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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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");
2
<PAGE>
(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
3
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
(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
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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").
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<PAGE>
(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
<PAGE>
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).
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<PAGE>
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
