Exhibit 10
EXECUTION COPY
CONFIDENTIAL TREATMENT
Portions of this document have been redacted pursuant to a
Request for Confidential Treatment filed with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934, as amended. Redacted portions are indicated
with the notation "[***]"
ASSET PURCHASE AGREEMENT
by and among
---------------
WILBASS LIMITED
as Purchaser,
---------------
ADVENTIS LIMITED
and
ADVENTIS CORPORATION
as Sellers
Dated April 2, 2006
TABLE OF CONTENTS
Page
ARTICLE I SALE AND PURCHASE OF ASSETS.........................................1
1.1. Purchase of Assets of Limited...........................1
1.2. Purchase of Assets of AC................................4
1.3. Excluded Assets.........................................6
ARTICLE II PURCHASE PRICE AND COMPLETION......................................7
2.1. Purchase Price..........................................7
2.2. Assumption of Liabilities...............................7
2.3. Time and Place of Completion............................8
2.4. Calculation of Purchase Price...........................8
2.5. Lease Holdback; Bare License to Occupy Premises.........9
2.6. Completion Deliveries..................................12
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS........................14
3.1. Organization and Good Standing.........................14
3.2. Due Authorization......................................15
3.3. No Violation or Conflict...............................15
3.4. Litigation.............................................15
3.5. No Approvals...........................................15
3.6. Accuracy of Disclosure.................................15
3.7. Brokers................................................16
3.8. Title to Assets; Encumbrances..........................16
3.9. Germany Operations.....................................16
3.10. Intellectual Property..................................16
3.11. Employees and Related Liabilities......................17
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER.......................17
4.1. Organization and Good Standing.........................17
4.2. Due Authorization......................................17
4.3. No Violation or Conflict...............................17
4.4. Litigation.............................................18
4.5. Brokers................................................18
4.6. Financial Condition of Purchaser.......................18
ARTICLE V COVENANTS .......................................................18
5.1. Conduct of Business....................................18
5.2. Confidentiality........................................19
5.3. Value Added Tax........................................19
5.4. Employees..............................................21
5.5. Assumed Contracts......................................22
5.6. Receivables............................................22
5.7. Expenses...............................................23
5.8. Other Agreements; Further Assurances...................23
5.9. No Voluntary Insolvency................................23
5.10. Exclusivity............................................24
5.11. Announcements; Notices.................................24
5.12. Landlord's Consent.....................................24
5.13. Use of Intellectual Property...........................24
5.14. Client Confidentiality Obligations.....................24
ARTICLE VI CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS...................25
6.1. Representations and Warranties True at Completion......25
6.2. Release and Consent of Chase...........................25
6.3. Release by Behrman.....................................25
6.4. Board Approval.........................................25
6.5. Completion Deliveries..................................25
ARTICLE VII CONDITIONS PRECEDENT TO SELLERS' OBLIGATIONS.....................25
7.1. Representations and Warranties True at Completion......25
7.2. Consents...............................................26
7.3. Board Approval.........................................26
7.4. Completion Deliveries..................................26
ARTICLE VIII TERMINATION OF AGREEMENT........................................26
8.1. Termination............................................26
8.2. Survival...............................................26
8.3. Letter of Intent and Non-Disclosure Agreement..........26
ARTICLE IX SURVIVAL .......................................................27
9.1. Survival of Representations, Warranties; Claims........27
ARTICLE X MISCELLANEOUS......................................................27
10.1. Certain Definitions....................................27
10.2. Further Assurances.....................................32
10.3. Notices................................................32
10.4. Entire Agreement.......................................34
10.5. Waivers and Amendments.................................34
10.6. Default Interest.......................................34
10.7. Governing Law; Non-Exclusive Jurisdiction; Service
of Process...........................................34
10.8. Binding Effect; No Assignment..........................34
10.9. Contracts (Rights of Third Parties) Act 1999...........35
10.10. Variations in Pronouns.................................35
10.11. Counterparts; Facsimile Signatures.....................35
10.12. Exhibits and Schedules.................................35
10.13. Effect of Disclosure on Schedules......................35
10.14. Headings...............................................35
10.15. Severability of Provisions.............................35
10.16. Claims Made............................................35
Portions of this document have been redacted pursuant to a
Request for Confidential Treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. Redacted
portions are indicated with the notation "[***]"
EXHIBITS:
Exhibit A: Addleshaw Goddard Letter
Exhibit B: Form of Escrow Agreement
Exhibit C: Bill of Sale
Exhibit D: Assignment and Assumption Agreement
Exhibit E: Assignment of Intellectual Property
Exhibit F: AC/Purchaser IP License
Exhibit G: Assignment of Chinese License
Exhibit H: Limited and AC Release and Waiver
Exhibit I: Intercompany Release
Exhibit J: Acknowledgement Regarding Affiliate Contracts
Exhibit K: Limited IP License
SCHEDULES:
Schedule 1.1(a)(1): Outstanding Checks
Schedule 1.1(a)(2): Bank Accounts
Schedule 1.1(b): Limited Accounts Receivable
Schedule 1.1(c): Limited Tangible Personal Property
Schedule 1.1(d)(1): Personal Property Leases (Limited as Lessor)
Schedule 1.1(d)(2): Personal Property Leases (Limited as Lessee)
Schedule 1.1(e): International Client Contracts
Schedule 1.1(f): Assumed International Vendor Contracts
Schedule 1.1(h): Prepaid Expenses and Deposits
Schedule 1.1(i): Limited Intellectual Property
Schedule 1.1(j): International Business Licenses
Schedule 1.1(n): Limited Nonsolicitation Agreements
Schedule 1.2(b): AC Vendor and Supplier Contracts
Schedule 1.2(c): AC Tangible Personal Property
Schedule 1.2(d)(1): AC Intellectual Property
Schedule 1.2(d)(2): Intellectual Property Licensed to AC
Schedule 1.2(d)(3): Intellectual Property Retained by AC
Schedule 1.2(f): AC International Licenses
Schedule 1.2(g): AC Nonsolicitation Agreements
Schedule 2.2(a): Assumed Trade Payables
Schedule 2.2(c): Employee Liabilities
Schedule 2.6(b): Payments to [***]
Schedule 3.8: Permitted Encumbrances
Schedule 3.11: Limited Employees
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement"), dated April 2, 2006, is
made by and among Wilbass Limited (a wholly-owned subsidiary of TMNG Europe
Ltd.) (company number: 05747593) ("Purchaser"), Adventis Corporation, a Delaware
corporation ("AC"), and Adventis Limited (company number: 02966071), whose
registered office is at 33 Cavendish Square, London, W1G 0PW, UK, a wholly owned
subsidiary of AC ("Limited," and together with AC, the "Sellers").
WITNESSETH:
WHEREAS, AC is engaged in the business of rendering consulting services in
the telecommunications and technology sectors to customers and clients in the
United States, Canada and Mexico;
WHEREAS, AC and Limited are engaged in the business of rendering consulting
services in the same business sectors to Clients (as hereinafter defined)
throughout the world other than in the United States, Canada and Mexico (the
"International Business");
WHEREAS, Sellers wish to sell, and Purchaser wishes to purchase such right,
title, and interest as the Sellers have in the Assets (as hereinafter defined)
necessary in order to operate the International Business, subject to the
assumption by Purchaser of certain enumerated liabilities of Sellers upon the
terms and subject to the conditions hereinafter set forth;
WHEREAS, capitalized terms used herein which are otherwise not defined
shall have the meaning set forth in Section 10.1 hereof;
NOW, THEREFORE, in consideration of the mutual terms, conditions and other
agreements set forth herein, Purchaser and Sellers hereby agree as follows:
ARTICLE I
SALE AND PURCHASE OF ASSETS
1.1. Purchase of Assets of Limited. On the terms and subject to the
conditions set forth in this Agreement, on the Completion Date, Limited shall
sell, transfer, assign, convey and deliver to Purchaser, and Purchaser shall
purchase, acquire and accept from Limited, the assets, properties and rights of
Limited, in each case with full title guarantee and free and clear of any
Encumbrances (except that such assets may be subject to Permitted Encumbrances),
other than those assets, properties and rights which are specifically excluded
pursuant to Section 1.3 hereof (the foregoing are hereinafter referred to as the
"Limited Assets"). The Limited Assets include, without limitation, such right,
title, and interest Limited has in or to the following:
1
Portions of this document have been redacted pursuant to a
Request for Confidential Treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. Redacted
portions are indicated with the notation "[***]"
(a) Cash. All cash on hand or in banks, cash equivalents, marketable
and non-marketable securities and other investments (except as may be
specifically set aside for payment of the outstanding checks set forth on
Schedule 1.1(a)(1)), wherever maintained or held (including in the accounts
listed on Schedule 1.1(a)(2));
(b) Accounts Receivable. All accounts receivable (both billed and
unbilled) and all notes, bonds and other evidences of indebtedness to Limited,
and rights of Limited to receive payments, including all work in progress of
Limited and including any rights of Limited with respect to any third party
collection proceedings which have been commenced in connection therewith,
including, without limitation, the accounts receivable listed on Schedule 1.1(b)
(the "Limited Accounts Receivable");
(c) Tangible Personal Property. All furniture, fixtures, equipment,
computer hardware (including network and telecommunications equipment and
servers and any assignable preparatory materials or user manuals associated with
any computer software) (the "IT System"), tools, supplies, machinery, phone
systems and other tangible personal property owned, licensed or leased and used
by Limited in the conduct of its business (including those listed on Schedule
1.1(c)) and including any of the foregoing purchased subject to any conditional
sales or title retention agreement in favor of any other Person (the "Limited
Tangible Personal Property");
(d) Personal Property Leases. (i) All leases or subleases of tangible
personal property as to which Limited is the lessor or sublessor, including
those listed on Schedule 1.1(d)(1) hereto, and (ii) those certain leases of
tangible personal property as to which Limited is a lessee or sublessee,
together with any options to purchase or sell the underlying property, that are
set forth on Schedule 1.1(d)(2) (the leases and subleases described in
subclauses (i) and (ii), the "Limited Personal Property Leases");
(e) Client Contracts. All written or oral contracts and other
agreements, engagements, arrangements or working relationships with Clients or
under which Limited renders services to its Clients, including all work in
progress related thereto and including, without limitation, any contracts of
Limited with [***] (the "International Client Contracts"), including, without
limitation, those International Client Contracts set forth on Schedule 1.1(e);
(f) Vendor Contracts. Only those contracts and other agreements to
which Limited is a party and which are utilized in the conduct of the
International Business relating to vendors, suppliers, sales representatives and
consultants that are specifically set forth on Schedule 1.1(f) (the "Assumed
International Vendor Contracts");
(g) Other Assumed Contracts. All licenses, authorisations or
permissions (in whatsoever form and whether express or implied) under which
Limited uses any Limited Intellectual Property owned by any third party
("Limited IP Licences") and (ii) all arrangements and agreements under which any
third party (including AC or any source code deposit agents) provides any
element of, or services relating to, the IT System (the "IT Services
Contracts");
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(h) Prepaid Expenses and Deposits. All of Limited's prepaid expenses
and deposits (including those listed on Schedule 1.1(h));
(i) Intellectual Property. All intellectual property presently owned
or licensed by Limited, including but not limited to: (i) those set forth on
Schedule 1.1(i), (ii) all names and slogans embodying goodwill or indications of
origin, other rights in goodwill or to sue for passing off, unfair competition
rights, rights of design, all registered and unregistered trademarks, trade
names, service marks and applications; (iii) all patents and patent
applications, plant varieties rights, all copyrights in both published works and
unpublished works; (iv) all computer and electronic databases, data processing
programs and software programs and systems and related documentation, tools,
research projects, computer software under development, software concepts owned
and proprietary intellectual property, processes, formulae and algorithms,
including all intellectual property used in the ownership, marketing,
development, maintenance, support and delivery of the software; (v) moral
rights, rights in confidential information (including know how and trade
secrets); (vi) all inventions, trade secrets, methodologies, improvements,
developments, modifications and derivative works, whether or not reduced to
practice, which Limited, or any employee of Limited, together or individually,
alone or in combination with each other or any other person, have made which
relates to the International Business; (vii) any rights Limited may have in any
research, interviews, deliverables or work product developed or delivered in
connection with its business, whether developed or delivered to Clients or
otherwise, and (viii) any other intellectual property rights, in each case
whether registered or unregistered and including all applications for and
renewals or extensions of such rights, and all similar or equivalent rights of
forms of protection in any part of the world (collectively, the "Limited
Intellectual Property");
(j) Licenses. All licenses, permits, franchises, approvals,
registrations and authorizations (including applications therefor), including
without limitation such right, title and interest as Limited may have in the
license granted in favour of AC by the Director-General of State Administration
for Industry and Commerce of the People's Republic of China (the "Chinese
License") and those set forth in Schedule 1.1(j);
(k) Books and Records. All Books and Records of Limited, but excluding
those accounting records required by law or regulation to be retained by
Limited. Each of Purchaser and Limited agrees to provide access to such Books
and Records as are retained by it to the other party and its agents (at such
party's sole expense) on giving reasonable notice and at all reasonable times;
(l) Client Information. All of Limited's Client and supplier lists,
all Client files, all files related to employees, consultants or independent
contractors, all computer data
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Portions of this document have been redacted pursuant to a
Request for Confidential Treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. Redacted
portions are indicated with the notation "[***]"
bases and other business records in any way relating or pertaining to the
International Business;
(m) Tax Refund Receivables. All receivables of Limited in the form of
tax refunds, reimbursements or any other payments;
(n) Nonsolicitation Agreements. All of Limited's contractual rights
with any third parties relating to agreements of such third parties not to
solicit [***] or employees and/or Clients of Limited, all of which are described
on Schedule 1.1(n) hereto and have been previously delivered to Purchaser;
(o) Board of Advisors Rights. All of Limited's right to solicit
members of the current Board of Advisors of AC for a new board of advisors;
(p) Board of Advisors Meeting. Any and all property, rights, contracts
and deposits relating to the Board of Advisors meeting scheduled for May 10 and
11, 2006 titled `Industry Disruption: Managing the New S-Curve', including
without limitation all rights under any contracts with the venue, service
providers and speakers in connection with such event, as well as all rights in
any marketing materials, guest lists, or reservation lists relating thereto;
(q) International Website. All rights to any information relative to
the International Business and/or Limited on Sellers' current website in
electronic or other reasonable format requested by Purchaser; and
(r) Other. Any and all other property or assets, tangible or
intangible, owned, licensed or leased by Limited not included in the Excluded
Assets.
1.2. Purchase of Assets of AC. On the terms and subject to the conditions
set forth in this Agreement, on the Completion Date, AC shall sell, transfer,
assign, convey and deliver to Purchaser, and Purchaser shall purchase, acquire
and accept from AC, such right, title, and interest that AC has in the assets
enumerated below primarily used in support of the International Business, in
each case free and clear of any Encumbrances (except that such assets may be
subject to Permitted Encumbrances) (the foregoing are hereinafter referred to as
the "AC Assets" and together with the Limited Assets, the "Assets"). The AC
Assets include such right, title, and interest that AC has in or to the
following:
(a) [***] Contracts. All written or oral contracts and other
agreements, engagements, arrangements or working relationships between AC and
[***] pursuant to which AC renders services to [***], including all work in
progress related thereto and including any and all accounts receivable (billed
and unbilled) relating to [***], which at the time of Completion is
approximately $132,000 (the "[***] Contracts");
4
Portions of this document have been redacted pursuant to a
Request for Confidential Treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. Redacted
portions are indicated with the notation "[***]"
(b) Vendor and Supplier Contracts. All contracts and other agreements
set forth on Schedule 1.2(b) between AC and its vendors and suppliers pursuant
to which AC receives services in support of Limited's conduct of the
International Business (the "AC Vendor and Supplier Contracts");
(c) Tangible Personal Property. All furniture, fixtures, equipment,
computer hardware (including network and telecommunications equipment and
servers and any assignable preparatory materials or user manuals associated with
any computer software), tools, supplies, machinery, phone systems and other
tangible personal property owned by AC that are primarily used in the conduct of
the International Business (including those listed on Schedule 1.2(c)) or in
connection with the [***] Contracts and including any of the foregoing purchased
subject to any conditional sales or title retention agreement in favor of any
other Person (the "AC Tangible Personal Property" and together with the Limited
Tangible Personal Property, the "Tangible Personal Property");
(d) Intellectual Property. All intellectual property presently owned
or licensed by AC that is significantly used in connection with the
International Business set forth on Schedule 1.2(d)(1), including but not
limited to: (i) all patents and patent applications, plant varieties rights, all
copyrights in both published works and unpublished works; (ii) all computer and
electronic data processing programs and software programs and systems and
related documentation, research projects, computer software under development,
software concepts owned and proprietary intellectual property, processes,
formulae and algorithms, including all intellectual property used in the
ownership, marketing, development, maintenance, support and delivery of the
software; (iii) moral rights, rights in confidential information (including know
how and trade secrets); (iv) all inventions, improvements, developments,
modifications and derivative works, whether or not reduced to practice, which
AC, or any employee of AC, together or individually, alone or in combination
with each other or any other person, have made which relates to the
International Business; and (v) any other intellectual property rights, in each
case whether registered or unregistered and including all applications for and
renewals or extensions of such rights, and all similar or equivalent rights of
forms of protection in any territory in which the International Business is
conducted, except for all of AC's right, title and interest in the trademarks,
service marks and applications for the word "Adventis" (collectively, the "AC
Intellectual Property" and together with the Limited Intellectual Property, the
"Intellectual Property"); provided, however, that AC shall retain (I) a limited
license to use, in North America or in connection with AC's current contract
with [***], the AC Intellectual Property that are currently being used in North
America or in connection with such contract and that are set forth on Schedule
1.2(d)(2) and (II) ownership of the AC Intellectual Property that are currently
being used in North America or in connection with AC's current contract with
[***] and that are set forth on Schedule 1.2(d)(3);
(e) IP Licenses. To the extent used in connection with the
International Business or the [***] Contracts, all licenses, authorisations or
permissions (in whatsoever form and whether express or implied) under which AC
uses any AC Intellectual Property
5
Portions of this document have been redacted pursuant to a
Request for Confidential Treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. Redacted
portions are indicated with the notation "[***]"
owned by any third party ("AC IP Licences" and together with the Limited IP
Licenses, the "IP Licences");
(f) Licenses. All licenses, permits, franchises, approvals,
registrations and authorizations set forth on Schedule 1.2(f) (including
applications therefor) in any way relating or pertaining to the International
Business, including without limitation such right, title and interest of AC in
the Chinese License; and
(g) Nonsolicitation Agreements. AC's contractual rights set forth in
any agreements with any third parties to the extent that such rights consist of
the agreements of such third parties not to solicit [***] or employees and/or
Clients of Limited, all of which are described on Schedule 1.2(g) hereto and
have been previously delivered to Purchaser; and
(h) Website. So long as AC is in business in the United States and the
rights to the adventis.com domain name have not reverted to the applicable
domain name registry, Purchaser shall have the right to keep and maintain the
subdomain uk.adventis.com and any associated mail exchange record(s).
1.3. Excluded Assets. Any provision of this Agreement to the contrary
notwithstanding, Purchaser shall not acquire and there shall be excluded from
the Assets, the right, title and interest of AC and Limited in the following,
all of which shall be retained by Sellers (collectively, the "Excluded Assets"):
(a) Cash necessary to support those unfunded operating disbursements
as of the Completion Date set forth on Schedule 1.1(a)(1);
(b) All contracts and other agreements to which Limited is a party and
which are utilized in the conduct of the International Business relating to
vendors, suppliers, sales representatives and consultants that are not Assumed
International Vendor Contracts;
(c) The AC Intellectual Property solely set forth on Schedule
1.2(d)(3);
(d) Any claims or causes of action that Limited may have against AC or
Adventis Holdings, Inc. or any of their respective assets;
(e) All rights in and under the existing contract between AC and
[***]; and
(f) All other assets of AC other than those listed in Section 1.2
above.
6
Portions of this document have been redacted pursuant to a
Request for Confidential Treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. Redacted
portions are indicated with the notation "[***]"
ARTICLE II
PURCHASE PRICE AND COMPLETION
2.1. Purchase Price. In consideration of the aforesaid sale, conveyance,
assignment, transfer and delivery of the Assets and Sellers', Purchaser shall
(i) assume the Assumed Liabilities pursuant to Section 2.2 below and (ii)
subject to the provisions of Section 2.5 hereof, pay to Chase (as designated in
writing by Sellers to Purchaser) in immediately available funds an aggregate
amount in cash equal to ONE MILLION FOUR HUNDRED NINETY-FIVE THOUSAND NINE
HUNDRED THIRTY-THREE UNITED STATES DOLLARS AND FIVE CENTS (US$1,495,933.05) (the
"Purchase Price") on the Completion Date.
2.2. Assumption of Liabilities. At the Completion, Purchaser shall assume
and agree to pay and perform and discharge the following obligations and
liabilities of Limited as of the Completion Date, but only to the extent
specifically set forth below (collectively, the "Assumed Liabilities"):
(a) Those current trade payables of Limited set forth on Schedule
2.2(a) in an aggregate amount not to exceed US$529,066.95, which shall exclude,
for the avoidance of doubt, (i) any rent payable to Oxford and City Holdings
Limited (the "Landlord") pursuant to the real estate lease (the "London Lease")
between Limited and the Landlord for premises located at 33 Cavendish Square,
London (the "Premises"), and (ii) any trade payables of Limited owing to [***];
(b) Accrued liabilities with regard to rent due under the London Lease
for the month of March, 2006 in an amount not to exceed US$40,000;
(c) Those accrued liabilities of Limited set forth on Schedule 2.2(c)
with respect to current employees of Limited in the International Business for
(i) unpaid wages and employee benefits for the pay period after March 31, 2006,
(ii) payroll taxes relating to payroll for the months of February and March,
2006 (it being understood that such amounts for payroll taxes will be escrowed
at Completion and paid directly to the relevant taxing authorities upon receipt
by the Purchaser of the relevant completed tax return or other documentation or
substantiation of the amount due) and (iii) any accrued vacations, unpaid
guaranteed bonuses, submitted but unreimbursed travel and entertainment expenses
for the month of February, 2006 and commissions earned prior to March 17, 2006,
in an aggregate amount not to exceed US$530,000, not including an unliquidated
amount for (x) employee travel and entertainment expenses for the month of
March, 2006, (y) commissions earned on or after March 17, 2006 or (z) any
post-Completion employee-related costs;
7
(d) Liabilities to make monthly cash contributions to each Employee's
Pension Plan in accordance with the terms of the contracts of employment of the
Employees up to an aggregate amount of US$25,000 but, for the avoidance of
doubt, the Purchaser shall not assume any obligation to make payments or
contribute to any individual employee contribution plan or other plan (other
than the Pension Plan) currently providing for or which has previously provided
benefits to Employees of which any Employee or former employee of Limited is a
member (including any amount accrued but unpaid by Limited as at the Completion
Date);
(e) Current liabilities of Limited for VAT and corporation tax in an
aggregate amount not in excess of US$300,000, it being understood that such
amounts will be escrowed at Completion and paid directly to the relevant taxing
authorities upon receipt by the Purchaser of the relevant completed VAT return
of Limited and a remittance statement from the Inland Revenue in respect of the
corporation tax due in accordance with Section 5.3(a) hereof; and
(f) All liabilities under the London Lease that solely relate to
periods following the Completion Date, provided, however, that Purchaser shall
not be required to pay and discharge any liability for rent payable under the
London Lease relating to any period from or after the Completion Date until
Purchaser has received the duly executed Landlord's Consent in accordance with
Section 2.5(a).
Notwithstanding anything else set forth herein, nothing in this Agreement shall
pass to the Purchaser, or shall be construed as acceptance by the Purchaser of,
any Liability (including, without limitation the Excluded Liabilities) which
otherwise is not specifically assumed by the Purchaser under this Agreement
(including Assumed Liabilities) or required to be assumed by the Purchaser by
law.
2.3. Time and Place of Completion. Subject to the terms of and the
satisfaction or waiver of the conditions to Completion contained in this
Agreement, the sale and purchase of the Assets shall be deemed to take place at
a Completion (the "Completion") effective as of 12:01a.m., local time, on April
2, 2006 (the "Completion Date") unless otherwise agreed in a writing by Sellers
and Purchaser. The Completion shall take place at the offices of Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C., One Financial Center, Boston,
Massachusetts, or at such other time, date and place as may be mutually agreed
to in writing by the parties hereto.
2.4. Calculation of Purchase Price.
(a) Purchaser agrees that the terms and conditions of this Agreement
and the exclusions and limitations contained in this Agreement are fair and
reasonable in the context of a sale by companies in financial distress having
regard to the fact that in settling the consideration payable under this
Agreement one of the factors taken into account was the commercial risk to
8
the Purchaser represented by the fact that all the parties believe that the
terms and conditions, exclusions and limitations would be recognized as fully
effective by the Courts, the Sellers making it clear that on any other basis
they would not have agreed to enter into this Agreement except for a higher
consideration.
(b) Sellers make no representations, warranties or conditions, express
or implied, statutory or otherwise, in respect of the International Business or
any of the Assets sold or agreed to be sold under this Agreement or of which
possession is agreed to be passed under this Agreement other than those
specifically set forth herein. Other than the representations specifically set
forth herein, the Assets are being sold on an "as is, where is" basis.
2.5. Lease Holdback; Bare License to Occupy Premises.
(a) From and after the date hereof, Sellers shall use their reasonable
endeavours to obtain:
(i) a signed copy of Addleshaw Goddard's draft letter of 31
March 2006 attached to this Agreement as Exhibit A;
(ii) the Landlord providing written consent in accordance with
the terms of, and for the purposes of, licensing the
Purchaser to occupy the Premises (the "Limited Occupancy
Licence") without interruption, restriction or disturbance
for a period from the Completion Date up to and including 23
June 2006 (the "Occupancy Period");
(iii) a written undertaking by the Landlord to grant a licence to
Purchaser on the same terms as the Limited Occupancy Licence
and for the unexpired term of the Limited Occupancy Licence
in the event that the London Lease terminates for any reason
or Limited becomes insolvent;
(iv) an agreement in writing by the Landlord confirming that all
amounts due under the London Lease to date have been paid
and waiving any claim for payment in respect of prior
breaches of the London Lease by Limited; and
(v) the Landlord's formal written consent (in accordance with
clause 3.26 of the London Lease) to the assignment of the
London Lease by Limited to the Purchaser prior to the
expiration of the Occupancy Period (the "Landlord's
Consent").
9
(b) Upon receipt of the Landlord's Consent during the Occupancy
Period, Limited shall, as soon as practicable, assign the London Lease to
Purchaser for a consideration of US$1, receipt of which is hereby acknowledged.
(c) Upon completion of an assignment of the London Lease to Purchaser,
Limited shall deliver a valid VAT invoice for the provision of services, being
the supply of facilities, the consideration for which shall be an amount equal
to the rent calculated on a daily rate for the number of days the Purchaser
occupied the Premises during the Occupancy Period without having completed such
assignment.
(d) Notwithstanding the transfer to Purchaser of Limited's rights to
the deposit monies retained by the Landlord pursuant to the Rent Deposit Deed
dated April 25, 2002, in the event that monies due under the rent deposit deed
dated April 25, 2002 are released to Limited, such monies shall be held on trust
for Purchaser and Limited shall promptly transfer these monies to Purchaser or
to the Landlord at the request of Purchaser.
(e) In the event that Sellers have not delivered the Landlord's
Consent on or prior to the Completion Date, then, notwithstanding anything else
set forth herein to the contrary, at the Completion, Purchaser shall deduct from
the Purchase Price delivered at the Completion the amount of One Hundred and
Fifty Thousand Dollars (US$150,000) (the "Lease Holdback Amount") in order to
secure Sellers' obligation to obtain the Landlord's Consent and shall deliver
the Lease Holdback Amount to Bingham McCutchen LLP ("Escrow Agent") to be held
in escrow pursuant to the terms of an Escrow Agreement in the form attached
hereto as Exhibit B to be entered into by and among Purchaser, Sellers and
Escrow Agent on the Completion Date (the "Escrow Agreement").
(f) In the event that Purchaser incurs any Demand by the Landlord in
connection with the London Lease or any effort to remove Purchaser from the
Premises during the Occupancy Period (including, without limitation, any
attorneys' fees and amounts paid to the Landlord voluntarily or involuntarily in
order to occupy the Premises for the entire Occupancy Period), then Purchaser
shall be entitled to deduct all such Demands from the Lease Holdback Amount and
such amounts shall be released from escrow to the Purchaser in accordance with
the terms of the Escrow Agreement.
(g) Purchaser and Sellers shall jointly instruct Escrow Agent (in
accordance with the terms of the Escrow Agreement) to deliver to Chase as soon
as commercially practicable any remaining portion of the Lease Holdback Amount
upon the earliest of the following to occur: (i) Sellers' delivery of the
Landlord's Consent to Purchaser prior to the expiration of the Occupancy Period;
(ii) Sellers' delivery of the consent and undertaking of Landlord described in
Section 2.5(a)(ii) and 2.5(a)(iii) hereof; (iii) the expiration of the Occupancy
Period if Purchaser shall have occupied the Premises pursuant to the London
Lease without interruption, restriction or disturbance during the entire
Occupancy Period; (iv) Purchaser voluntarily exits the Premises during the
Occupancy Period (but, for the avoidance of
10
doubt, if Purchaser vacates the Premises because the Landlord threatens eviction
or requires an unreasonable sum of money in order to remain in possession of the
Premises during the Occupancy Period, such vacation of the Premises shall not be
deemed to have been voluntary); or (v) Purchaser ceases to occupy the Premises
as a result of Purchaser's failure to comply at all times with the provisions of
Sections 2.5(k) and 2.5(l). At such time as the foregoing events are no longer
capable of fulfillment, Purchaser shall be entitled to instruct the Escrow Agent
to return any remaining portion of the Lease Holdback Amount to it and Purchaser
shall have no liability to Sellers therefor.
(h) In the event that Limited has not procured the Landlord's Consent
on or prior to the Completion Date, from the Completion Date, Limited hereby
grants Purchaser the exclusive right to occupy the Premises without
interruption, restriction or disturbance for a period up to and including 23
June 2006 or until a date when it shall have made arrangements with the Landlord
for its lawful occupation of the Premises (whichever is sooner) (the "Occupancy
Licence Period") and to carry on the International Business in the Premises as
licensee subject to the rights of the Landlord. For the avoidance of doubt,
Purchaser shall vacate the Premises immediately on the expiry of the Occupancy
Licence Period, unless it shall have made arrangements with the Landlord for its
continued occupation.
(i) Subject to Section 2.2(f), Purchaser shall pay all rates and all
heating, gas, electricity and telephone charges and such other like expenses in
respect of the Premises relating to the period of its occupation forthwith on
demand by Limited.
(j) Limited shall not interfere with the conduct of Purchaser's
business at the Premises during the period which the Purchaser is in occupation
of the Premises as Licensee.
(k) During the period of its occupation of the Premises, Purchaser
shall not and shall procure that its servants, agents or licensees shall not
cause any nuisance or annoyance to third parties or their property or any
damage, loss or destruction (except any accidental damage, loss or destruction)
to the Premises and shall, where any such nuisance or annoyance is complained
of, forthwith abate the same and where any such damage or loss or destruction is
caused, forthwith repair or replace the same.
(l) During the period of Purchaser's occupation of the Premises,
Purchaser shall not knowingly do or bring or cause or permit to be done or
brought any act, matter or thing upon the Premises or any part of them in reason
or in consequence of which the rights of Limited under any policy of insurance
in respect of the Premises might be prejudicially affected (save for the fact of
its occupation of the Premises under licence without the Landlord's formal
consent).
11
2.6. Completion Deliveries.
(a) At Completion, Limited and AC shall deliver to Purchaser:
(i) physical possession of all the Assets capable of passing by
delivery, with the intent that title in such Assets shall
pass to the Purchaser by and on such delivery;
(ii) a duly executed Bill of Sale in the form attached hereto as
Exhibit C (the "Bill of Sale");
(iii) a duly executed Assignment and Assumption Agreement (the
"Assignment Agreement") in the form attached hereto as
Exhibit D, pursuant to which Limited and AC shall assign all
rights in the contracts or agreements included in the Assets
and Purchaser shall assume all Liabilities related thereto
arising after the Completion Date;
(iv) a duly executed Assignment of Intellectual Property in the
form attached hereto as Exhibit E, pursuant to which Limited
and AC will assign all intellectual property and associated
goodwill included in the Assets;
(v) a duly executed irrevocable license in the form attached
hereto as Exhibit F, pursuant to which AC will grant
Purchaser the exclusive right to use the AC Intellectual
Property set forth on Schedule 1.2(d)(3) in connection with
the International Business in accordance with the terms of
such license (the "AC/Purchaser IP License");
(vi) a duly executed Assignment of License in the form attached
hereto as Exhibit G, pursuant to which Sellers shall assign
to Purchaser all interest in the Chinese License;
(vii) a duly executed Release and Waiver in the form attached
hereto as Exhibit H, pursuant to which Limited and AC shall
release Purchaser and all of its Affiliates from the claims
specified therein;
(viii) a copy of a duly executed Release in the form attached
hereto as Exhibit I, pursuant to which AC shall release
Limited from any claims or causes of action that AC or
Adventis Holdings, Inc. may have against Limited;
12
Portions of this document have been redacted pursuant to a
Request for Confidential Treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. Redacted
portions are indicated with the notation "[***]"
(ix) all documents of title and certificates in either Seller's
possession for the lawful operation and use of, and all
service documents pertaining to, the Tangible Personal
Property;
(x) all documents of title, certificates, deeds, licences,
agreements and other documents in either Seller's possession
relating to the Intellectual Property and all manuals,
drawings, plans, documents and other materials and media on
which Client or [***] information is recorded;
(xi) the Assumed Contracts and the books, accounts, reference
lists of customers, credit reports, price lists, cost
records, work tickets, catalogues, advertising and all other
documents, papers and records in the possession or under the
control of either Seller relating to the International
Business or any of the Assets duly written up to the
Completion Date;
(xii) all records referred to in section 49 of VATA 1994;
(xiii) a copy of an original special resolution of the members of
Limited resolving to change its name to remove any reference
to "Adventis", and a cheque payable to the Registrar of
Companies (provided that such cheque may be delivered one
(1) Business Day following the Completion Date) for the sum
of the Registrars' change of name fee, which the Purchaser
shall file with the Registrar of Companies;
(xiv) the Book and Records;
(xv) a written acknowledgement in the form attached hereto as
Exhibit J from Limited certifying that all arrangements to
which Limited and either AC or Adventis Holdings, Inc. is a
party and which affect the Business or Assets have been
cancelled by mutual agreement and without any compensation
or damages being payable by either party to the other;
(xvi) all National Insurance and PAYE records, fully completed in
respect of the Employees and showing that payments are up to
date except as set forth on Schedule 2.2(c), and all records
required to be kept under the Working Time Regulations 1998;
(xvii) a copy of the resolutions of a meeting of the directors of
Limited authorizing the execution by Limited of this
Agreement; and
13
Portions of this document have been redacted pursuant to a
Request for Confidential Treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. Redacted
portions are indicated with the notation "[***]"
(xviii) possession of the Premises.
(b) On the Completion Date, Limited, AC or its agent shall deliver
payments to [***] in the amounts set forth on Schedule 2.6(b) hereto for
repayment of the outstanding trade payables of Limited to such third parties.
(c) At Completion, Purchaser shall deliver:
(i) to Chase, the Purchase Price less the Lease Holdback Amount;
(ii) to Escrow Agent, the Lease Holdback Amount;
(iii) to Osborne Clark, an amount necessary to satisfy the VAT
and payroll tax liabilities referenced in Sections 2.2(c)
and 2.2(e);
(iv) to Limited, the Assignment Agreement, duly executed by
Purchaser;
(v) a license in the form attached hereto as Exhibit K, pursuant
to which Purchaser will grant AC the right to use the
Limited Intellectual Property after the Completion Date in
accordance with the terms of such license; and
(vi) to Sellers, a copy of the resolutions of a meeting of the
directors of Purchaser authorizing the execution by
Purchaser of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers hereby jointly and severally represent and warrant to Purchaser as
follows:
3.1. Organization and Good Standing. Each of the Sellers is a corporation,
duly organized, validly existing and in good standing under the Laws of its
respective state or country of organization and has full corporate power to
carry on its business and to own, lease and operate its properties and assets,
including the Assets, and to carry on the International Business as now being
conducted, and to sell, assign, transfer and convey to Purchaser the Assets as
provided in this Agreement. Each of the Sellers is duly qualified to do business
as a foreign corporation in each jurisdiction where the character of the
property owned or leased by it or the nature of its activities makes such
qualification necessary to carry on the International Business and the operation
of the Assets as now conducted.
14
3.2. Due Authorization. Each of the Sellers has full corporate power to
execute, deliver and perform this Agreement, and, on or before the Completion
Date, shall have taken, or caused to have been taken, all necessary action,
corporate or otherwise, to authorize the execution, delivery and performance by
each of the Sellers of this Agreement. This Agreement has been duly executed and
delivered by each of the Sellers and, assuming due authorization, execution and
delivery by Purchaser, constitutes a valid and legally binding agreement of
Sellers, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other similar Laws of general
applicability relating to or affecting creditors' rights and to the limitations
imposed by general equitable principles or the exercise of judicial discretion
in accordance with such principles.
3.3. No Violation or Conflict. Except as otherwise expressly stated herein,
neither the execution and delivery of this Agreement by Sellers nor the
consummation by Sellers of the transactions contemplated hereby will (i)
conflict with or result in a breach of any provision of the charter documents of
Sellers, (ii) result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration or otherwise change the existing
rights or obligations of any party thereto) under, any term, condition or
provision of any note, bond, mortgage, indenture, lease, agreement or other
instrument or obligation to which either of the Sellers are a party or by which
either Seller or any of their respective properties is bound, or (iii) violate
or conflict with any permit, concession, grant, franchise, license, judgment,
order, decree, statute, Law, ordinance, rule or regulation applicable to any
Seller or to the Assets or the International Business.
3.4. Litigation. There are no judicial or administrative actions, suits,
proceedings or investigations pending or, to the Knowledge of the Sellers,
threatened, which (i) might prevent or hinder the consummation of this Agreement
and the transactions contemplated hereby or (ii) have been commenced against
Limited or that otherwise relate to or may affect the International Business or
the Assets.
3.5. No Approvals. Except for any approval required under Chinese Law to
transfer the Chinese License, there are no governmental, regulatory, or any
other type of approvals, permits, licenses or consents which Sellers must
obtain, other than those to be obtained prior to Completion, in order for
Sellers to sell, assign and transfer the Assets to Purchaser.
3.6. Accuracy of Disclosure. To the Sellers' Knowledge, none of the
information delivered by or on behalf of Sellers to Purchaser or any of its
lawyers, advisors or representatives contains any untrue statement of material
fact or omits to state a material fact necessary to make the information
contained therein not misleading. To the Sellers' Knowledge, no statement made
by or on behalf of Sellers in this Agreement, the Schedules attached hereto or
the certificate to be delivered pursuant to Section 6.1 hereof, contains any
15
untrue statement of material fact or omits to state a material fact necessary to
make the statements contained herein or therein not misleading. To the Sellers'
Knowledge, except as disclosed in this Agreement, no fact or condition exists in
any way relating or pertaining to the International Business which, individually
or in the aggregate, has or constitutes, or could reasonably be expected to have
or constitute, a Material Adverse Effect on the International Business.
3.7. Brokers. Except for America's Growth Capital, LLC, all negotiations
relative to this Agreement and the transactions contemplated hereby have been
carried out by Sellers directly with Purchaser without the intervention of any
Person on behalf of Sellers in such manner as to give rise to any valid claim by
any Person against Purchaser for a finder's fee, brokerage commission or similar
payment. Sellers agree that they are liable for the payment of any fee owing to
America's Growth Capital, LLC in connection with the transactions contemplated
hereby and that Purchaser shall have no liability therefor.
3.8. Title to Assets; Encumbrances. Sellers are in possession of and are
the lawful owners of and have good and marketable title to all of the
properties, documents and Assets used in the conduct of the International
Business as presently conducted and all properties and assets acquired by
Sellers after the date thereof, free and clear of all liens, pledges,
hypothecations, mortgages, security interests, claims, leases, charges, options,
rights of first refusal, easements, servitudes, transfer restrictions under any
stockholder or similar agreement, encumbrances, restrictions, limitations or
third party interests of any nature whatsoever ("Encumbrances"), except (i)
those disclosed on Schedule 3.8, (ii) liens for current property taxes not yet
due and payable, (iii) liens imposed by Law and incurred in the ordinary course
of business for obligations not yet due to carriers, warehousemen, laborers,
materialmen and the like and (iv) any other restrictions set forth in the
AC/Purchaser IP License ("Permitted Encumbrances"). The Tangible Personal
Property and the improvements to leased real properties of Sellers are in good
operating condition and repair, ordinary wear and tear excepted, are useable in
the ordinary course of business and conform to all applicable statutes,
ordinances and regulations relating to their construction, use and operation.
Pursuant to the London Lease, Limited is in possession and has actual occupation
of the entire Premises on an exclusive basis.
3.9. Germany Operations. Except as set forth on Schedule 2.2(a) or Schedule
2.2(c), Limited represents and warrants that there are no outstanding
Liabilities in connection with any International Business conducted in Germany,
including with respect to any Taxes payable in Germany.
3.10. Intellectual Property. To the respective Knowledge of each Seller,
there has been no infringement by any third party of any Intellectual Property,
nor any third party breach of confidence, passing off or actionable act of
unfair competition in relation to the International Business and no such
infringement, breach of confidence and passing off or
16
actionable act of unfair competition is current or anticipated. To the
respective Knowledge of each Seller, the activities involved in the conduct of
the International Business: (i) have not infringed, do not infringe and are not
likely to infringe the intellectual property rights of any third party; and (ii)
have not constituted, do not constitute and are not likely to constitute any
breach of confidence, passing off or actionable act of unfair competition.
3.11. Employees and Related Liabilities. Limited represents and warrants to
the Purchaser (for itself and as trustee for all other owners for the time being
of the whole or any part of the International Business and the Assets) that, as
of the Completion Date: (i) the persons set forth on Schedule 3.11 hereto
constitute all of the Employees; (ii) Limited has provided to Purchaser copies
of all written agreements with Employees as set forth on Schedule 3.11 and has
disclosed to Purchaser the terms of any oral agreement with Employees or any
other agreements with Employees that have not yet been provided; and (iii) the
Liabilities set forth on Schedule 2.2(c) represent the only outstanding
liabilities of the Sellers to the Employees.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Sellers as follows:
4.1. Organization and Good Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the Laws of the country
of its organization, and has full corporate power to carry on its business and
to own, lease and operate its properties. Purchaser is duly qualified to do
business as a foreign corporation in each jurisdiction where the character of
the property owned or leased by it or the nature of its activities make such
qualification necessary to carry on its business as now conducted.
4.2. Due Authorization. Purchaser has full corporate power to execute,
deliver and perform this Agreement, and, on or before the Completion Date, shall
have taken, or caused to have been taken, all necessary action, corporate or
otherwise, to authorize the execution, delivery and performance of this
Agreement by Purchaser. This Agreement has been duly executed and delivered by
Purchaser and, assuming due authorization, execution and delivery by Sellers,
constitutes a valid and legally binding agreement of Purchaser, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, reorganization and
other similar Laws of general applicability relating to or affecting creditors
rights, to the limitations imposed by general equitable principles.
4.3. No Violation or Conflict. Neither the execution and delivery of this
Agreement by Purchaser nor the consummation by Purchaser of the transactions
contemplated hereby will (i) conflict with or result in a breach of any
provision of the
17
Memorandum of Association or Articles of Association of Purchaser, (ii) result
in a violation or breach of, or constitute (with or without due notice or lapse
of time or both) a default (or give rise to any right of termination,
cancellation or acceleration or otherwise change the existing rights or
obligations of any party thereto) under, any term, condition or provision of any
note, bond, mortgage, indenture, lease, agreement or other instrument or
obligation to which Purchaser is a party or by which Purchaser or any of its
properties is bound, or (iii) violate or conflict with any permit, concession,
grant, franchise, license, judgment, order, decree, statute, Law, ordinance,
rule or regulation applicable to Purchaser.
4.4. Litigation. There are no judicial or administrative actions, suits,
proceedings or investigations pending or threatened, which might prevent or
hinder the consummation of the Agreement and the transactions contemplated
hereby.
4.5. Brokers. Neither Purchaser nor any affiliate thereof has retained or
employed any broker, finder or investment banker in connection with this
agreement or the transactions contemplated hereby and no broker or other person
is entitled to any commission or finder's fee from Purchaser or any of its
respective affiliates in connection with such transactions based on any actions
taken by Purchaser or any of its affiliates.
4.6. Financial Condition of Purchaser. Purchaser has been, is and shall be
solvent prior to and after giving effect to the transactions contemplated by
this Agreement. The Purchaser has the cash available or has existing borrowing
facilities in effect which together are sufficient to enable it to pay the
Purchase Price at the Completion and to consummate the transactions contemplated
by this Agreement and the other Transaction Documents.
ARTICLE V
COVENANTS
5.1. Conduct of Business. Until the Completion Date, Limited shall conduct
the International Business consistent with prior practices and shall not:
(a) make any payments to third parties and/or distributions without
the prior consent of Purchaser, which consent shall not be unreasonably
withheld;
(b) take any action that would constitute a default under any of the
Assumed Contracts or the London Lease; and
(c) transfer any funds to any account owned by either Seller or their
Affiliates that is not included in the Assets without the prior written consent
of the Purchaser, which consent shall not be unreasonably withheld provided that
such transfers are consistent with past practices.
18
5.2. Confidentiality.
(a) Sellers and Purchaser agree, for themselves and their Affiliates,
that (i) each Seller and the Purchaser and their respective Affiliates shall not
disclose the contents or existence of the Transaction Documents, or any prior or
contemporaneous discussions between the parties regarding the transactions
contemplated thereby, except to those directors, officers, employees, agents and
representatives or advisors, including counsel and financial advisors who need
to know such information for the purpose of assisting such party in connection
with the consummation of the transactions contemplated hereby, except as may be
required (upon advice of counsel) to be in compliance with applicable Law,
regulation or judicial process, provided that each party shall consult with the
other party before making any disclosure which may be so required.
(b) Each party will use its commercially reasonable efforts to cause
all persons (including any Affiliates) to whom any such information is disclosed
not to disclose any of such information to others in violation of the foregoing
restrictions; provided, however, that this Section 5.2 shall not apply to
communications necessary, but only in so far as necessary, by Sellers and the
Purchaser in order to satisfy the conditions precedent contained in Articles VI
and VII. The provisions of this Section 5.2 shall not apply and be of no force
or effect if a (i) bankruptcy case is filed by or against either Seller or (ii)
to the extent otherwise provided by applicable Law or court order.
5.3. Value Added Tax.
(a) All amounts paid or payable or consideration provided or to be
provided under or in pursuance to this Agreement shall be exclusive of VAT (if
any). Where one party (in this Section 5.3 (the "Supplier") makes or is deemed
to make a supply to another party (in this Section 5.3 the "Recipient") for the
purposes of VAT, whether the supply is for a monetary consideration or
otherwise, the Recipient shall pay to the Supplier in accordance with the terms
of this Section 5.3(a) an amount equal to the VAT (and any penalty or interest
chargeable to the extent that it is attributable to any act or omission by the
Recipient) in addition to the consideration provided in this Agreement. The
Recipient shall account to the Supplier for any amount so payable upon
presentation of a valid VAT invoice from the Supplier in accordance with Section
5.3(c).
(b) Limited and the Purchaser agree that the sale of the Assets is the
transfer of the business of Limited as a going concern for the purposes of both
section 49, VATA and Article 5, Value Added Tax (Special Provisions) Order 1995
("Article 5"). Sellers and the Purchaser shall use their reasonable endeavours
to secure that pursuant to such provisions the sale of the Assets is treated as
neither a supply of goods nor a supply of services for the purposes of VAT.
19
(c) If, nevertheless, any VAT is payable on the sale of the Assets
under this Agreement and HM Revenue & Customs have so confirmed in writing after
full disclosure of all material facts, the Purchaser shall pay to Limited the
amount of that VAT immediately on payment of the VAT by Limited or, if later,
promptly after delivery by Limited to the Purchaser of a paper VAT invoice in
respect of it, together with a copy of confirmation from HM Revenue & Customs
that VAT is payable and of the document disclosing all material facts as
described in this Section 5.3(c).
(d) Before sending any relevant letter to HM Revenue & Customs,
Limited shall give the Purchaser a reasonable opportunity to comment on it, and
shall make such amendments as the Purchaser reasonably requires.
(e) Limited shall, on request, make available any information and
documents in its control required to establish to HM Revenue & Customs and any
tribunal or court that no liability, or a reduced liability, arises on the
Purchaser or any other company under section 44 of VATA 1994 as a result of the
sale of the Assets.
(f) Limited and Purchaser intend that section 49 of VATA 1994 shall
apply to the sale of the Assets under this Agreement and accordingly:
(i) Limited shall, on Completion, deliver to the Purchaser all
records referred to in section 49 of VATA 1994 ("VAT
Records");
(ii) Limited shall not make any request to HM Revenue & Customs
for the VAT Records to be preserved by Limited rather than
the Purchaser;
(iii) The Purchaser shall preserve the VAT Records for such
period as may be required by law and, during that period,
permit Limited reasonable access to them to inspect or make
copies of them; and
(iv) The Purchaser may fulfill its obligations under clause
5.3(f)(iii) by procuring that any future transferee of the
International Business or any other person preserves the VAT
Records and permits reasonable access as mentioned in that
clause, in which case the Purchaser shall notify Limited of
the name of that person.
(g) If the Purchaser pays Limited an amount in respect of VAT under
Section 5.3(a) and HM Revenue & Customs note that all or part of it was not
properly chargeable, Limited shall repay the amount or relevant part of it to
the Purchaser. Limited shall make the repayment as soon as reasonably
practicable after the ruling, unless it has already accounted to HM Revenue &
Customs for the VAT. In that case, Limited shall apply for a refund of the VAT
(plus any interest payable by HM Revenue & Customs), use reasonable endeavours
to
20
obtain it as soon as practicable, and pay to the Purchaser the amount of the
refund and any interest when and to the extent received from HM Revenue &
Customs.
(h) The Purchaser warrants that:
(i) it is or shall be a taxable person with effect from
Completion;
(ii) with effect from Completion it intends to use the Assets in
carrying on the same kind of business as previously carried
on by Limited; and
(iii) it is not a party to this Agreement as a trustee, nominee
or agent for any other person.
(i) Limited warrants that it is a taxable person as at the Completion
Date.
(j) Limited confirms that it has been paying VAT on all amounts
payable by it under the London Lease.
5.4. Employees.
(a) The parties acknowledge and agree that, pursuant to the TUPE
Regulations, the contracts of employment between Limited and each of the
Employees will have effect from the Completion Date as if originally made
between the Purchaser and each Employee (except to the extent that such
contracts relate to old age, invalidity and survivors' benefits under any
occupational pension scheme).
(b) Limited agrees (for itself and as trustee for all other owners for
the time being of the whole or any part of the International Business and the
Assets) that it shall not employ, engage or transfer, or solicit or attempt to
employ, engage or transfer, any Employee to work outside the International
Business or take any action to prevent or otherwise prohibit Purchaser from
employing the Employees in the International Business.
(c) Without undue delay after the Completion Date, Limited shall
deliver to the Employees located in Germany (the "German Employees"), a joint
written communication from Limited and Purchaser, which communication will
inform the German Employees in accordance with Sec. 613a para. 5 German Civil
Code (BGB) about the transfer of the International Business and Assets and of
the employment relationships of the German Employees to the Purchaser. The
communication to the German Employees shall be prepared by Limited in
cooperation with the Purchaser. Limited shall be responsible and liable that the
information provided for, and contained in, the communication to the German
Employees is correct, comprehensive and not misleading, as far as the facts or
documents, on which such information is based, were known or should have been
known to Limited.
21
5.5. Assumed Contracts.
(a) Limited shall, with effect from the Completion Date, assign to the
order of the Purchaser, or procure the assignment to the order of the Purchaser
of, all the Assumed Contracts which are capable of assignment without a Third
Party Consent.
(b) As soon as reasonably practicable following the Completion,
Purchaser and Sellers shall jointly execute an announcement notifying all
parties to the Assumed Contracts of the assignment set forth herein and under
the other Transaction Documents.
(c) If any of the Assumed Contracts cannot be assigned or novated
without obtaining a Third Party Consent, then Limited and AC shall use their
reasonable best efforts to obtain such consents following the Completion.
(d) Insofar as any of the Assumed Contracts cannot be assigned or
novated to the Purchaser without Third Party Consent, and such consent is
refused or otherwise not obtained, or where any of the Assumed Contracts are
incapable of transfer to the Purchaser by assignment, novation or other means,
all economic benefits of such Assumed Contracts shall nevertheless be deemed to
be assigned to Purchaser and to the extent that either Seller receives any
payment in respect thereof, such Seller shall immediately remit such payment
directly to Purchaser. Sellers agree that Purchaser shall have all right to take
actions on such Assumed Contracts on behalf of or in the name of the relevant
Seller in order to gain the full benefits of such Assumed Contracts. After the
Completion Date, Sellers agree not to take any actions under the Assumed
Contracts without the advance written consent of Purchaser.
5.6. Receivables.
(a) As and when required by the Purchaser after Completion, Limited
shall deliver to the Purchaser assignments of such of the Limited Accounts
Receivables as the Purchaser may specify and Limited irrevocably appoints any
director of the Purchaser after Completion to act as its attorney in the
execution of any such assignment.
(b) Notwithstanding Section 5.6(a), Limited undertakes to hold on
trust for the benefit of the Purchaser any payments in respect of any Limited
Accounts Receivables received by it and to remit the same to the Purchaser
forthwith on receipt.
(c) As soon as practicable following the Completion Date, Purchaser
shall prepare, and upon receipt from Purchaser, Limited agrees to use its best
efforts to sign and deliver to the Purchaser, a letter from Limited to each of
the persons from whom the Limited Accounts Receivables are owed requiring them
to pay their respective part of the Limited Accounts Receivables to the
Purchaser.
22
(d) On notice in writing from the Purchaser, Limited undertakes to
hold in trust for the Purchaser any amounts recovered by Limited under the VAT
Bad Debt Relief Provisions or otherwise in respect of the Receivables and to pay
the same to the Purchaser forthwith.
5.7. Expenses. Whether or not the transactions contemplated by this
Agreement are consummated, Sellers and Purchaser will each bear their own costs
and expenses incurred in connection with this Agreement, including, without
limitation, all fees and expenses of agents, representatives, counsel and
accountants, and no such expenses of the Sellers shall be satisfied from any of
the Assets.
5.8. Other Agreements; Further Assurances.
(a) Sellers and Purchaser agree to take, or cause to be taken, all
actions and to do, or cause to be done, all things deemed reasonably necessary
by Purchaser, proper or advisable to consummate and make effective as promptly
as practicable the transactions contemplated by this Agreement, including,
without limitation, the obtaining of all necessary waivers, consents and
approvals and the effecting of all necessary registrations and filings,
including, but not limited to, submissions of information requested by
governmental or regulatory bodies and any other Persons required to be obtained
by them for the consummation of the Completion and the continuance in full force
and effect of the permits, contracts and other agreements set forth on the
Schedules to this Agreement.
(b) Sellers shall cooperate in good faith with Purchaser to transfer
any and all information or Intellectual Property transferred hereunder relative
to the International Business and/or Limited from the Sellers' current website
to Purchaser in a format reasonably requested by Purchaser.
(c) To the extent that Purchaser waives delivery at the Completion
Date of any of the items set forth in Section 2.6(a) hereof, Sellers shall
nonetheless deliver such items as soon as practicable following the Completion
Date.
(d) As soon as practicable following the Completion, Limited shall
execute and deliver one or more irrevocable instructions to the bank(s) of
Limited as may be necessary or required by such bank(s) to procure the automatic
transfer to the Purchaser of any payment that any Client may make to such
bank(s) after the Completion Date.
5.9. No Voluntary Insolvency. For so long as Purchaser is occupying the
Premises pursuant to the London Lease and none of the events described in
Section 2.5(g) hereof have occurred, AC undertakes not to pass any resolution or
take any other action (unless required by applicable Law) for the voluntary
placement of Limited into any insolvency proceeding.
23
Portions of this document have been redacted pursuant to a
Request for Confidential Treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. Redacted
portions are indicated with the notation "[***]"
5.10. Exclusivity. Commencing as of the execution of this Agreement and
until Termination or the Completion, neither Limited nor any agents working on
its behalf shall directly or indirectly enter into any agreement with respect to
or engage in any discussions or negotiations regarding any transaction outside
the ordinary course of business including but not limited to any transaction
involving a merger, transfer or sale of assets or equity interests or similar
transaction regarding Limited or the International Business. Limited shall
notify Purchaser promptly if it is approached by any third party regarding such
a transaction. Limited agrees that it has received good, valuable and adequate
consideration for the foregoing agreements. Limited covenants and agrees that it
will immediately terminate any negotiations with any third parties regarding the
foregoing. The provisions of this Section 5.10 shall not apply and shall be of
no further force or effect if an involuntary bankruptcy case or insolvency
proceeding is filed in the United States or in the United Kingdom against
Limited.
5.11. Announcements; Notices. Notwithstanding anything set forth herein to
the contrary, Limited shall not notify [***] and any Client, customer, vendor,
supplier, contractor, Employee or any other party to any Assumed Contract or
make any public announcement regarding the execution of this Agreement or the
nature of the transactions contemplated hereby, without the advance written
consent of Purchaser, which may be withheld by Purchaser in its sole discretion,
or as otherwise required to comply with applicable Law or this Agreement.
5.12. Landlord's Consent. After Completion, Limited and AC shall use their
reasonable endeavors to procure, as soon as practicable, the Landlord's Consent
in accordance with Section 2.5 hereof.
5.13. Use of Intellectual Property. Neither Limited, AC nor Adventis
Holdings, Inc. shall, at any time after Completion, use in the course of any
International Business (with the sole exception of AC's current contract with
[***]):
(a) the words "Adventis";
(b) any trade or service mark, business or domain name, design or logo
which, at the Completion Date, is used primarily in the International Business;
or
(c) anything which is, in the reasonable opinion of the Purchaser,
capable of confusion with such words, marks, names, designs or logos used
primarily in the International Business.
5.14. Client Confidentiality Obligations. Purchaser acknowledges and agrees
that, in connection with the assignment to it of the International Client
Contracts and the [***] Contracts, it shall assume all relevant confidentiality
and non-disclosure obligations imposed upon Limited or AC under such
International Client Contracts or [***] Contracts.
24
ARTICLE VI
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
The obligations of Purchaser to close this Agreement are subject to the
fulfillment on or prior to the Completion Date of each of the following
conditions:
6.1. Representations and Warranties True at Completion. The representations
and warranties of Sellers contained in this Agreement shall be true and correct,
in all respects, on and as of the Completion Date, with the same force and
effect as though made on and as of the Completion Date, and Sellers shall have
duly performed and complied, in all material respects, with all agreements,
covenants and conditions required by this Agreement to be performed or complied
with by them prior to or on the Completion Date. Each Seller shall have
delivered to Purchaser a certificate, dated the Completion Date and signed by
its Secretary or Chief Financial Officer, to the foregoing effect.
6.2. Release and Consent of Chase. Approval of this Agreement by Chase
including, in connection with such approval, confirmation in writing that Chase
shall release its lien and any claim it has in the Assets.
6.3. Release by Behrman. A written release by Behrman Capital and its
Affiliates ("Behrman") of any claim against Sellers or the Purchaser arising out
of this Agreement and waiving any right to revoke or rescind this Agreement.
6.4. Board Approval. Sellers shall have obtained consent of its Board of
Directors to enter into this Agreement and the other Transaction Documents and
to consummate the transactions described herein and therein.
6.5. Completion Deliveries. On or before the Completion Date, Limited and
AC shall have taken all actions required to be taken by them, or delivered all
items required to be delivered by them, pursuant to Section 2.6 of this
Agreement.
ARTICLE VII
CONDITIONS PRECEDENT TO SELLERS' OBLIGATIONS
The obligations of Sellers to close this Agreement are subject to the
fulfillment on or prior to the Completion Date of each of the following
conditions:
7.1. Representations and Warranties True at Completion. The representations
and warranties of Purchaser contained in this Agreement shall be true and
correct, in all respects, on and as of the Completion Date, with the same force
and effect as though made on and as of the Completion Date, and Purchaser shall
have duly performed and complied in all material respects with all agreements
and conditions required by this Agreement to be performed or complied with by it
prior to or on the Completion Date. Purchaser shall have delivered to Sellers a
certificate, dated the Completion Date and signed by its President or Vice
President, to the foregoing effect.
25
7.2. Consents. Purchaser shall have obtained any consents, orders, permits,
approvals and authorizations required to be obtained by it in connection with
the consummation of the transactions contemplated hereby.
7.3. Board Approval. Purchaser shall have obtained consent of its Board of
Directors to enter into this Agreement and the other Transaction Documents and
to consummate the transactions described herein and therein.
7.4. Completion Deliveries. On or before the Completion Date, Purchaser
shall have taken all actions required to be taken by it, or delivered all items
required to be delivered by it, pursuant to Section 2.6 of this Agreement.
ARTICLE VIII
TERMINATION OF AGREEMENT
8.1. Termination. This Agreement may be terminated at any time prior to the
Completion as follows (each, a "Termination"):
(i) by Purchaser, on the one hand, or by Sellers, on the other
hand, by written notice to the respective other party
hereto, in the event that the Completion shall not have
occurred on or prior to midnight local (Boston,
Massachusetts) time on April 2, 2006 (unless such event has
been caused by a breach of this Agreement by the party
seeking such termination); or
(ii) by mutual agreement of Purchaser and Sellers if one or more
of the conditions precedent in Articles VI or VII cannot be
met after reasonable efforts to meet such condition
precedent.
8.2. Survival. In the event of a Termination, (i) this Agreement shall
become null and void and of no further force and effect, except for the
provisions of Section 5.2 and Exhibits H and I and (ii) there shall be no
liability on the part of Sellers or Purchaser, their Affiliates or their
respective partners, officers, directors, employees or agents, provided,
however, that if such termination shall result from the breach by a party of the
provisions contained in this Agreement, such breaching party shall be fully
liable for any and all damages, costs and expenses sustained or incurred by the
other parties hereto as a result of such breach. The exercise by the Sellers or
Purchaser of the right to terminate this Agreement shall not terminate or limit
any remedy that the Sellers or Purchaser may have at law or in equity by reason
of the other party's breach of any obligation hereunder prior to such
termination.
8.3. Letter of Intent and Non-Disclosure Agreement. Upon execution of this
Agreement, the Letter of Intent entered into between the parties dated March 28,
2006 shall terminate and be of no further force and effect. Upon the Completion
Date, the Non-Disclosure Agreement shall terminate and be of no further force
and effect.
26
ARTICLE IX
SURVIVAL
9.1. Survival of Representations, Warranties; Claims. The representations
and warranties of the Sellers set forth in Sections 3.4, 3.8, 3.9, 3.10 and 3.11
of this Agreement shall survive the Completion Date and shall terminate and
expire on the date that is one (1) year thereafter.
ARTICLE X
MISCELLANEOUS
10.1. Certain Definitions. As used in this Agreement, the following terms
have the following meanings unless the context otherwise requires:
"AC" has the meaning specified in the first paragraph of this Agreement.
"Affiliate" with respect to any Person, means any other Person controlling,
controlled by or under common control with such Person.
"Agreement" means this Asset Purchase Agreement.
"AC Assets" has the meaning specified in Section 1.2.
"AC Intellectual Property" has the meaning specified in Section 1.2(d).
"AC IP Licences" has the meaning specified in Section 1.2(e).
"AC/Purchaser IP License" has the meaning specified in Section 2.6(a)(v).
"AC Tangible Personal Property" has the meaning specified in Section
1.2(c).
"AC Vendor and Supplier Contracts" has the meaning specified in Section
1.2(b).
"Article 5" has the meaning specified in Section 5.3(b).
"Assets" has the meaning specified in Section 1.2.
"Assignment Agreement" has the meaning specified in Section 2.6(a)(iii).
27
Portions of this document have been redacted pursuant to a
Request for Confidential Treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. Redacted
portions are indicated with the notation "[***]"
"Assumed Contracts" means the Limited Personal Property Leases, the
International Client Contracts, the Assumed International Vendor Contracts, the
IT Services Contracts, the [***] Contracts, the AC Vendor and Supplier
Contracts, the IP Licences and any other contracts or agreements included in the
Assets.
"Assumed International Vendor Contracts" has the meaning specified in
Section 1.1(f).
"Assumed Liabilities" has the meaning specified in Section 2.2.
"Bill of Sale" has the meaning specified in Section 2.6(a)(ii).
"Books and Records" of any Person means all files, documents, instruments,
papers, books and records relating to the business, operations, conditions of
(financial or other), results of operations and assets and properties of such
Person, including without limitation financial statements, Tax returns and
related work papers and letters from accountants, budgets, pricing guidelines,
ledgers, journals, deeds, title policies, minute books, stock certificates and
books, stock transfer ledgers, contracts and other agreements, licenses,
customer lists, computer files and programs, retrieval programs, operating data
and plans and environmental studies and plans.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in the United States of America are required or
authorized to close.
"Chase" means JPMorgan Chase Bank.
"Chinese License" has the meaning specified in Section 1.1(j).
"Clients" means those customers and clients that purchase the services
provided by Limited.
"Completion" has the meaning specified in Section 2.3.
"Completion Date" has the meaning specified in Section 2.3.
"contracts and other agreements" means all executory contracts, agreements,
understandings, indentures, notes, bonds, loans, instruments, leases, mortgages,
franchises, licenses, commitments or other legally binding arrangements, whether
written or oral.
"Demand" means any action, award, suit, claim or other legal recourse,
complaint, cost, debt, demand, expense, fine, liability, loss, deficiency,
damage (including diminution of value), outgoing, penalty or proceeding
(including without limitation, reasonable professional fees and costs of
investigation, litigation, settlement and judgment and interest).
"[***]" means [***].
28
Portions of this document have been redacted pursuant to a
Request for Confidential Treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. Redacted
portions are indicated with the notation "[***]"
"[***] Contracts" has the meaning specified in Section 1.2(a).
"document or other papers" means any document, agreement, instrument,
certificate, notice, consent, affidavit, letter, telegram, telex, statement,
schedule (including any Schedule to this Agreement) or exhibit (including any
Exhibit to this Agreement).
"Employees" means the employees set forth on Schedule 3.11.
"Encumbrances" has the meaning specified in Section 3.8.
"Escrow Agent" has the meaning specified in Section 2.5(e).
"Escrow Agreement" has the meaning specified in Section 2.5(e).
"Excluded Assets" has the meaning specified in Section 1.3.
"Excluded Liabilities" means any Liability (whether accrued, absolute,
contingent, known or unknown) other than the Assumed Liabilities, including,
without limitation, those for or in connection with (a) anything done or omitted
to be done before Completion in the course of the International Business or in
connection with the Assets, (b) any creditors, (c), Taxes attributable to
Limited or AC in respect of the Business or Assets relating to the period ending
on the Completion Date; and (d) all bank or other overdrafts and loans owing by
Limited or AC.
"Governmental or Regulatory Body" means any nation, state, county, city,
town, village, district, commonwealth, village, parish or other jurisdiction of
any nature; federal, state, local, municipal, foreign or other government;
governmental or quasi-governmental authority of any nature (including any
governmental agency, branch, department, official, or entity and any court or
other tribunal); multi-national organization or body; or body exercising, or
entitled to exercise, any administrative, executive, judicial, legislative,
police, regulatory or taxing authority or power of any nature.
"Intellectual Property" has the meaning specified in Section 1.2(d).
"International Business" has the meaning specified in the recitals to this
Agreement.
"International Client Contracts" has the meaning specified in Section
1.1(e).
"IP Licences" has the meaning specified in Section 1.2(e).
"IT Services Contracts" has the meaning specified in Section 1.1(g).
"IT System" has the meaning specified in Section 1.1(c).
29
"Knowledge" or "Known" shall mean, with respect to Purchaser, the current
actual knowledge, after reasonable inquiry, of the officers or employees of
Purchaser, and with respect to either Seller, the current, actual knowledge,
after reasonable inquiry, of the officers or employees of Sellers, respectively,
and with respect to other Persons, the actual knowledge of such Person or the
officers or employees of such Person.
"Landlord" has the meaning specified in Section 2.2(a).
"Landlord's Consent" has the meaning specified in Section 2.5(a)(v).
"Law" means any law, statute, rule, regulation, ordinance and other
pronouncement having the effect of law of the United States, England and Wales,
any foreign country or any domestic or foreign state, county, city or other
political subdivision or of any Governmental or Regulatory Body.
"Lease Holdback Amount" has the meaning specified in Section 2.5(e).
"Liabilities" or "Liability" means liabilities, duties and obligations of
Limited or AC (as the context requires).
"Limited" has the meaning specified in the first paragraph of this
Agreement.
"Limited Accounts Receivable" has the meaning specified in Section 1.1(b).
"Limited Assets" has the meaning specified in Section 1.1.
"Limited Intellectual Property" has the meaning specified in Section
1.1(i).
"Limited IP Licences" has the meaning specified in Section 1.1(g).
"Limited Occupancy Licence" has the meaning specified in Section
2.5(a)(ii).
"Limited Personal Property Leases" has the meaning specified in Section
1.1(d).
"Limited Tangible Personal Property" has the meaning specified in Section
1.1(c).
"London Lease" has the meaning specified in Section 2.2(a).
"Non-Disclosure Agreement" means that certain ADVENTIS Corporation
Non-Disclosure Agreement and Non-Solicitation Agreement (Standard Reciprocal)
dated as of September 12, 2005 by and between by and between ADVENTIS
Corporation and The Network Management Group.
"North America" means the United States, Canada and Mexico.
30
"Material Adverse Effect" means, in the case of any Person, any change or
changes or effect or effects that individually or in the aggregate are or may
reasonably be expected to be materially adverse to (i) the assets, properties,
business, operations, income, prospects or condition (financial or otherwise) of
such Person or the transactions contemplated by this Agreement (taking into
account, when determining any such changes or effects, the financial distress
under which Sellers have operated immediately prior to the date hereof) or (ii)
the ability of such Person to perform its obligations under this Agreement;
provided, however, the financial distress of the Sellers, in and of itself, does
not constitute a Material Adverse Effect.
"Occupancy Period" has the meaning specified in Section 2.5(a)(ii).
"Pension Plan" means the Adventis Group Personal Pension Plan.
"Permitted Encumbrances" has the meaning specified in Section 3.8.
"Person" means any individual, corporation, partnership, firm, joint
venture, association, joint-stock company, trust, unincorporated organization,
Governmental or Regulatory Body or other entity.
"Premises" has the meaning specified in Section 2.2(a).
"Purchase Price" has the meaning specified in Section 2.1.
"Purchaser" has the meaning specified in the first paragraph of this
Agreement.
"Recipient" has the meaning specified in Section 5.3(a).
"Sellers" has the meaning specified in the first paragraph of this
Agreement.
"Supplier" has the meaning specified in Section 5.3(a).
"Tangible Personal Property" has the meaning specified in Section 1.2(c).
"Tax" and "Taxes" means all taxes, charges, fees, levies or other
assessments imposed by any federal, state, local or foreign taxing authority,
whether disputed or not, including, without limitation, income, capital,
estimated, excise, property, sales, transfer, withholding, employment, payroll,
and franchise taxes and such terms shall include any interest, penalties or
additions attributable to or imposed on or with respect to such assessments.
"Termination" has the meaning specified in Section 8.1.
"Third Party Consent" means a consent, licence, approval, authorisation or
waiver required from a third party for the conveyance, transfer, assignment or
novation in favour of the Purchaser of any of the Assets in terms acceptable to
the Purchaser.
31
"Transaction Documents" means this Agreement, the Assignment Agreement, the
Bill of Sale and each other document entered into in connection with the
transactions contemplated by this Agreement.
"TUPE Regulations" means the Transfer of Undertakings (Protection of
Employment) Regulations 1981.
"VAT" means value added tax as provided under the VATA.
"VATA" means the Value Added Tax Act 1994 and references to the VATA shall
include all statutes, laws, regulations, notices, directions or similar
provisions, relating to value added tax and any value added, turnover, sales,
purchase or similar tax of the United Kingdom or of any other jurisdiction and
references to value added tax shall be construed accordingly.
10.2. Further Assurances. At any time and from time to time after the
Completion Date at the request of Purchaser, and without further consideration,
Sellers will execute and deliver such other instruments of sale, transfer,
conveyance, assignment and confirmation and take such other action as Purchaser
may reasonably deem necessary or desirable in order to transfer, convey and
assign more effectively to Purchaser, the Assets to put Purchaser in actual
possession and operating control of the International Business and to assist
Purchaser in exercising all rights with respect thereto. The parties shall use
their best efforts to fulfill or obtain the fulfillment of the conditions to the
Completion, including, without limitation, the execution and delivery of any
document or other papers, the execution and delivery of which are conditions
precedent to the Completion.
10.3. Notices. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
given personally, telegraphed, telexed, sent by facsimile transmission or sent
by prepaid air courier or certified, registered or express mail, postage
prepaid. Any such notice shall be deemed to have been given (a) when received,
if delivered in person, telegraphed, telexed, sent by facsimile transmission or
sent by prepaid air courier and confirmed in writing within three (3) Business
Days thereafter or (b) three (3) Business Days following the mailing thereof, if
mailed by certified first class mail, postage prepaid, return receipt requested,
in any such case as follows (or to such other address or addresses as a party
may have advised the other in the manner provided in this Section 10.3):
32
If to Sellers:
Adventis Limited/Adventis Corporation
c/o TRG
270 Congress Street
Boston, MA. 02210
Attention: Michael Epstein
Telefax: (617) 482-9804
with a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
Attention: Anthony E. Hubbard, Esq.
Telefax: (617) 542-2241
If to Purchaser:
Wilbass Limited
c/o TMNG Global
7300 College Boulevard, Suite 302
Overland Park, KS 66210
Attention: Micky Woo, Partner
Telefax: (913) 451-1845
with a copy to:
Bingham McCutchen LLP
2020 K Street, NW, 11th Floor
Washington, DC 20006
Attention: John J. Klusaritz, Esq.
Telefax: (202) 373-6001
and also to:
Shughart Thomson & Kilroy, P.C.
Twelve Wyandotte Plaza, 16th Floor
120 W. 12th St.
Kansas City, MO 64105
Attention: Jacob W. Bayer , Jr., Esq.
Telefax: (816) 374-0509
33
10.4. Entire Agreement. This Agreement (including the Schedules) and the
agreements, certificates and other documents delivered pursuant to this
Agreement contain the entire agreement among the parties with respect to the
transactions described herein, and supersede all prior agreements, written or
oral, with respect thereto, except that if this Agreement is terminated before
the Completion shall occur, the Non-Disclosure Agreement shall continue in full
force and effect in accordance with its terms.
10.5. Waivers and Amendments. This Agreement may be amended, superseded,
cancelled, renewed or extended, and the terms hereof may be waived, only by a
written instrument signed by the parties or, in the case of a waiver, by the
party waiving compliance. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof. The
rights and remedies of any parties based upon, arising out of or otherwise in
respect of any inaccuracy in or breach of any representation, warranty, covenant
or agreement contained in this Agreement shall in no way be limited by the fact
that the act, omission, occurrence or other state of facts upon which any claim
of any such inaccuracy or breach is based may also be the subject matter of any
other representation, warranty, covenant or agreement contained in this
Agreement (or in any other agreement between the parties as to which there is no
inaccuracy or breach).
10.6. Default Interest. If any party defaults in the payment when due of
any sum payable under this Agreement (whether payable by agreement or by an
order of a court or otherwise), the liability of that party shall be increased
to include interest on that sum from the date when such payment was due until
the date of actual payment at a rate per annum of 8 per cent above the base rate
from time to time of National Westminster Bank Plc. Such interest shall accrue
from day to day and shall be compounded annually.
10.7. Governing Law; Non-Exclusive Jurisdiction; Service of Process. This
Agreement shall be governed by and construed in accordance with the laws of
England and Wales. Any action or proceeding seeking to enforce any provision of,
or based on any right arising out of, this Agreement may (but shall not be
required to) be brought against any of the parties in the courts of the State of
Delaware, United States, and each of the parties consents to the jurisdiction of
such courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process in any action
or proceeding referred to in the preceding sentence may be served on any party
anywhere in the world.
10.8. Binding Effect; No Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement is not assignable by any party hereto without
the prior written consent of the other parties hereto except by operation of law
and any other purported assignment shall be null and void; provided, however,
that Purchaser may assign this Agreement without the consent of the other
parties hereto to any lender to Purchaser.
34
10.9. Contracts (Rights of Third Parties) Act 1999. Unless expressly
provided in the Agreement, no term of this Agreement is enforceable pursuant to
the Contracts (Rights of Third Parties) Act 1999 by any person who is not a
party to it.
10.10. Variations in Pronouns. All pronouns and any variations thereof
refer to the masculine, feminine or neuter, singular or plural, as the context
may require.
10.11. Counterparts; Facsimile Signatures. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a number
of copies hereof each signed by less than all, but together signed by all of the
parties hereto. For the purposes of facilitating the execution of this
Agreement, a facsimile or other electronic transmission of a signature shall be
deemed to be an original signature.
10.12. Exhibits and Schedules. The Exhibits and Schedules are a part of
this Agreement as if fully set forth herein. All references herein to Sections,
subsections, clauses, Exhibits and Schedules shall be deemed references to such
parts of this Agreement, unless the context shall otherwise require.
10.13. Effect of Disclosure on Schedules. Any item disclosed on any
Schedule to this Agreement shall only be deemed to be disclosed in connection
with (a) the specific representation and warranty to which such Schedule is
expressly referenced, and (b) any specific representation and warranty which
expressly cross-references such Schedule.
10.14. Headings. The headings in this Agreement are for reference only, and
shall not affect the interpretation of this Agreement.
10.15. Severability of Provisions. If any provision or any portion of any
provision of this Agreement or the application of such provision or any portion
thereof to any Person or circumstance, shall be held invalid or unenforceable,
the remaining portion of such provision and the remaining provisions of this
Agreement, or the application of such provision or portion of such provision as
is held invalid or unenforceable to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby.
10.16. Claims Made. Purchaser acknowledges and agrees that the only Demands
that may be made against AC and/or Limited are limited solely to this Agreement
and the Purchaser is prohibited from bringing any Demand that does not arise
from or relate to this Agreement. The Purchaser further acknowledges and agrees
that it is prohibited and shall not bring any Demand against (i) Chase and its
present and former agents, employees, subsidiaries, predecessors, successors and
assigns, or (ii) any individual person including any
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current or former employee, officer, director, or agent of Adventis Holdings,
Inc., AC or Limited.
[SIGNATURES TO FOLLOW ON THE NEXT PAGE]
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IN WITNESS WHEREOF, the parties have executed this Asset Purchase
Agreement as of the date first above written.
PURCHASER SELLERS
WILBASS LIMITED ADVENTIS LIMITED
By: By:
---------------------------- ------------------------------
Name: Richard P. Nespola Name: George C. Roy, Jr.
Title: Director Title: Secretary
ADVENTIS CORPORATION
By:
------------------------------
Name: George C. Roy, Jr.
Title: Vice President and Chief
Financial Officer