. |
Part B– Decisions to be taken at Completion by the directors of the PARENT
| 3. | The transfers of the Shares referred to in paragraph 1 of Part A of this Schedule will be approved for registration (subject to stamping). |
| 4. | The resignations of the officers referred to in paragraph 2 of Part A of this Schedule will be accepted with effect from Completion. |
| 6. | Any other Agreed Form documents which the Parent is a party to will be approved and executed by the Parent and delivered to the Buyer. |
Part C – Decisions to be taken at Completion by the directors of the COMPANY
| 1. | Any persons who the Buyer may nominate will be appointed as additional officers. |
| 2. | The registered office of the Company will be changed to any address that the Buyer may direct. |
| 3. | The transfers of the Minority Shares will be approved for registration (subject to stamping). |
| 4. | The resignations of the officers referred to in paragraph 2 of Part A of this Schedule will be accepted with effect from Completion. |
| 5. | The actions at paragraph 18, 19 and 20 of Part A of this Schedule will be approved. |
| 6. | Any other Agreed Form documents which the Company is a party to will be approved and executed by the Company and delivered to the Buyer. |
Part D- Other action to be taken by the Seller and other items to be delivered by the Seller
| 2.1 | the Minority Shareholders Sale Agreements and the deliverables thereunder, signed by each of the Minority Shareholders; and |
| 2.2 | executed transfers of the Minority Shares in favour of the Buyer (signed by the relevant Minority Shareholders). |
Part E – Documents to be delivered and actions to be taken by the Buyer
| 2. | A certified copy of any power of attorney pursuant to which this agreement and any other Agreed Form documents to which the Buyer is a party are executed. |
| 3. | The Minority Shareholder Sale Agreements with each of the Minority Shareholders duly executed by the Buyer. |
| 5. | Any other Agreed Form documents the Buyer is a party to will be approved and executed by the Buyer and delivered to the Seller. |
Part F – Documents to be delivered and actions to be taken by Staffing 360
| 2. | The Minority Shareholder Sale Agreements with each of the Minority Shareholders duly executed by Staffing 360. |
| 3. | A certified copy of any power of attorney pursuant to which this agreement and any other Agreed Form documents to which Staffing 360 is a party are executed. |
Part A – Definitions and Interpretation
For the purposes of this Schedule, the following words and expressions will have the following meanings:
Accounts means the Accounts, but excluding all notes to them (if any);
Accounts Relief means any amount which is treated as an asset in the Relevant Accounts or has been taken into account in reducing or eliminating any provision for deferred tax in the Relevant Accounts or reducing or eliminating a provision which, but for that amount being so treated or appearing as a Relief, would have been made in the Relevant Accounts;
Buyer's Relief means:
CAA means the Capital Allowances Act 2001;
Claim for Tax means any notice, demand or assessment issued or action taken by or on behalf of any Tax Authority and/or the compilation and submission of any return information or computation to any Tax Authority from which it appears that the Company or any member of the Buyer's Group is or may be placed under a Tax Liability in respect of which the Buyer has or is likely to have a claim against the Seller under this agreement;
Company means the Parent and the Company;
CTA 2009 means the Corporation Tax Act 2009;
Event means any transaction, deed, act, event, fact, circumstance or omission (in each case, whether or not carried out by the Company and whether or not the Company is a party to it), and without limitation, will include:
| (a) | entry into of the agreement, satisfaction of any conditions subject to which the agreement is made and Completion; |
| (b) | transfer of value, death of any person, the appointment of any receiver or liquidator and the winding-up or migration of any company, trust or person; |
FA means the Finance Act;
Group Relief means any Relief available between members of a group for Tax purposes;
ICTA means the Income and Corporation Taxes Act 1988;
IHTA means the Inheritance Tax Act 1984;
ITA means the Income Tax Act 2007;
ITEPA means the Income Tax (Earnings & Pensions) Act 2003;
PAYE means the mechanism prescribed by the Tax Statutes for the collection of Tax and sums to which Part 11 of ITEPA (pay as you earn) and regulations made or deemed to be made thereunder apply and Class 1 and Class 1A contributions referred to in section 1(2) of the Social Security Contributions and Benefits Act 1992 (outline of contributory system);
profits includes profits, gains, income, earnings, receipts, value and any other amount or element (whether real, notional or deemed) on, or in respect of or by reference to which any Tax is liable to be assessed or charged or is payable;
Relevant Accounts means the Management Accounts;
Relief means any right to repayment of any Tax or set-off or any relief, exemption, loss, allowance, set-off or credit in respect of any Tax or any pre-payment of any Tax or any deduction from income, profits or gains for the purposes of any Tax;
Tax or Taxation means all forms of taxation, and all duties, imports, levies, withholdings or liability whether past or present and whether imposed in the United Kingdom, Germany, Qatar or elsewhere in each case in the nature of taxation and insofar as imposed by or administered by a Tax Authority and without limitation includes:
| (c) | any other taxes, levies, duties, rates, contributions, charges, imposts, deductions, withholdings similar to, corresponding with or replacing or replaced by any of them; and |
| (d) | any settlement payment, penalty, fine, surcharge or interest payable in addition to or in connection with or pursuant to any legislation or regulations in respect of or |
| any return or information required to be compiled or maintained or provided to any Tax Authority in connection with any of them; |
Tax Authority means, in the United Kingdom, HM Revenue & Customs, the Assets Recovery Agency, any officer or inspector of any of them and outside the United Kingdom, without limitation, any federal, governmental, regulatory or statutory body and any local, district or municipal authority competent to impose and/or collect and/or administer any Tax;
Tax Covenant means the covenants set out in paragraph 1 of Part B of this Schedule;
Tax Statutes means any primary or secondary statute, instrument, enactment, order, law, by-law or regulation making any provision for or in relation to Tax;
Tax Warranties means the warranties set out in Part C of this Schedule;
TCGA means the Taxation of Chargeable Gains Act 1992;
TIOPA means the Taxation (International and other Provisions) Act 2010;
TMA means the Taxes Management Act 1970;
Unavailability means in relation to the whole or any part of any Relief, the unavailability, non-existence, reduction, loss, claw-back, disallowance or cancellation of that Relief and Unavailable will be construed accordingly;
VAT means value added tax as provided for by VATA and legislation amending and/or supplementing the same; and
VATA means the Value Added Tax Act 1994.
| 2.3.3 | any amounts demanded or assessed or payable to a Tax Authority as if they were recoverable as a Tax; |
| 2.3.5 | any amounts demanded or assessed or payable to a Tax Authority in respect of or on account of any Tax. |
and in such a case the amount of the Relief so Unavailable or utilised or set-off will be treated for the purposes of this Schedule as a Tax Liability of the Company or of the relevant member of the Buyer's Group, unless that Relief would have operated as a deduction from or as a set-off against gross income, profits or gains, in which case, in the case of the Unavailability of the Relief the Tax Liability will be equal to the amount of Tax which would, on the basis of the standard rates of Tax current at the date of this agreement and on the assumption that there were available adequate income profits and gains, have been saved on utilisation of the Relief if it were not Unavailable and in the case of the utilisation or the setting-off of the Relief, the Tax Liability will be equal to the amount of the Actual Tax Liability which would have arisen but for that utilisation or setting-off of the Relief;
before the date of this agreement and any subordinate legislation made under the statutory provision before the date of this agreement; |
2.7 | Any liability of the Company to any interest, fine, penalty or surcharge will be deemed to arise as a result of an Event occurring on or before Completion to the extent that it relates to any Tax Liability in respect of which a claim may be made against the Seller under the Tax Covenant or to any failure to comply with any reporting or other obligation relating to that Tax Liability. |
1.1 | The Seller covenant with the Buyer (for itself and as trustee for any successor in title to the Buyer of the Shares) that the Seller will at all times pay to the Buyer an amount equal to: |
| 1.1.2 | any Tax Liability falling within any of paragraphs 2.4.2 to 2.4.4 (both inclusive) of Part A of this Schedule; |
| 1.1.4 | any Actual Tax Liability arising as a consequence of any change in the accounting bases or policies adopted by the Company after Completion, to the extent that such change was necessary at Completion for the Company to comply with the law or standards applicable at Completion; and |
| 1.1.5 | the amount of any reasonable third party costs and expenses (excluding recoverable input VAT) properly incurred by the Company or the Buyer in connection with any such Tax Liability or the Claim for Tax relating to it or in connection with any successful claim under this Schedule. |
| 1.4.1 | any Tax that the Company becomes liable to pay by reason of any failure to make full and proper deductions in respect of any employment Tax; |
| 1.4.4 | the receipt by the Buyer (or the Company or any member of the Buyer's Group, as the case may be) of any amounts payable under this paragraph 1.4 later than the time when the Actual Tax Liability in question arises; |
3.1 | The Seller will not be liable for breach of any Tax Warranties or under the Tax Covenant for any Tax Liability to the extent that: |
| 3.1.1 | it has been provided for in the Relevant Accounts or was discharged before Completion; |
| 3.1.2 | it arises as a result of a transaction in the ordinary course of business of the Company between the Accounts Date and Completion; |
| 3.1.3 | it would not have arisen but for a change after Completion: |
| (a) | in the accounting bases upon which the Company values its assets (other than a change made in order to comply with relevant accounting standards); or |
| (b) | in the length of any accounting period for Tax purposes of the Company; |
| 3.1.4 | such liability or other amount would not have arisen but for a voluntary act, transaction or omission of the Company or any member of the Buyer's Group carried out after Completion but excluding any act: |
| (a) | carried out pursuant to a legally binding obligation entered into by the Company on or before Completion or imposed on the Company by any regulation or requirement having the force of law; |
| (b) | necessary to comply with any legislation enacted before Completion, any decision or any court or tribunal released to the public before Completion or any regulatory requirement in force at Completion; |
| (c) | necessary to conform to financial reporting or accounting standards or generally accepted accounting practices in force at Completion; |
| (d) | occurring in the ordinary course of business of the Company as carried on at Completion (save that, for the avoidance of doubt, cessation of trade or a change in the nature or conduct of any trade shall be deemed to be outside the ordinary course of business); or |
| (e) | taking place with the written approval of the Seller; |
| 3.1.5 | such liability or other amount arises or is increased as a direct result of: |
| (a) | any change in Tax Legislation or the published practice of any Tax Authority; or |
| (b) | any increase in the rate of Tax; |
(in each case enacted after Completion, with retrospective effect);
| 3.1.6 | recovery (less costs and expenses) has been made by the Buyer under this Agreement in respect of the same subject matter, including for the avoidance of doubt, the provisions dealing with Leakage; |
| 3.1.7 | such liability or other amount would not have arisen or would have been reduced or eliminated but for any claim, election, surrender or disclaimer made or notice or consent given or any other thing done, after Completion (other than one, the making, the giving or doing of which was taken into account in computing any provision for Tax in the Relevant Accounts) under, or in connection with, the provisions of any enactment or regulation relating to Tax by the Company or any member of the Buyer's Group; |
| 3.1.8 | such liability or other amount would not have arisen or would have been reduced or eliminated but for the failure or omission by the Company or any member of the Buyer's Group to make an election, surrender or disclaimer or give any notice or consent under or in connection with any enactment or regulation relating to Tax at Completion where the making or giving of which was taken into account in computing any provision in the Relevant Accounts and the requirement to make the claim etc was discernible from the face of the Relevant Accounts or the Seller have notified the Buyer or the Company that a claim etc is required to be made at least 20 Business Days before the expiry of any deadline relevant for the claim etc; |
| 3.1.9 | any Relief (other than an Accounts Relief or a Buyer's Relief) is available to the Company to set against or otherwise mitigate the Tax Liability or other amount (or is for no consideration made available by the Seller to the Company) or would have been so available but for the setting off of the Relief against the profits or a Tax Liability, in either case in respect of which the Seller would not have been liable to make a payment under this Schedule; |
| 3.1.10 | the income, profits or gains in respect of which the liability or other amount arises were actually earned, accrued or received by the Company before Completion and actually remain in the Company at Completion, but were not reflected in the Relevant Accounts; |
| 3.1.11 | such Liability or other amount has been compensated for by a third party without cost to the Buyer or the Company; |
| 3.1.12 | such liability is one of interest and/or penalties arising under the Corporation Tax (Instalment Payment) Regulations 1998 (SI 1998/3175) arising as a result of or in consequence of income, profits or gains earned accrued or received after Completion; |
| 3.1.13 | such liability or other amount consists of stamp duty or stamp duty reserve tax payable on the transfer or agreement to transfer the Shares pursuant to the agreement or the Minority Shares pursuant to the Minority Shareholder Sale Agreements; and |
| 3.1.14 | such liability or other amount arises or is increased as a result of either the Company or the Buyer failing to act in accordance with any of its obligations set out in this Schedule. |
3.2 | The provisions of Schedule 4 (Seller's Limits) shall apply to this Schedule as if set out herein, save that in case of any contradiction between the provisions of Schedule 4 (Seller's Limits) and the provisions of this Schedule the provisions of this Schedule shall prevail. |
3.3 | The Seller shall not be liable under this Schedule (including in respect of a breach of a Tax Warranty unless they have received from the Buyer notification of the Claim for Tax including reasonable details of the nature and quantum of the claim (as they are then known) together with any relevant deadlines relating to the Claim for Tax on or before the seventh anniversary of Completion. |
3.4 | In the event of there being any assignment of the benefit of the whole or any part of this agreement by the Buyer, the maximum amount payable pursuant to this Schedule to any assignee of that benefit will not exceed the amount which would have been payable to the Buyer if there had been no such assignment. |
4.1 | If the Buyer or the Company receives a Claim for Tax which is likely to give rise to a liability of the Seller under this Schedule, the Buyer shall (or shall procure that the Company shall) as soon as reasonably practicable and in any event ten Business Days before the expiry of any deadline relevant to responding to or appealing against the Claim for Tax give written notice of such Claim for Tax to the Seller giving reasonable details of the nature and quantum of the Claim for Tax in so far as available at the time notice is given. |
4.2 | If the Seller receive a Claim for Tax which is likely to give rise to a liability of the Seller under this Schedule, the Seller shall as soon as reasonably practicable and in any event ten Business Days before the expiry of any deadline relevant to responding to or appealing against the Claim for Tax give written notice of such Claim for Tax to the Buyer giving reasonable details of the nature and quantum of the Claim for Tax in so far as available at the time notice is given. |
4.3 | The Buyer or the Company will have the conduct of the Claim for Tax, and the Buyer will: |
| 4.3.1 | procure that the Company shall keep the Seller reasonably informed of the progress of and material developments in relation to the Claim for Tax; |
| 4.3.2 | provide the Seller with copies of all material correspondence and other written communications in relation to the Claim for Tax other than those which have been prepared by the Buyer or its professional advisers with a view to assessing the merits of the claim or are otherwise subject to legal professional privilege; |
| 4.3.3 | and will procure that the Company shall give the Seller and their professional advisers reasonable access at reasonable times (and on reasonable notice) to any relevant documents, records and personnel within its control, for the purposes of enabling the Seller to assess the Claim for Tax; |
| 4.3.4 | the Buyer shall take into consideration and account such action as the Seller may reasonably request to avoid, dispute, resist, mitigate, compromise or defend the relevant third party claim when dealing with the Claim for Tax and the Buyer shall act on any such request unless the Buyer reasonably considers the request to be materially prejudicial to the Tax affairs of the Company. |
4.4 | The Seller will, and will procure that all of the agents and advisers of the Seller (if any) will, keep confidential all information which they receive about the and/or the Buyer and/or the Buyer's Group or its or their affairs or business as a result of this paragraph 4. |
5. | BUYER'S COVENANT |
| 5.1.1 | an amount equal to any Tax for which the Seller becomes liable as a result of any Group Company failing to pay any Tax; and |
| 5.1.2 | all costs and expenses reasonably incurred by the Seller in connection with the Tax giving rise to a claim under 5.1 and with making such a claim. |
5.2 | The Buyer shall not be liable under 5.1 to the extent that: |
| 5.2.1 | the Seller has already recovered an amount in respect of the Tax from a Group Company pursuant to any statutory right of recovery; or |
| 5.2.2 | the Seller is liable under paragraph 1 above in respect of the Tax or would have been liable had the Seller not paid the Tax. |
5.3 | No Seller will seek recovery under any statutory right of recovery to the extent that a payment in respect of the relevant Tax has been made under this 5.1. |
6. | RECOVERY FROM THIRD PARTIES |
6.1 | Where the Seller has paid an amount under the Tax Covenant and the Buyer or the Company actually recovers any such amount (or part thereof), the Buyer shall account to the Seller for the lesser of: |
| 6.1.2 | the amount paid by the Seller under Paragraph 1 of Part B in respect of the Tax Liability in question. |
1.2 | The amount of the provision for deferred Taxation contained in the Accounts was, at the date the Accounts were prepared, adequate and fully in accordance with accountancy practices generally accepted in the United Kingdom and commonly adopted by companies carrying on business similar to those carried on by the Company. |
Since the Accounts Date:
2.1 | the Company has not been involved in any Event occurring outside of the ordinary course of its business; |
2.2 | no accounting period of the Company has ended for the purposes of Taxation; and |
2.3 | no disposal of any capital asset has taken place or other event occurred which will or may have the effect of crystallising a liability to Taxation which has not and would have been included in the provision for deferred Taxation contained in the Accounts if such a disposal or other event had been planned or predicted at the date on which the Accounts were drawn up. |
3. | REVENUE EXPENDITURE SINCE THE ACCOUNTS DATE |
All expenditure of a revenue nature which the Company has incurred since the Accounts Date or which it may incur under any subsisting commitment, will be deductible as a trading expense of a trade carried on by the Company.
4. | ADMINISTRATION |
4.3 | In the six years to Completion, the information provided by the Company in or with any return was sufficient for the officer of the relevant Tax Authority to be reasonably expected |
to be aware (within the relevant time limits) of any under assessment or excessive Relief made or granted or which could be made or granted as a consequence of that return. |
4.5 | All Tax Liabilities of the Company arising in respect of all periods ending on or before the Accounts Date have been agreed with the relevant Tax Authority insofar as legally capable of being agreed. None of the tax returns filed by the Company are or contain information which is only provisional. |
| 4.6.2 | in respect of the tax returns referred to in paragraph 3.6.1, any amendment, enquiry, discovery, assessment or discovery determination which has been made by any Tax Authority; |
| 4.6.3 | all agreements, concessions or other arrangements currently subsisting which have been made with or by any Tax Authority in respect of the Company; and |
4.10 | The Company has obtained all such consents and clearances from Tax Authorities it was required by law to obtain. |
4.13 | All claims, rulings, elections, consents and clearances, the making of which has been taken into account in the Accounts have been made and remain valid and effective. |
The Company has maintained all such records as it is required to have maintained by law.
| 6.1.1 | all groups and consolidated groups for Taxation purposes and fiscal unities of which the Company is, or has been, a member within the last seven years; |
| 6.1.2 | every agreement relating to the use of Group Relief or allowance to which the Company is, or has been, a party within the last seven years; and |
| 6.1.3 | any arrangements for the payment of group Taxation liabilities to which the Company has ever been party. |
6.3 | The Company is not and never has been a party to a group payment arrangement in respect of any Tax. |
6.4 | Neither the execution nor completion of this agreement, nor any other event since the Accounts Date, will result in the clawback or disallowance of any Group Relief or allowance previously given. |
7.1 | For the purposes of this paragraph 7, references to intangible fixed assets mean intangible fixed assets, goodwill and intellectual property. |
8.1 | The Company has not been a party to any scheme or arrangement designed wholly or mainly for the purposes of avoiding or deferring Tax. |
8.4 | The Company has not been a party to, or acted as a promoter of, any notifiable arrangements or notifiable proposals within the meaning of section 306 of the FA 2004. |
| 8.5.1 | provision between it and other affected persons is not susceptible to adjustment by HM Revenue & Customs; and |
8.7 | The Company is not a party to any lease to which the provisions of sections 228A-228G of the CAA could apply. |
8.8 | The Company has not been a party to any designated scheme or notifiable scheme within the meaning of Schedule 11A to the VATA. |
11.5 | The Company has not received any foreign loan interest in respect of which double taxation relief will, or may, be restricted under section 50 of the TIOPA. |
11.6 | The Company has not been a party to any transaction or arrangement whereby it is, or may become, liable for Tax by virtue of sections 835U, 971 and 972 of the ITA (or regulations made under them). |
12. | SHARE OPTION SCHEMES |
The Company does not operate any approved or unapproved share option or profit sharing schemes and is not a participating company for the purposes of any such scheme.
13.3 | All employees, directors, or other persons engaged by the Company are engaged directly as employees and not as consultants. |
13.10 | The Company is not and never has been either a contractor or a sub-contractor for the purposes of Chapter III of Part III of the FA 2004. |
13.13 | The Company is not a MSC provider within the meaning of section 61B of the ITEPA. |
13.14 | The Company has fully complied with its obligations under Chapter 7 of Part 2 of the ITEPA. |
13.15 | The Company has fully complied with its obligations under Chapter 10 of Part 2 of the ITEPA. |
13.16 | The Company has complied with its reporting requirements under the Income Tax (Pay As You Earn)(Amendments No.2) Regulations 2015. |
13.17 | There are no agreements or arrangements, and have been no agreements or arrangements within the six years before the date of this agreement, with any managed service companies (within the meaning of section 61B of the ITEPA). |
The Company is not and has at no time been an investment company nor an investment trust company for the purposes of the Tax Statutes.
15.1 | The Company is a close company as defined in section 439 of the Tax Act but has never been a close investment-holding company as defined in section 34 of the Tax Act. |
16.1 | The Company has not entered into any transaction which has or may give rise to a direct or indirect charge to inheritance tax. |
| 17.2.4 | required by HM Revenue & Customs to give security under paragraph 4 of Schedule 11 to the VATA (power to require security and production of evidence). |
17.5 | The Company has never been treated as a member of a group under section 43 of the VATA and no application has ever been made for it so to be treated. |
on or before Completion as required by law and with due diligence and speed (subject only to the Buyer, at the request and reasonable notice of the Seller supplying all information in its and the Group Companies' possession and control that is reasonably necessary and granting access following Completion to the Seller and the approved agents of the Seller to any records and personnel of the Group Companies as the Seller may reasonably require) and in relation, but without limitation, to this obligation: |
| 1.1.2 | the Seller will take into account all reasonable comments and suggestions made by the Buyer or its duly authorised agents; |
1.4 | The Seller will indemnify the Buyer for all reasonable costs incurred by the Buyer in respect of matters to which this paragraph 1 relates. |
APPENDIX 1
A Spoke Ltd (11233763)
Bellward Properties Ltd (05921752)
Burnham Group Limited (05027388)
BMN APL Limited (10444259)
BMN Property Limited (10141752)
BWM Developments Limited (09891085)
CHC Global Search Limited (11359670)
Consilium Solutions Limited (08907216)
Cornbrook Developments Limited (10264854)
Fusion People Limited (04873626)
Hillman Saunders Limited (07394466)
Lacane Solutions Limited (10501926)
Maple Resourcing Ltd (03961512)
Ocwen 2016 Limited (09951282)
PRS Build Limited (10255568)
Prima S G H Limited (07277166)
Prima Services Group Limited (02542471)
Regmore Limited (10382333)
Selective Commercial Limited (08780502)
Short Message Services Limited (04333341)
Support On The Spot Limited (07025260)
The Kellan Group Plc (02228050)
Turrel Limited (10358898)
Urban People Recruitment Limited (10293951)
EXECUTED and DELIVERED as a DEED by LONGBRIDGE RECRUITMENT 360 LIMITED acting by a director, in the presence of: | Signature
/s/ Brendan Flood Director | ||
| Print name Brendan Flood | ||
Witness signature | /s/ Jinan Jawad | ||
Name (in BLOCK CAPITALS) | JINAN JAWAD | ||
Address | [REDACTED] | ||
|
|
SIGNED and DELIVERED as a DEED by RICHARD WARD in the presence of: | Signature /s/ Richard Ward | ||
Witness signature | /s/ illegible | ||
Name (in BLOCK CAPITALS) |
| ||
Address | [REDACTED] | ||
|
|
EXECUTED as a deed by STAFFING 360 SOLUTIONS, INC acting by a director, in the presence of: | Signature
/s/ Brendan Flood Director |
| Print name Brendan Flood |
Witness signature | /s/ Georgia Joseph |
Name (in BLOCK CAPITALS) | GEORGIA JOSEPH |
Address | [REDACTED] |
|
|