Exhibit 2.1

 

 

 

10 March 2015

 

 

 

 

 

 

 

THE SELLERS (AS DEFINED HEREIN)

 

 

 

V ACQUISITION LIMITED

 

 

 

  VERISK ANALYTICS, INC.

 

 

 

THIS DEED is made on 10 March 2015

 

PARTIES:

 

(1)	THE PERSONS whose names are set out in column 1 of Part A and Part B of Schedule 1 (the Sellers );

 

(2)	V ACQUISITION LIMITED , a limited liability company incorporated under the laws of England and Wales (with registered number 09473399) and having its registered address at 20-22 Bedford Row, London, WC1R 4JS (the Purchaser ); and

 

(3)	VERISK ANALYTICS, INC. , a limited liability company incorporated under the laws of Delaware and having its registered address at 545 Washington Blvd., Jersey City, NJ 07310 (the Parent Company ),

 

(together the parties and each a party ).

 

Words and expressions used in this Deed shall be interpreted in accordance with Schedule 10.

 

IT IS AGREED:

 

 

 

1.1	Each of the Sellers shall sell (or, in the case of the Beneficial Holders, shall procure the sale of), and the Purchaser shall purchase:

 

(a)

the Shares set out opposite that Seller’s name in column 3 of Part A or Part B (as applicable) of Schedule 1 and, in the case of the Investor only, column 8 of Part A of Schedule 1; and

 

(b)

the Loan Notes set out opposite that Seller’s name in columns 6 of Part A or Part B (as applicable) of Schedule 1 and, in the case of the Individual Sellers only, column 8 of Part B of Schedule 1,

 

with effect from Closing with full legal and beneficial title free from all Third Party Rights and with all rights then attaching to them including, without prejudice to clause 4, in relation to the Shares, the right to receive all distributions and dividends declared, paid or made in respect of the Shares after Closing.  The sale and purchase of the Shares and the Loan Notes shall be on the terms set out in this Deed.

 

1.2	Each of the Sellers hereby:

 

(a)

waives, in respect of the Proposed Transaction only, any rights over the Shares and Loan Notes (including to any rights of pre-emption, tag-along rights and any other restrictions on transfer over the Shares or Loan Notes conferred on it) which may have been conferred on it under the Shareholders’ Agreement, the Articles, the Loan Note Instruments or otherwise and which relate to the entry into of this Deed and the steps to be taken to implement Closing;

 

(b)

irrevocably waives with effect from Closing any rights over the Shares and Loan Notes (including to all rights of pre-emption, tag-along rights and any other restrictions on transfer over the Shares and Loan Notes conferred on it)

 

which may have been conferred on it under the Shareholders’ Agreement, the Articles, the Loan Note Instruments or otherwise;

 

(c)

irrevocably waives with effect from Closing any rights and claims (current or future, actual or contingent) (if any) it may have under or in connection with the Shareholders’ Agreement, the Articles or the Loan Note Instruments against the Company or any other Target Company; and

 

(d)

in the case of the Investor only, irrevocably waives with effect from Closing any other rights and claims (current or future, actual or contingent) (if any) which may be owed by the Company or any Target Company to the Investor in connection with any agreement or arrangement entered into before Closing.

 

1.3

Neither the Sellers nor the Purchaser shall be obliged to complete the sale or purchase of any of the Shares, the Loan Notes, the Remaining Shares or the Remaining Loan Notes unless all of the Shares, the Loan Notes, the Remaining Shares and the Remaining Loan Notes are sold and purchased simultaneously.

 

1.4	The Sellers covenant that, as of Closing:

 

(a)

the Shares and the Remaining Shares will represent all of the issued share capital of the Company;

 

(b)

the Loan Notes, the Remaining Loan Notes and the Ex-Employee Loan Notes will represent all of the loan notes issued by Nugent 2;

 

(c)

no person will have any right to require any Target Company to issue any share capital.

 

 

 

2.1	The aggregate consideration payable by the Purchaser to the Sellers for the Ordinary Shares shall be the Ordinary Share Price and the individual consideration payable by the Purchaser for the Ordinary Shares held by each Seller shall be:

 

(a)

the amount set out opposite that Seller’s name in column 4 of Part A or column 4 of Part B (as applicable) of Schedule 1 (or if the Closing Date is on or after 2 August 2015, the amount set out opposite that Seller’s name in column 5 of Part A or column 5 of Part B (as applicable) of Schedule 1); and

 

(b)

an amount representing that Seller’s Ordinary Share Proportion of the Additional Ordinary Share Price.

 

2.2	The aggregate consideration payable by the Purchaser to the Investor for the Preference Shares shall be the Preference Share Price.

 

2.3	The aggregate consideration payable by the Purchaser to the Sellers for the Loan Notes shall be the Loan Note Price and the individual consideration payable by the Purchaser for the Loan Notes held by each Seller shall be:

 

(a)

the amount set out opposite that Seller’s name in column 7 of Part A or Part B (as applicable) of Schedule 1, and, in the case of the Individual Sellers, column 9 of Part B of Schedule 1; and

 

 

(b)

an amount representing that Seller’s Loan Note Proportion of the Additional Loan Note Price.

 

2.4	Subject to clause 2.5, on Closing, the Purchaser shall pay to:

 

(a)

the Sellers the amount which is equal to the Price less the Principal SPA Escrow Amount; and

 

(b)

the Escrow Agent the amount in sterling which is equal to the Principal SPA Escrow Amount,

 

in each case, in accordance with Schedule 4.

 

2.5	Any payment made in satisfaction of a liability arising under a Seller Obligation or a Purchaser Obligation shall:

 

(a)

if it is specifically referable to a class of Shares or Loan Notes, so far as possible adjust the price paid for the relevant Shares or the relevant Loan Notes (provided that the price paid for such Shares or Loan Notes shall not be adjusted below zero, in which case the price for such Shares or Loan Notes shall be adjusted to zero and the balance shall be subject to the provisions of sub-clause (b) below; or

 

(b)

otherwise, it shall adjust the price for such Shares or Loan Notes as the Investor, the Individual Sellers’ Representative and the Purchaser agree to be appropriate in the circumstances, or in the absence of such agreement within 10 Business Days of such payment, it shall adjust pro rata the price paid for the Shares and the Loan Notes (provided that the price paid for the Shares or the Loan Notes shall not be adjusted below zero).

 

 

 

The provisions of Schedule 2 shall apply in relation to the purchase of the Remaining Shares and the Remaining Loan Notes, and the redemption of the Ex-Employee Loan Notes.

 

 

 

4.1	Each of the Sellers severally (but not jointly or jointly and severally) undertakes to the Purchaser that since the Accounts Date:

 

(a)

there has not been any Leakage, and there will not be any Leakage in the Pre-Closing Period, in each case to, or on behalf of, or for the benefit of it or any of its Affiliates; and

 

(b)

no arrangement or agreement has been made or will be made that will result in any Leakage, in each case to, or on behalf of, or for the benefit of it or any of its Affiliates.

 

4.2	Subject to clauses 4.4, 4.5 and 4.6, each Seller severally (but not jointly or jointly and severally) undertakes to the Purchaser that if there is a breach of any of the undertakings set out in clause 4.1 by it, such that there is Leakage to, on behalf, or for

 

the benefit of it or any of its Affiliates, it shall, following Closing, pay or procure payment in cash to the Purchaser on demand a sum equal to the amount of:

 

(a)

such Leakage; and

 

(b)

interest on the amount of such Leakage from and including the date on which such Leakage occurred until and including the date on which the undertaking to pay in accordance with this clause 4.2 is fully satisfied (provided that where the undertaking to pay is at any time satisfied in part, interest shall from the date of such partial satisfaction only accrue on the amount of any such Leakage which is left outstanding), and for these purposes interest shall accrue at a rate of LIBOR plus two per cent. per annum compounding monthly and the rate of LIBOR shall be fixed on the first Business Day of each month (such interest amount being Leakage Interest ),

 

provided always that the Investor, the Individual Sellers’ Representative and the Purchaser shall first procure that any payment due to the Purchaser under this clause 4.2 shall be paid from the Escrow Account until there are insufficient funds remaining in the Escrow Account to satisfy any payment obligation pursuant to this clause 4.2 and, thereafter, from the relevant Seller which is in breach of any of the undertakings set out in clause 4.1.

 

4.3

To the extent that there is a breach of any of the undertakings set out in clause 4.1 as if such undertakings had been given in the Secondary SPA by the Secondary SPA Sellers, in respect of any Leakage to, or on behalf of, or for the benefit of any such Secondary SPA Seller or any of its Affiliates ( Secondary Leakage ), the Sellers acknowledge and agree that the Purchaser shall have the ability to claim an amount equal to such Secondary Leakage and the relevant Leakage Interest from (and to the extent of amounts from time to time standing to the credit of) the Escrow Account, and the Investor, the Individual Sellers’ Representative and the Purchaser shall procure that, where this clause 4.3 applies, an appropriate payment shall be made to the Purchaser from the Escrow Account.  For the avoidance of doubt:

 

(a)

any liability to make a payment in respect of Secondary Leakage and the relevant Leakage Interest from the Escrow Account pursuant to this clause 4.3 shall terminate on the expiration of the Leakage Escrow Period, with the provisions of clause 4.5 applying to the termination of such liability, mutatis mutandis ; and

 

(b)

neither the Sellers nor the Secondary SPA Sellers shall have any liability in respect of any Secondary Leakage except in respect of any payments to be made from the Escrow Account in accordance with this clause 4.3.

 

4.4

Any payment due from the Sellers or Escrow Account under clause 4.2, or made from the Escrow Account under clauses 4.3 or 10.3 shall be reduced to take account of any Relief or other tax benefit obtained by the Purchaser or a Target Company in respect of the matter giving rise to the payment, including any Relief or other tax benefit which is likely to be utilised by the Purchaser or a Target Company to reduce taxable profits in respect of the accounting period in which Closing takes place or the immediately preceding accounting period.

 

 

4.5

The liability of each of the Sellers pursuant to this clause 4 shall terminate on the expiration of the Leakage Escrow Period unless, prior to that date, the Purchaser has notified the relevant Seller of a breach by it of the undertakings set out in clause 4.1 in accordance with clause 10.3(a), in which case, the provisions of clause 10 shall apply in respect of such claim.  For the avoidance of doubt, there shall be no double counting in respect of any Leakage.

 

4.6

By no later than 5:00 p.m. (London time) on the fifth Business Day prior to the Closing Date, the Sellers shall notify the Purchaser of any Leakage of which they are aware (including all Transaction Costs and Transaction Bonuses) which has occurred prior to the date of such notification or is expected to occur on or prior to Closing, any amount paid, payable or otherwise due by or from the relevant Seller plus any applicable Leakage Interest (the Leakage Amount ) shall be deemed to give rise to a corresponding reduction in the Price by an amount equal to the aggregate Leakage Amount. The reduction in the Price shall discharge the relevant Seller’s obligations to make payment of such Leakage Amount pursuant to clause 4.2. For the avoidance of doubt, any Leakage Amount notified to the Purchaser pursuant to this clause 4.6 and deducted from the Price shall neither constitute a Leakage Claim nor be paid from the Escrow Amount.

 

 

 

5.1	Closing shall be conditional on any applicable waiting period (and any extension thereof) under the HSR Act having expired or having been terminated.

 

5.2

The Purchaser shall, at its own cost, use all reasonable efforts to ensure that the Condition is fulfilled promptly after the date of this Deed.  The Purchaser shall control and lead all joint filings, communications, defence, litigation, negotiations and strategy with respect to obtaining all consents, approvals or actions of any Governmental Entity which are required in order to satisfy the Condition and shall take all steps necessary for that purpose (including, subject to the Investor complying with its obligations in clause 5.5, making appropriate submissions, notifications and filings, in consultation with the Investor, within 10 Business Days after the date of this Deed).  Subject to the foregoing, the Purchaser and Investor shall consult, and share with the other party drafts of any material filings or communications with Governmental Entities, a reasonable period of time in advance and consider in good faith the comments and views of the other party in connection with any filing, communication, defence, litigation, negotiation or strategy with respect to the transactions contemplated hereby, and, to the extent permitted by the Governmental Entity and applicable law, shall give the other party and its representatives the opportunity to attend and participate in any material in-person or telephonic meeting or conference with any Governmental Entity regarding any of the transactions contemplated hereby. Should any material communications be initiated by a Governmental Entity with any party individually, and the contacted party is unable to give the other party and its representatives an opportunity to attend and participate in the relevant communications, the contacted party shall consult with the other party within a reasonable period of time after the communications.

 

5.3	The Purchaser shall offer (and not withdraw) all undertakings to such Governmental Entity as may be necessary or required by such Governmental Entity to secure

 

satisfaction of the Condition, including agreeing to any undertakings, commitments, conditions, modifications or remedies, whether involving constraints on prices or other behaviour or otherwise, relating to the assets, undertaking or business of the Purchaser and/or the Purchaser Group, provided that, notwithstanding any other provision in this Deed, the Purchaser shall not be required to agree to any undertakings which oblige the Parent Company or any of its Affiliates to divest of a substantial division, or a substantial portion of a substantial division, of the Purchaser Group or any assets or businesses of the Group. For these purposes, a division or portion of a division, shall be “substantial” where its fair market value is equal to or greater than US$50 million.

 

5.4

The Purchaser shall not make any filing with any Governmental Entity other than the United States Department of Justice and United States Federal Trade Commission in connection with the Proposed Transaction without obtaining the prior written approval of the Investor (not to be unreasonably withheld or delayed) as to the making of it and its form and content.  The Purchaser shall not take any action, including the acquisition of any undertaking, or any business, activities or assets of any undertaking, that may reasonably be expected to either:

 

(a)

materially delay the satisfaction of the Condition; or

 

(b)

result in the Condition not being satisfied prior to the Longstop Date.

 

5.5

The:

 

(a)

Sellers shall provide, and shall procure that the Target Companies provide, the Purchaser and any Governmental Entity with any necessary information and documents reasonably required for the purpose of the Purchaser or any member of the Purchaser Group making any submissions, notifications and filings under the HSR Act to any such Governmental Entity, save that the Investor shall be entitled to keep confidential and shall not be obliged to disclose to the Purchaser or any of its advisers any confidential or financial information regarding Hellman & Friedman LLC, Charterhouse Capital Partners LLP or any of their respective Affiliates provided, however, that such confidential or financial information shall be disclosed to the Purchaser’s outside antitrust counsel on a counsel to counsel basis to the extent it is relevant to obtaining consents, approvals or actions of any Governmental Entity which are required in order to satisfy the Condition; and

 

(b)

Investor shall comply, and shall procure that any Target Company complies, with any filing requirements in relation to the Condition within 10 Business Days of the date of this Deed.

 

5.6	The Condition may only be waived by the written agreement of the Investor and the Purchaser.

 

5.7	The Purchaser shall notify the Investor and the Individual Sellers’ Representative promptly upon becoming aware that the Condition has been fulfilled.  The first Business Day in London on or by which Condition has been fulfilled (or waived in accordance with clause 5.6) is the Unconditional Date .

 

5.8	If the Closing Date has not occurred on or before 8 March 2016 (the Longstop Date ) this Deed shall automatically terminate (other than the Surviving Provisions).

 

 

5.9

In the event of termination of this Deed pursuant to clause 5.8, no party (nor any of its Affiliates) shall have any claim under this Deed of any nature whatsoever against any other party (or any of its Affiliates) except, subject to clause 9.5, in respect of any rights and liabilities which have accrued before termination (including, for the avoidance of doubt, any rights or liabilities in respect of a breach of clause 5, for which all other rights or remedies available, including the right to claim damages, shall remain) or under any of the Surviving Provisions.

 

 

 

6.1

From the date of this Deed until Closing, each of the Sellers shall severally (but not jointly or jointly and severally), so far as they are each able pursuant to their contractual rights (including under the terms of the Shareholders’ Agreement), and in their capacity as shareholders in the Company and/or, as applicable, directors or executive officers of Target Companies (unless otherwise required or expressly permitted by the terms of any Transaction Document (including any Permitted Leakage) or as may be approved by the Purchaser):

 

(a)

ensure that the business of the Target Companies is carried on only in the ordinary course in substantially the same manner as the business of the Target Companies has been carried on in the 12 month period prior to the date of this Deed (the ordinary course for this purpose shall include, for the avoidance of doubt, the carrying on of the business acquired as part of Project Paris and/or the continuation and/or implementation of the joint venture between Wood Mackenzie Limited and CGG Services (UK) Limited, both of which have been Disclosed and the taking of any actions in accordance with the terms of and pursuant to the implementation of this Deed);

 

(b)

not knowingly take any action which would result in the business of the Target Companies being conducted in a manner which the Key Managers know to be in breach of any applicable law or regulation, to the extent that such breach would have a material impact on the value of the Target Companies.  For the purposes of this clause (b), material means an amount in excess of £50,000; and

 

(c)

ensure that none of the actions referred to in Schedule 3 take place,

 

provided always that the compliance by the Key Managers with their obligations under clause 6.10 shall not be a breach of this clause 6.1.

 

6.2

From the date of this Deed until Closing, the Sellers shall not approve any matter presented to the shareholders of the Company for approval (either in their capacity as direct or indirect shareholders or pursuant to their contractual rights, including under the terms of the Shareholders’ Agreement) in a way that would, and the Investor shall procure that any Investor Director shall not exercise his or her rights as a director of the Company or any member of the Group in a way that would, result in (unless otherwise required or expressly permitted by the terms of any Transaction Document (including any Permitted Leakage) or as may be approved by the Purchaser):

 

(a)

the business of the Target Companies not being carried on only in the ordinary course in substantially the same manner as the business of the Target Companies has been carried on in the 12 month period prior to the date of

 

this Deed (the ordinary course for this purpose shall include, for the avoidance of doubt, the carrying on of the business acquired as part of Project Paris and/or the continuation and/or implementation of the joint venture between Wood Mackenzie Limited and CGG Services (UK) Limited, both of which have been Disclosed and the taking of any actions in accordance with the terms of and pursuant to the implementation of this Deed); or

 

(b)

the occurrence of any of the actions referred to in Schedule 3.

 

6.3

The liability of each of the Sellers arising as a result of a breach of clause 6.1 or 6.2 shall terminate on the expiration of the Leakage Escrow Period unless, prior to that date, the Purchaser has notified the relevant Seller of a breach by it of the undertakings set out in clause 6.1 and 6.2 (in accordance with clause 10.3(a)), in which case the provisions of clause 10 shall apply in respect of such claim, provided always that the Investor, the Individual Sellers’ Representative and the Purchaser shall procure that any payment due to the Purchaser under this clause 6.3 shall be paid from the Escrow Account and shall not exceed the amount standing to the credit of the Escrow Account from time to time. For the avoidance of doubt, the total aggregate liability of the Sellers arising as a result of all claims for a breach of clauses 6.1 and 6.2 shall be the amount standing to the credit of the Escrow Account from time to time and the Escrow Account shall be the sole recourse of the Purchaser in respect of all claims for a breach of clauses 6.1 and 6.2.

 

6.4

The Purchaser shall not exercise any of its rights pursuant to this clause 6 (including the right to refuse to approve any particular transaction or action) in such a manner as would prevent any Target Company from reasonably undertaking action in an emergency or other extraordinary situation beyond the reasonable control of any Target Company with the intention of minimising any adverse effect on any Target Company (and of which the Purchaser will be promptly notified).

 

6.5

By no later than 5:00 p.m. (London time) on the fifth Business Day prior to the Closing Date, the Sellers shall procure that the Company shall notify to the Purchaser in writing the amount of the Facilities Redemption Amount (supported by pay-off letters in the customary form from the relevant banks).

 

6.6

From the date of this Deed until Closing, the Key Managers will (so far as they are able in their capacity as shareholders in the Company, directors or executive officers of the Target Companies and subject to compliance with applicable laws) give and will cause to be given to the Purchaser, its advisers and authorised representatives, during normal Working Hours and at the reasonable out-of-pocket expense of the Purchaser, reasonable access to the offices and properties, books and records, employees, and financial and operating data of the Target Companies which may reasonably be requested by the Purchaser. The rights of the Purchaser under this clause 6.6 shall be subject to any bona fide need to preserve any applicable privilege or confidentiality (including commercial confidentiality).

 

6.7	The Investor and the Key Managers shall (so far as they are able in their capacity as shareholders in the Company), and shall cause (so far as they are able in their capacity as directors or executive officers of the Target Companies) the Target Companies to:

 

 

(a)

provide the Parent Company (as soon as is reasonably practicable and in no event later than 6 April 2015) with financial statements as of 1 January 2013, 31 December 2013 and 31 December 2014, and for the years ended 31 December 2013 and 31 December 2014, prepared in accordance with IFRS and in full compliance with the requirements of SEC Regulation S-X Rule 3-05, audited by Deloitte UK in accordance with United States generally accepted auditing standards ( US GAAS ) (the Annual Financial Statements ), together with the expected final draft audit report from Deloitte UK to be filed with the SEC, in each case on a customary hold harmless and non-reliance basis (provided that, subject to Deloitte UK’s consent to the inclusion of its report in such filing being given, the final signed audit report from Deloitte UK shall not be subject to the hold harmless or non-reliance provisions);

 

(b)

provide the Parent Company (as soon as is reasonably practicable and in no event later than 8 May 2015) with interim financial statements at 31 March 2015 and for the three months ended 31 March 2015 and 31 March 2014 in accordance with International Accounting Standard ( IAS ) 34 “Interim Financial Reporting”, which (in relation to the interim financial statements at 31 March 2015 and for the three months then ended) shall have been reviewed by Deloitte UK in accordance with US GAAS applicable to reviews of interim financial information (the First Quarter Financial Statements ), for the purposes of the issuance of a comfort letter as contemplated by clause 6.10(b);

 

(c)

if Closing has not occurred prior to 30 June 2015, provide the Parent Company (as soon as is reasonably practicable and in no event later than 35 days after the end of the  relevant financial quarter) with quarterly financial statements at the end of each quarter and for each calendar quarter then ended and the corresponding calendar quarter for the prior year in accordance with IAS 34 “Interim Financial Reporting”, reviewed by Deloitte UK in accordance with US GAAS applicable to reviews of interim financial information (the Subsequent Quarterly Financial Statements and, together with the First Quarter Financial Statements, the Quarterly Financial Statements ), for the purposes of the issuance of a comfort letter as contemplated by clause 6.10(b); and

 

(d)

if the Purchaser notifies the Investor and the Key Managers on or before 31 August 2015 that it reasonably believes that Closing may not occur prior to 30 September 2015, provide the Parent Company (as soon as is reasonably practicable and in no event later than 30 September 2015) with interim financial statements at 30 June 2015 and for the six months ended 30 June 2015 and 30 June 2014 in accordance with International Accounting Standard ( IAS ) 34 “Interim Financial Reporting”, which (in relation to the interim financial statements at 30 June 2015 and for the six months then ended) shall have been reviewed by Deloitte UK in accordance with US GAAS applicable to reviews of interim financial information (the First Half Financial Statements and, together with the Quarterly Financial Statements, the Subsequent Financial Statements ).

 

6.8

Where:

 

 

(a)

the Parent Company has not been provided with the Annual Financial Statements required by clause 6.7(a) on or before 6 April 2015;

 

(b)

the Parent Company has been provided with the Annual Financial Statements and First Quarter Financial Statements required by clauses 6.7(a) and 6.7(b) on or before 8 May 2015; and

 

(c)

the Unconditional Date has occurred on or before 1 May 2015,

 

the Marketing Period shall commence 5 Business Days after the receipt by the Parent Company of the Annual Financial Statements and the First Quarter Financial Statements.

 

6.9

Where:

 

(a)

the Parent Company has not been provided with the Annual Financial Statements required by clause 6.7(a) on or before 6 April 2015;

 

(b)

the Parent Company has been provided with:

 

(i)

the Annual Financial Statements and the First Quarter Financial Statements required by clauses 6.7(a) and 6.7(b) on or before 8 May 2015; or

 

(ii)

the Annual Financial Statements and any relevant Quarterly Financial Statements required by clauses 6.7(a), 6.7(b) and 6.7(c) on or before the date which falls 35 days after the end of the last relevant financial quarter; or

 

(iii)

the Annual Financial Statements and any relevant Subsequent Financial Statements required by clauses 6.7(a), 6.7(b), 6.7(c) and/or 6.7(d) (as applicable) on or before 30 September 2015; and

 

(c)

the Unconditional Date has occurred after 1 May 2015 but prior to the Parent Company being provided with the financial statements set out in clause (b)(i), (b)(ii) or (b)(iii), as the case may be,

 

the Marketing Period shall commence 5 Business Days after the receipt by the Parent Company of the Annual Financial Statements and the First Quarter Financial Statements (in the case of clause (b)(i)), the Annual Financial Statements and the relevant Quarterly Financial Statements (in the case of clause (b)(ii)), or the Annual Financial Statements and the relevant Subsequent Financial Statements (in the case of clause (b)(iii)).

 

6.10

From the date of this Deed until Closing, at the reasonable out-of-pocket expense of the Parent Company, the Investor and the Key Managers shall (so far as they are able in their capacity as shareholders in the Company), and shall cause (so far as they are able in their capacity as directors or executive officers of the Target Companies) the Target Companies to:

 

(a)

use all reasonable endeavours to furnish to the Parent Company such financial and operating data and other information concerning the Target Companies as the Parent Company may reasonably request (including financial statements and access to audit work papers, and including drafts

 

(which may be clearly legended as preliminary) of the First Quarter Financial Statements and, if relevant, any Subsequent Quarterly Financial Statements and the First Half Financial Statements), together with any other financial information of the Target Companies then required by the SEC in order to permit the Parent Company to undertake a registered public offering in the Marketing Period;

 

(b)

instruct its employees, auditors, counsel and other advisers and representatives to cooperate with the Parent Company and its underwriters, financing sources and their counsel in connection with the Parent Company Group’s proposed raising of debt and/or equity financing for the Proposed Transaction in the capital markets, including (i) cooperation in relation to customary due diligence and marketing efforts (including participation of senior management of the Target Companies in a reasonable number of meetings and due diligence sessions with the Parent Company’s underwriters, financing sources and their counsel), (ii) the preparation by the Parent Company and its advisers of pro forma financial statements prepared in accordance with Generally Accepted Accounting Principles in the United States and in compliance with the requirements of Regulation S-K and Regulation S-X under the Securities Act of 1933, as amended, that are required to be included or incorporated by reference in an offering registered with the U.S. Securities and Exchange Commission on Form S-3, and (iii) in the case of Deloitte UK, instructing cooperation in relation to participation in customary auditor due diligence calls and the provision to the Parent Company’s underwriters of customary comfort letters to be delivered on the pricing and closing date of each such financing, subject to the entry into of a customary engagement letter between Deloitte UK and the Company (which entry into by the Company the Investor and the Key Managers shall cause, so far as they are able in accordance with this clause) and, where such offering is to be made (in whole or in part) outside the USA, the Parent Company’s underwriters; and

 

(c)

provide such other reasonable assistance and information as may be reasonably requested by the Parent Company or its underwriters in connection with the preparation, filing and distribution of documentation (including a prospectus in one or more registered offerings) related to the Purchaser Group’s proposed raising of debt and/or equity financing for the Proposed Transaction in the capital markets.

 

For the avoidance of doubt, no actions taken pursuant to this clause 6.10 shall under any circumstance constitute a breach of clause 6.1 or clause 6.2, or oblige the Investor or the Key Managers, prior to the Unconditional Date, to breach applicable anti-trust laws.

 

6.11

If the Investor or any Key Manager becomes aware (without any obligation to make due enquiry) that the Management Accounts or the Recent Accounts, or any financial or operating data or other information furnished to the Parent Company pursuant to clauses 6.7 or 6.10 is materially inaccurate or contains any untrue statement of a material fact, the Investor or such Key Manager shall as soon as reasonably practicable notify the Parent Company of the same and provide the Parent Company with the corrected or updated data or information.

 

 

6.12

The Investor warrants to the Purchaser as at the date of this Deed that neither it, nor any Target Company nor any of their Representatives is negotiating, or continuing any discussions or proposing to negotiate or enter into discussions in relation to any potential Third Party Transaction, and any previous negotiations or discussions have ceased.

 

6.13	The Investor undertakes that, in the Pre-Closing Period:

 

(a)

it shall not, and it shall procure that no Target Company nor any of their Representatives shall, directly or indirectly solicit, encourage, enter into any discussions with any other person in relation to a Third Party Transaction, or otherwise seek to procure a possible Third Party Transaction or enter into any discussions, negotiations, correspondence or arrangement relating to any unsolicited Third Party Transaction (other than to reject any unsolicited Third Party Transaction); and

 

(b)

it shall promptly notify the Purchaser in writing of any approach received by it, or received by any Target Company or any of its or their Representatives of which it becomes aware.

 

 

 

7.1	Closing shall take place at the London offices of the Sellers’ Lawyers on the earlier of:

 

(a)

four Business Days after the conclusion of a registered public offering of securities by the Parent Company in connection with the financing of the Proposed Transaction, such offering not taking place in a Marketing Period (it being acknowledged by the parties that the Parent Company is not obliged to conduct such offering);

 

(b)

four Business Days after the end of the Marketing Period; or

 

(c)

such date as the Purchaser may nominate to the Investor and the Individual Sellers’ Representative in writing on not less than four Business Days’ notice,

 

 (the Closing Date ).

 

7.2	At Closing, each of the parties shall deliver or perform (or ensure that there is delivered or performed) all those documents, items and actions respectively listed in relation to that party or any of its Affiliates (as the case may be) in Schedule 4.

 

7.3

If any of the material obligations in Schedule 4 are not fully complied with, the Purchaser, in the case of non-compliance by the Sellers, or the Investor and the Individual Sellers’ Representative together, in the case of non-compliance by the Purchaser, shall be entitled (in addition to and without prejudice to all other rights or remedies available to it, including the right to claim damages) by written notice to the other, served on such date:

 

(a)

to require Closing to take place so far as practicable having regard to the defaults which have occurred;

 

 

(b)

to notify the party in default of a new date for Closing (being not more than 10 Business Days after the original date for Closing) in which case the provisions of this clause 7 and Schedule 4 shall apply to Closing as so deferred but on the basis that such deferral may only occur once; or

 

(c)

terminate this Deed (other than the Surviving Provisions).

 

7.4	For the purposes of clause 7.3, a material obligation is:

 

(a)

in respect of the Sellers, those obligations set out in paragraphs 1, 2 and 3 of Part A of Schedule 4; and

 

(b)

in respect of the Purchaser, those obligations set out in paragraphs 1(b) - 1(e) (inclusive) of Part B of Schedule 4.

 

7.5

If this Deed is terminated pursuant to clause 7.3(c), no party (nor any of its Affiliates) shall have any claim under this Deed of any nature whatsoever against any other party (or any of its Affiliates) except, subject to clause 9.5, in respect of any rights and liabilities which have accrued before termination (including, for the avoidance of doubt, any rights or liabilities in respect of the breach of any of the material obligations in Schedule 4 that gave rise to the termination, for which all other rights or remedies available, including the right to claim damages, shall remain) or under any of the Surviving Provisions.

 

 

 

8.1

Each of the Sellers in relation to the Shares and Loan Notes held by them severally (but not jointly or jointly and severally) warrants to the Purchaser that the statements contained in this clause 8.1 (the Fundamental Warranties ) are true and accurate as at the date of this Deed and immediately prior to Closing:

 

(a)

it is the sole legal and beneficial owner (or in the case of the Beneficial Holders, beneficial owner only) and is entitled to sell and transfer or procure the sale and transfer of the full legal and beneficial ownership in the Shares and Loan Notes to be sold by it to the Purchaser on the terms set out in this Deed;

 

(b)

it has the necessary power, authority and capacity to enter into and perform this Deed and the Transaction Documents to which it is party and to sell and transfer or procure the transfer of its Shares and Loan Notes in accordance with this Deed;

 

(c)

there are no Third Party Rights on, over or affecting any of the Shares or Loan Notes held by it or its right to transfer (or procure the transfer of) the Shares or Loan Notes held by it (save that, in the case of the Beneficial Holders, legal title to their Shares and Loan Notes is held by the EBT);

 

(d)

in the case of the Investor, its entry into and performance of this Deed and/or any Transaction Documents to which it is a party will not:

 

(i)

breach any provision of its memorandum and articles of association, by-laws or equivalent constitutional documents; or

 

 

(ii)

(subject, where applicable, to fulfilment of the Condition) result in a breach of any laws or regulations in its jurisdiction of incorporation or of any order, decree or judgment of any court or any governmental or regulatory authority;

 

(e)

in the case of any Seller which is not an individual:

 

(i)

this Deed and each Transaction Document to be entered into by it will constitute valid and binding obligations of such Seller in accordance with their respective terms;

 

(ii)

entry into and compliance by it with the terms of this Deed and each of the Transaction Documents to which it is a party will not constitute a default or a breach under any provision of:

 

(A)

any law, order, judgment, decree or regulation by which such Seller is bound; or

 

(B)

any agreement or contract to which such Seller is a party or by which it is bound;

 

(f)

it is not insolvent or bankrupt under the laws of its jurisdiction of incorporation, unable to pay its debts as they fall due or has proposed or is liable to any arrangement (whether by court process or otherwise) under which its creditors (or any group of them) would receive less than the amounts due to them.  There are no proceedings in relation to any compromise or arrangement with creditors or any winding up, bankruptcy or insolvency proceedings concerning such Seller and no events have occurred which would justify such proceedings.  No steps have been taken to enforce any security over any assets of such Seller and no event has occurred to give the right to enforce such security;

 

(g)

so far as it is aware, it is not subject to any order, judgment, direction, investigation or other proceedings by any Governmental Entity which will, or are likely to, prevent or delay the fulfilment of the Condition; and

 

(h)

this Deed and the Transaction Documents to which it is party, once executed, will constitute legal, valid and binding obligations of such Seller in accordance with their respective terms.

 

8.2	For the avoidance of doubt, the Fundamental Warranties are given by each Seller severally (but not jointly or jointly and severally) and only in relation to its own authority, power, title and capacity and solvency.

 

8.3	The aggregate total liability of each Seller in respect of all claims (including Claims and breaches of undertakings) under this Deed shall not exceed an amount equal to the amount received by it at Closing for its Shares and Loan Notes (as set out in clauses 2.1, 2.2 and 2.3), provided that:

 

(a)

the aggregate liability for any Claim shall be the amount standing to the credit of the Escrow Account from time to time; and

 

(b)

the Investor, the Individual Sellers’ Representative and the Purchaser shall first procure that any payment due to the Purchaser for a breach of a

 

Fundamental Warranty, a Claim, or a breach of clauses 6.1 or 6.2, a breach of clause 4.1 or where clause 4.3 applies shall be paid from the Escrow Account until there are insufficient funds remaining in the Escrow Account to satisfy any payment obligation pursuant to this clause 8.3 and, thereafter, in the case of the Fundamental Warranties or clause 4.1 (but not in the case of Claims or a breach of clause 6.1 or 6.2) from the relevant Seller on a several basis which is in breach of the Fundamental Warranties or clause 4.1.

 

8.4

Except in the case of and as against any individual or entity who has acted fraudulently, the Sellers agree and undertake with the Purchaser that, other than in respect of any claims arising out of or pursuant to the Transaction Documents, no Seller nor any of its Affiliates has any rights against, and will waive and shall not make any claim against, any of the Target Companies or any employee, director, officer, adviser or agent of any of the Target Companies.

 

8.5

Except in the case of and as against any individual or entity who has acted fraudulently, the Purchaser agrees and undertakes with the Sellers (each Seller contracting for itself and on behalf of each individual or entity referred to in this clause 8.5) that in connection with the Proposed Transaction, other than as set out in this Deed or any other Transaction Documents (including any claims arising pursuant to or in connection with this Deed or any Transaction Document), neither it nor any other member of the Purchaser Group has any rights against, and will waive and shall not make any claim against:

 

(a)

any of the Target Companies;

 

(b)

any employee, director, officer, adviser or agent of any of the Target Companies; or

 

(c)

the Sellers or any of their Affiliates on whom the Purchaser may have relied before agreeing to any term of this Deed or any other Transaction Document or before entering into this Deed or any other Transaction Document.

 

 

 

9.1	Subject to clause 9.4, the Key Managers severally (but not jointly or jointly and severally) warrant to the Purchaser as at the date of this Deed in terms of the Business Warranties.

 

9.2

Where any Business Warranties are qualified by use of language such as “so far as the Key Managers are aware” or similar, such awareness shall be confined to the Key Manager’s own knowledge and belief, which knowledge and belief shall be interpreted to extend only to those facts, matters and circumstances that are within the actual knowledge of the relevant Key Manager as at the date of this Deed, having made due enquiry of each of Brian Aird, Paul Chowdry, Richard Collins, Lee Golding, Neal Anderson and John Linwood, and which the Key Manager is actually aware (as at the date of this Deed) might constitute a breach of a Business Warranty (but so that each Key Manager shall be deemed to have the knowledge and awareness of the other Key Manager).

 

 

 

9.3	None of the Business Warranties are being given in respect of or apply in relation to the business that was acquired by the Target Companies from Deloitte LLP as part of Project Paris on 5 March 2015.

 

9.4	The Business Warranties are in each case given subject to the limitations and qualifications set out in clauses 9.2, 9.3, 9.5 and Schedule 7.

 

9.5	In the event that Closing does not occur then, except in the case of fraud, no Key Manager shall have any liability under or in connection with any of the Business Warranties.

 

 

 

10.1	The Purchaser shall, on the Closing Date, pay, or procure that there is paid, an amount in pounds sterling equal to the Escrow Amount by electronic funds transfer for value to the Escrow Account to be held, in accordance with the terms of this Deed and the Escrow Agreement.

 

10.2	The Escrow Account shall be operated, and the Escrow Amount and interest accruing on the Escrow Amount (or any part of it) shall be applied, in accordance with this clause 10 and the Escrow Agreement.

 

10.3	Provided that at the relevant time there remains a portion of the Escrow Amount in the Escrow Account, to the extent that:

 

(a)

prior to the Leakage Release Date, the Purchaser has notified the Investor and the Individual Sellers’ Representative in writing of any claim against a Seller for a breach of clauses 4.1, 6.1 or 6.2, or where clause 4.3 applies (a Leakage Claim ) stating in reasonably specific detail the nature of the Leakage Claim, the Purchaser’s reasonable estimate of the amount claimed in respect of the Leakage Claim and reasonable evidence to support such Leakage Claim; and

 

(b)

the Leakage Claim, including the amount which any or all of the Sellers are liable to pay as a result of such Leakage Claim (the Leakage Amount Claimed ) has been Determined,

 

the Purchaser, the Investor and the Individual Sellers’ Representative shall, as soon as reasonably practicable after (and to the extent that) the Leakage Claim has been so Determined in favour of the Purchaser, issue joint written instructions to the Escrow Agent to pay from the Escrow Account to the Purchaser, an amount equal to such Leakage Amount Claimed, out of the Escrow Account to the Purchaser.

 

10.4	Provided that at the relevant time there remains a portion of the Escrow Amount in the Escrow Account, to the extent that:

 

(a)

prior to the Warranty Release Date, the Purchaser has notified the Investor and the Individual Sellers’ Representative in writing of any Claim or any claim for a breach of a Fundamental Warranty (a Warranty Claim ) stating in reasonably specific detail the nature of the Warranty Claim, the Purchaser’s reasonable estimate of the amount claimed in respect of the Warranty Claim and reasonable evidence to support such Warranty Claim; and

 

 

(b)

the Warranty Claim, including the amount which any or all of the Sellers are liable to pay as a result of such Warranty Claim (the Warranty Amount Claimed ) has been Determined,

 

the Purchaser, the Investor and the Individual Sellers’ Representative shall, unless such amount has already been paid in full, as soon as reasonably practicable (and to the extent that) after the Warranty Claim has been so Determined in favour of the Purchaser, issue joint written instructions to the Escrow Agent to pay from the Escrow Account to the Purchaser, an amount equal to such Warranty Amount Claimed, out of the Escrow Account to the Purchaser.

 

10.5	A Leakage Claim or Warranty Claim (as applicable) shall be regarded as Determined as at (and Determination shall be construed accordingly):

 

(a)

where the Leakage Amount Claimed or Warranty Amount Claimed (as applicable) is agreed between the Investor, the Individual Sellers’ Representative and the Purchaser, the date of such agreement; and

 

(b)

where there is no agreement as set out in clause 10.5(a), on the Business Day following the date on which the Leakage Claim (including the Leakage Amount Claimed) or Warranty Claim (including the Warranty Amount Claimed) (as applicable) has been determined by a Court of competent jurisdiction against which no appeal has been lodged or is capable of being lodged within the statutory time limit.

 

10.6	Save in the circumstances where clause 10.7 below applies:

 

(a)

on the Leakage Release Date, the aggregate of £25 million less any prior amounts released to the Purchaser pursuant to clauses 10.3 or 10.4 shall be paid to the Sellers’ Lawyers Client Account (and, for the avoidance of doubt, no such payment shall be made where the prior amounts released exceed £25 million) to then be distributed on a pro rata basis between all sellers of the Ordinary Shares and the Remaining Shares; and

 

(b)

on the Warranty Release Date, all of the funds (if any) then standing to the credit of the Escrow Account shall be paid to the Sellers’ Lawyers Client Account to then be distributed on a pro rata basis between all sellers of the Ordinary Shares and the Remaining Shares,

 

and the Purchaser, the Investor and the Individual Sellers’ Representative shall, in each case, issue written instructions to the Escrow Agent to make such payment.

 

10.7

If written notice of a Leakage Claim or a Warranty Claim is given in accordance with this Deed before the expiration of the Leakage Escrow Period or the Warranty Escrow Period (as applicable) but such Leakage Claim or Warranty Claim (as applicable) is not Determined prior to the Leakage Release Date or the Warranty Release Date (as applicable), then provided that prior to the expiration of the Leakage Escrow Period or the Warranty Escrow Period (as applicable) the Purchaser shall have delivered to the Escrow Agent (with a copy to the Investor and the Individual Sellers’ Representative) a written opinion of a Queen’s Counsel appointed in accordance with clause 10.8, to the effect that the Leakage Claim or Warranty Claim

 

(as applicable) has a reasonable prospect of success and the Leakage Amount Claimed or Warranty Amount Claimed (as applicable) is a reasonable one, such Leakage Amount Claimed or Warranty Amount Claimed (as applicable) shall be retained in the Escrow Account and on the Leakage Release Date or Warranty Release Date (as applicable), the Escrow Amount shall be released on the following basis:

 

(a)

in relation to the Leakage Release Date, the aggregate of £25 million less:

 

(i)

any amounts retained by the Escrow Agent in respect of any Leakage Claims or Warranty Claims (as applicable) in accordance with clause 10.10; and

 

(ii)

all Leakage Amounts Claimed or Warranty Amounts Claimed,

 

shall be paid on the Leakage Release Date to the Sellers’ Lawyers Client Account (and, for the avoidance of doubt, no such payment shall be made where the amounts in (i) and (ii) exceed £25 million) to then be distributed on a pro rata basis between all sellers of the Ordinary Shares and the Remaining Shares; and

 

(b)

in relation to the Warranty Release Date, all of the funds (if any) then standing to the credit of the Escrow Account less:

 

(i)

any amounts retained by the Escrow Agent in respect of any Leakage Claims or Warranty Claims (as applicable) in accordance with clause 10.10; and

 

(ii)

all Leakage Amounts Claimed or Warranty Amounts Claimed,

 

shall be paid to the Sellers’ Lawyers Client Account to then be distributed on a pro rata basis between all sellers of the Ordinary Shares and the Remaining Shares.

 

10.8

The Queen’s Counsel referred to in clause 10.7 shall be such person as is agreed between the Investor and the Purchaser (each acting reasonably) or, failing agreement within three Business Days of a request for agreement being received by the Investor from the Purchaser, such person as shall be nominated by the President for the time being of the Bar Council.

 

10.9

The Purchaser shall have 90 days from the date on which it provides notice to the Investor and the Individual Sellers’ Representative of a Leakage Claim or a Warranty Claim (as applicable) in which to commence proceedings in respect of such Leakage Claim or Warranty Claim (as applicable), failing which (subject to any obligation to retain other Leakage Amounts Claimed and other Warranty Amounts Claimed in the Escrow Account pursuant to this clause 10) the amount retained in respect of that Leakage Claim or Warranty Claim (as applicable) under clause 10.7 shall be paid to the Sellers’ Lawyers Client Account to then be distributed on a pro rata basis between all sellers of the Ordinary Shares and the Remaining Shares.

 

10.10

The Escrow Agent shall hold the amounts retained in accordance with clause 10.7 until the earlier of:

 

 

 

(a)

the expiration of the time period for commencing proceedings in respect of a Leakage Claim or Warranty Claim (as applicable) in accordance with clause 10.9; and

 

(b)

the date on which such Leakage Claim(s) or Warranty Claim(s) (as applicable) are Determined.

 

On Determination of any such Leakage Claim(s) or Warranty Claim(s) (as applicable) the Escrow Agent shall pay to the Purchaser from the Escrow Account an amount equal to the Leakage Amount Claimed or Warranty Amount Claimed (as applicable and so Determined) in satisfaction of the relevant liability or, if the aggregate amount in the Escrow Account is less than the amount of the liability, the aggregate amount then standing to the credit of the Escrow Account towards satisfaction (or in the case of a Claim, in full) of the relevant liability.  Once all such Leakage Claims or Warranty Claims (as applicable) have been Determined and been the subject of payments under this clause 10.10, the Escrow Agent shall, in respect of the Leakage Release Date or Warranty Release Date (as applicable), pay the remaining balance of all monies on the Escrow Account to the Sellers’ Lawyers Client Account to then be distributed on a pro rata basis between all sellers of the Ordinary Shares and the Remaining Shares.

 

10.11

Interest accruing from time to time on the balance of funds standing to the credit of the Escrow Account shall be added to the funds standing to the credit of the Escrow Account and shall be for the benefit of the Sellers to receive the balance of any interest accrued on the funds then standing to the credit of the Escrow Account on the Leakage Release Date or Warranty Release Date (as applicable).

 

10.12

The order in which Leakage Claims or Warranty Claims will be satisfied from the Escrow Amount shall be the order in which such Leakage Claim or Warranty Claim (as applicable) is Determined.

 

10.13

The Sellers and the Purchaser acknowledge that the Escrow Agent may withdraw from the Escrow Account an amount of tax on the interest earned in respect of money held in the Escrow Account for which it is or may become liable, and any bank or other charges properly charged to the Escrow Account, provided that any bank or other charges, costs or expenses arising on, or in relation to, the Escrow Account shall be charged to, and settled between, the Purchaser (on the one hand) and the Sellers (on the other hand) equally.

 

10.14

The Investor, the Individual Sellers’ Representative and the Purchaser shall, on or prior to Closing, enter into the Escrow Agreement (reflecting the terms set out in this clause 10) with the Escrow Agent, with the Escrow Agreement to incorporate such other terms required as are reasonably required by the Escrow Agent and reasonably acceptable to the Investor, the Individual Sellers’ Representative and the Purchaser.

 

 

 

11.1	Each of the Purchaser and the Parent Company warrants severally (but not jointly or jointly and severally) to each of the Sellers that as at the date of this Deed and immediately prior to Closing:

 

 

(a)

it is validly incorporated, in existence and duly registered under the laws of its jurisdiction and has full power to conduct its business as conducted at the date of this Deed;

 

(b)

it has obtained all corporate authorisations and (other than to the extent relevant to the Condition) all other governmental, statutory, regulatory or other consents, licences and authorisations required to empower it to enter into and perform its obligations under this Deed where failure to obtain them would materially and adversely affect its ability to enter into and perform its obligations under this Deed;

 

(c)

entry into and performance of this Deed and/or any Transaction Documents to which it is a party will not:

 

(i)

breach any provision of its memorandum and articles of association, by-laws or equivalent constitutional documents; or

 

(ii)

(subject, where applicable, to fulfilment of the Condition) result in a breach of any laws or regulations in its jurisdiction of incorporation or of any order, decree or judgment of any court or any governmental or regulatory authority, where any such breach would adversely affect to a material extent it ability to enter into or perform its obligations under this Deed and/or any Transaction Document to which it is a party;

 

(d)

it is not insolvent or bankrupt under the laws of its jurisdiction of incorporation, unable to pay its debts as they fall due or has proposed or is liable to any arrangement (whether by court process or otherwise) under which its creditors (or any group of them) would receive less than the amounts due to them.  There are no proceedings in relation to any compromise or arrangement with creditors or any winding up, bankruptcy or insolvency proceedings concerning the Purchaser or the Parent Company and no events have occurred which would justify such proceedings.  No steps have been taken to enforce any security over any assets of the Purchaser or the Parent Company and no event has occurred to give the right to enforce such security;

 

(e)

so far as it is aware, neither it nor any member of the Purchaser Group is subject to any order, judgment, direction, investigation or other proceedings by any Governmental Entity which will, or are likely to, prevent or delay any of the fulfilment of the Condition;

 

(f)

in the case of the Purchaser only, it has available cash or available loan facilities under the Purchaser Financing Agreements which will at Closing provide in immediately available funds the necessary cash resources to pay the Price and meet its other obligations under this Deed.  The Purchaser Financing Agreements involve no material pre-conditions and the Purchaser will be able to satisfy all conditions of drawdown to such agreements at or prior to Closing.  The Purchaser has made available to the Investor accurate and complete copies of the Purchaser Financing Agreements;

 

 

 

(g)

in the case of the Purchaser only, there are no contracts, agreements, arrangements or other understandings (whether reduced to writing or not) between the Purchaser or any of its Representatives on the one hand and providers of debt or equity finance (or any of their Representatives) on the other hand which relate to or are required for the payment of the Price and which have not been disclosed to the Investor;

 

(h)

in the case of the Purchaser only, no default or drawstop event under any of the Purchaser Financing Agreements has occurred nor is the Purchaser aware of any event or circumstance which could reasonably be expected to constitute such a default or drawstop event which would enable the relevant lenders to refuse to provide funds under the Purchaser Financing Agreements;

 

(i)

in the case of the Purchaser only, as at the date of this Deed, it is not aware of any facts or circumstances which could reasonably be expected to result in a Claim being made against any Seller in connection with the Proposed Transaction;

 

(j)

all of the Major Representations (as defined in the Purchaser Financing Agreements) are true and correct in all material respects; and

 

(k)

this Deed and the Transaction Documents to which it is party, once executed, will constitute legal, valid and binding obligations of the Purchaser in accordance with their respective terms.

 

11.2	The Purchaser undertakes to the Sellers that it will:

 

(a)

not and will procure that none of its Affiliates will, in a way which would, or might reasonably be likely to, prejudice its ability to:

 

(i)

pay the amounts payable by it to the Sellers and the Escrow Account pursuant to clause 2;

 

(ii)

pay the amounts payable to the Remaining Shareholders pursuant to the Secondary SPA and/or the Compulsory Purchase Notices;

 

(iii)

procure the redemption of the Ex-Employee Loan Notes  pursuant to clause 3; or

 

(iv)

procure the prepayment and cancellation of the Facilities Agreement in accordance with paragraph 1(e) of Part B of Schedule 4,

 

amend or agree to amend any material terms of the Purchaser Financing Agreements to which it is a party or waive or agree to waive any material rights or obligations of the Purchaser or any other member of the Purchaser Group under the Purchaser Financing Agreements;

 

(b)

take all such steps as are necessary (including the satisfaction of all covenants and conditions precedent and compliance with all obligations applicable to it) to ensure that it is able to draw down an amount required to satisfy its payment obligations pursuant to the Transaction Documents under the Purchaser Financing Agreements;

 

 

 

(c)

enforce its rights under the Purchaser Financing Agreements in the event of failure to fund thereunder by the Financing Sources that prevents, impedes or delays Closing;

 

(d)

provide the Lead Arrangers (as defined in the Purchaser Financing Agreements) with the pro forma financial statements required to be delivered to the Lead Arrangers in accordance with paragraph B of Exhibit B to the Commitment Letter, which shall meet the requirements of Regulation S-X under the Securities Act of 1933 and all other accounting rules and regulations of the SEC promulgated thereunder applicable to a registration statement under that Act on Form S-3 and

 

(e)

comply in all material respects (other than in respect of the lien, fundamental change and indebtedness covenants which shall be in all respects) with all the Purchaser Group obligations in respect of the amended and restated credit agreement, dated as October 25, 2011, among the Parent Company, the other co-borrower named therein, the guarantors party thereto, Bank of America, N.A., as administrative agent and the lenders from time to time party thereto, which evidences the Borrower’s $990 million unsecured revolving credit facility.

 

 

 

 

Other than as set out in clause 7.3, the Purchaser shall not be entitled to rescind or terminate this Deed in any circumstances whatsoever (whether before or after Closing).  This shall not exclude any liability for (or remedy in respect of) fraudulent misrepresentation.

 

 

 

Tax records

 

13.1

The Purchaser acknowledges that the Sellers may need access, from time to time, after Closing to certain accounting and tax records and information held by the Target Companies to the extent such records and information pertain to events occurring prior to Closing and agrees that the Purchaser shall, and shall cause the Target Companies to:

 

(a)

properly retain and maintain such records until the date that is 7 years after Closing; and

 

(b)

subject to any bona fide need to preserve any applicable privilege, upon being given reasonable notice by the Sellers, allow the Sellers, and their respective officers, employees, agents, auditors and representatives, to inspect, review and make copies of such records which are reasonably required by that Seller for the purpose of dealing with its tax and accounting affairs, during normal business hours and at the expense of that Seller, until the date that is 7 years after Closing.

 

Protection of Directors

 

13.2	Following Closing, the Purchaser shall ensure that any indemnity and/or immunity provisions contained in the memorandum and articles of association (or similar

 

constitutional documents) of each Target Company of which an Individual Seller or Investor Director was an officer or director prior to Closing are not amended, repealed or modified in any manner that would affect adversely the rights of any Individual Seller or Investor Director.

 

13.3

For 7 years from Closing, the Purchaser shall, at the cost of the Investor, ensure that each Target Company maintains in force such “run-off” directors’ and officers’ liability insurance policies as will enable each relevant Individual Seller or Investor Director to make claims arising out of any matter, cause or event occurring on or before Closing (a Pre-Closing Event ) under those policies on terms and conditions that are, in every respect, no less advantageous to the relevant Individual Seller or Investor Director than the directors’ and officers’ liability insurance policies maintained by the Target Companies as at the date of this Deed.

 

13.4

The Purchaser shall (and shall ensure that each Target Company shall), from and after Closing and to the fullest extent permitted in accordance with applicable laws, waive, release and discharge each relevant Individual Seller or Investor Director from any and all claims, demands, proceedings, causes of action, orders, obligations and liabilities arising out of any Pre-Closing Event which each Target Company has or may at any time have had against any Individual Seller or Investor Director, save in the case of fraud by such Individual Seller or Investor Director.  The Purchaser shall ensure that each Target Company shall not, directly or indirectly, assert any claim or demand, or commence, institute or cause to be commenced, any proceedings of any kind relating to any Pre-Closing Event against any Individual Seller or Investor Director, save in the case of fraud of such Individual Seller or Investor Director.

 

13.5	The provisions of clauses 13.2 to 13.3 are in addition to, and not in substitution for, any other rights to indemnification or contribution that any Individual Seller or Investor Director may have at law, by contract or otherwise.

 

Changes of Name

 

13.6

The Purchaser shall procure that, as soon as reasonably practicable after Closing and in any event within 20 Business Days after the Closing Date, the name of any Target Company that consists of or includes the word “H&F”, “Hellman & Friedman”, “CCP” or “Charterhouse” is changed to a name which does not include that word or any name which, in the reasonable opinion of the Investor, is substantially the same or confusingly similar (and not then subsequently changed back).

 

 

 

14.1	Each of the Relevant Employees severally (but not jointly or jointly and severally) undertakes to and covenants with the Purchaser that:

 

(a)

he will not, at any time during the period of 24 months immediately following the Closing Date, save in his capacity as an employee, director and/or shareholder of any member of the Purchaser Group, directly or indirectly, be interested or concerned (whether as shareholder, director, employee, sub-contractor, partner, consultant, proprietor, agent or otherwise) in any energy research or consulting business carried on or about to be carried on by any person, firm or company, which business is in competition with the business of the Target Companies as carried on at the Closing Date

 

(provided always for the avoidance of doubt that the terms of this clause 14.1 shall not prevent a Relevant Employee from being interested or concerned (whether as shareholder, director, employee, sub-contractor, partner, consultant, proprietor, agent or otherwise) with any industry client of a Target Company);

 

(b)

he will not, at any time during the period of 24 months immediately following the Closing Date, directly or indirectly, entice, solicit or endeavour to entice or solicit away from any Target Company, or hire, any person who is (or was in during the 6 month period prior to the Closing Date) a Management Employee of a Target Company as at the Closing Date;

 

(c)

he will not, at any time during the period of 24 months immediately following the Closing Date, in competition with or in a manner materially adverse to the Target Companies canvas or solicit or endeavour to canvas or solicit or entice or endeavour to entice away from any Target Company the custom or business of any person, firm or company who is or is about to be, or who has been at any time during the preceding period of six months, a customer of any Target Company; and

 

(d)

he will not, at any time after the Closing Date in relation to any trade or business (other than the trade or business of the Purchaser Group) use or (insofar as he can reasonably do so) allow to be used (other than by the Purchaser Group) any trade or corporate name used by any Target Company as at the Closing Date or any other name intended or likely to be confused therewith.

 

14.2	Nothing in this clause 14 prevents any Relevant Employee from:

 

(a)

being interested in any units of any authorised unit trust, or in any class of securities in any company, provided that such units or securities are traded on a recognised investment exchange (as such term is defined in the Financial Services and Markets Act 2000) or AIM and such interest is of a financial or investment nature only and is not more than 5% of the voting rights of such trust or company; or

 

(b)

bona fide general advertising for directors, officers, employees or consultants, and hiring or engaging as a result of unsolicited and unencouraged responses thereto; or

 

(c)

doing or omitting to do any act, matter or thing with the prior written consent of the Purchaser.

 

14.3	Each of the covenants contained in each of clauses 14.1 and 14.2 shall be, and is, a separate covenant by each of the Relevant Employees and shall be enforceable separately and independently of any one or more of the other covenants contained in clauses 14.1 and 14.2 by the Purchaser.

 

14.4

While the restrictions aforesaid are considered by each of the Relevant Employees and by the Purchaser to be reasonable in all the circumstances, it is recognised that restrictions of the nature in question may fail for unforeseen technical reasons and accordingly it is hereby declared and agreed that if any of such restrictions shall be adjudged to be void as going beyond what is reasonable in all the circumstances for

 

the protection of the interests of the Purchaser, but would be valid if part of the wording thereof were deleted, the said restrictions shall apply with such deletion as may be necessary to make them valid and effective.

 

 

 

15.1

In consideration of the Sellers entering into this Deed, the Parent Company unconditionally and irrevocably guarantees to the Sellers and to each of their Affiliates as a primary and continuing obligation, as principal obligor and not merely as surety, that the Purchaser will comply properly and punctually with its obligations under this Deed and each Transaction Document.

 

15.2	The Parent Company’s liability under clause 15.1 shall not be discharged or impaired by:

 

(a)

any amendment, variation or assignment of this Deed or any Transaction Document or any waiver of its or their terms;

 

(b)

any release of, or granting of time or other indulgence to, the Purchaser or any third party;

 

(c)

any winding up, dissolution, reconstruction, legal limitation, incapacity or lack of corporate power or authority or other circumstances affecting the Purchaser (or any act taken by the Sellers in relation to any such event); or

 

(d)

any other act, event, neglect or omission (whether or not known to the Purchaser, the Sellers or the Parent Company) which would or might (but for this clause) operate to impair or discharge the Parent Company’s liability or afford the Parent Company or the Purchaser any legal or equitable defence;

 

15.3

In consideration of the Seller entering into this Deed, as a separate, additional continuing and primary obligation, the Parent Company, undertakes, as principal obligor and not merely as surety, to indemnify the Sellers against any costs or losses suffered or incurred by any of them as a result of the Purchaser’s failure to comply with its obligations under this Deed or any Transaction Document.

 

 

 

16.1

With effect on and from Closing, each Seller irrevocably and unconditionally appoints the Purchaser for a period of three months (or until the Purchaser or its nominee is registered as holder of the Shares concerned, if earlier) as its or his attorney with full powers of substitution in its or his name and for it or him and on its or his behalf (and to the complete exclusion of any rights that the Seller may have in such regard) lawfully to exercise all voting and other rights and receive all the benefits and entitlements which may now or at any time in the future attach to the Shares set out opposite its or his name in Schedule 1 and to transfer and deal with such Shares, rights, benefits and entitlements and execute such documents under hand or as a deed and do such acts and things as the Purchaser shall from time to time think fit in all respects as if the Purchaser were the absolute legal and beneficial owner of the Shares.

 

 

16.2	Each Seller hereby undertakes during the period referred to in clause 16.1 above not to exercise any of the rights, powers and privileges attaching to its Shares or otherwise capable of being exercised by the registered holder of its Shares without the consent of the Purchaser.

 

16.3	Each Seller  hereby undertakes that during the period referred to in clause 16.1 above it shall:

 

(a)

hold its Shares upon trust for the Purchaser as beneficial owner;

 

(b)

forthwith account to the Purchaser for all dividends, interest, bonuses, distributions or other sums whatsoever paid to that Seller in respect of its Shares (excluding for the avoidance of doubt amounts payable to that Seller under this Deed and/or any Transaction Document); and

 

(c)

deliver to the Purchaser any notice, letter or other document of any nature whatsoever relating to its Shares forthwith upon receipt of the same.

 

16.4	Each Seller hereby ratifies and confirms and agrees to ratify and confirm whatever the Purchaser and each of its substitutes does in exercise of the powers and/or authorities conferred by this clause 16.

 

16.5	The powers of attorney granted in this clause 16 are given by way of security for the due performance by that Seller of its or his obligations under this Deed.

 

16.6	The powers of attorney granted in this clause 16 shall not permit the Purchaser to incur any cost or liability on behalf of any Seller nor to take any steps to re-register the Company as an unlimited company.

 

 

 

17.1

Each of the Individual Sellers hereby irrevocably appoints the Individual Sellers’ Representative (having full power and authority to act alone) as the representative of such Individual Seller to act on his or her behalf for all purposes under this Deed and the Transaction Documents including for the purposes of:

 

(a)

delivering payment instructions to the Purchaser in connection with the payment of the Price;

 

(b)

accepting notices on behalf of such Individual Seller in accordance with clause 24;

 

(c)

taking any and all actions that may be necessary or desirable, as determined by the Individual Sellers’ Representative in his sole discretion, in connection with the payment of the costs and expenses incurred with respect to the Proposed Transaction;

 

(d)

granting any consent or approval on behalf of such Individual Seller under this Deed; and

 

(e)

generally taking any and all other actions and doing any and all other things provided in or contemplated by this Deed to be performed by such Individual Seller or the Individual Sellers’ Representative on behalf of such Individual Seller.

 

 

 

17.2

Each Individual Seller hereby irrevocably (by way of security for the performance of its obligations under this Deed) appoints the Individual Sellers’ Representative as its attorney with full authority on its behalf and in the Individual Seller’s name or otherwise to do all acts and to execute and deliver such documents or deeds as a required by law or as may, in the reasonable opinion of the Individual Sellers’ Representative, be required to give effect to the matters described in clause 17.1.

 

17.3

The Purchaser and each Individual Seller acknowledge that in exercising the powers and authorities conferred by this clause 17 and/or the Transaction Documents upon the Individual Sellers’ Representative, the Individual Sellers’ Representative shall not be acting, or be construed as acting, as the agent or trustee on behalf of any Individual Seller, and each Individual Seller and the Purchaser agrees that the Individual Sellers’ Representative shall have no liability whatsoever to the Purchaser or any Individual Seller in relation to the exercise of those powers and authorities, save to an Individual Seller in the case of fraud or bad faith.

 

17.4	Notwithstanding clause 17.3, the Purchaser shall be entitled to rely on the exercise of the powers and authorities conferred on the Individual Sellers’ Representative as if the relevant Individual Seller is exercising such powers and authorities.

 

 

 

18.1	Any payment to be made pursuant to this Deed by the Purchaser (or any member of the Purchaser Group) to any Seller shall be made to the Investor’s Bank Account or the Sellers’ Lawyers Client Account (as applicable).

 

18.2	Any payment to be made pursuant to this Deed by the Sellers shall be made to the Purchaser’s Bank Account.

 

18.3	Payments under clauses 18.1 and 18.2 shall be in immediately available funds by electronic transfer on the due date for payment.  Receipt of the amount due shall be an effective discharge of the relevant payment obligation.

 

18.4	If any sum due for payment in accordance with this Deed is not paid on the due date for payment, the person in default shall pay Default Interest on that sum from but excluding the due date to and including the date of actual payment calculated on a daily basis.

 

 

 

19.1

Other than in respect of the Transaction Announcement, the Investor Presentation and the Current Report on Form 8-K, no party (nor any of their respective Affiliates) to this Deed shall, subject to clause 19.2, make any announcement or issue any circular in connection with the existence or subject matter of this Deed (or any other Transaction Document) without the prior written approval of the Investor, the Individual Sellers’ Representative and the Purchaser except that the Investor shall be entitled to refer to the existence and/or subject matter of this Deed (or any other Transaction Document):

 

(a)

when providing information or advice to any investors in funds managed or advised by Hellman & Friedman LLC, Charterhouse Capital Partners LLP or their Affiliates; and

 

 

(b)

in marketing literature issued or circulated by or on behalf of Hellman & Friedman LLC, Charterhouse Capital Partners LLP or their Affiliates,

 

and the Purchaser, for and on behalf of the Target Companies, expressly authorises the use of any logos, trade-marks or trade-names of the Target Companies in such circumstances.

 

19.2	The restriction in clause 19.1 shall not apply to the extent that an announcement, circular or regulatory filing is:

 

(a)

required by law, by any stock exchange or any regulatory or other supervisory body or authority of competent jurisdiction.  If this exception applies, the party making the announcement or regulatory filing or issuing the circular shall (to the extent permitted by applicable law) use its reasonable efforts to consult in advance as to its form, content and timing with the Investor, the Individual Sellers’ Representative and the Purchaser; or

 

(b)

made following the Unconditional Date, in connection with the Purchaser Financing Arrangements and  in accordance with customary market practice.

 

19.3

The Investor, the Individual Sellers’ Representative and the Purchaser will consult with each other concerning the means by which the Target Companies’ respective employees, customers and suppliers, and others having dealings with the Target Companies, will be informed of the existence of, and the transactions contemplated by, this Deed.

 

 

 

20.1	For the purposes of this clause 20:

 

(a)

Confidential Information means:

 

(i)

(in relation to the obligations of the Purchaser) any information received or held by the Purchaser (or any of its Representatives) relating to the Sellers or, prior to Closing, any of the Target Companies; or

 

(ii)

(in relation to the obligations of the Sellers) any information received or held by the Sellers (or any of their Representatives) relating to the Purchaser Group or, following Closing, any of the Target Companies; and

 

(iii)

information relating to the provisions of, and negotiations leading to, this Deed and the other Transaction Documents,

 

and includes written information and information transferred or obtained orally, visually, electronically or by any other means; and

 

(b)

Representatives means, in relation to a party, its respective Affiliates and the directors, officers, employees, agents, advisers, accountants and consultants of that party and/or of its respective Affiliates.

 

 

 

20.2	Each of the Sellers and the Purchaser shall (and shall ensure that each of its Representatives shall) maintain Confidential Information in confidence and not disclose Confidential Information to any person except:

 

(a)

as this clause 20 permits; or

 

(b)

with the prior written approval of the Investor, the Individual Sellers’ Representative and the Purchaser.

 

20.3	Clause 20.2 shall not prevent disclosure by a party or its Representatives where:

 

(a)

the information disclosed is included in the Transaction Announcement, Investor Presentation or Current Report on Form 8-K, or following the Unconditional Date is disclosed in connection with the Purchaser Financing Arrangements;

 

(b)

disclosure is required by law or by any stock exchange or any regulatory, governmental or antitrust body (including any Tax Authority) having applicable jurisdiction or disclosure is reasonably necessary for the proper management of a party’s tax affairs (provided that, if permitted by law, the disclosing party shall first inform the Purchaser (in the case of disclosure by a Seller) or the Investor and the Individual Sellers’ Representative (in the case of disclosure by the Purchaser) of its intention to disclose such information and take into account the reasonable comments of the other party or parties (as applicable));

 

(c)

disclosure is of Confidential Information which was lawfully in the possession of that party or any of its Representatives (in either case as evidenced by written records) without any obligation of secrecy prior to its being received or held;

 

(d)

disclosure is of Confidential Information which has previously become publicly available other than through that party’s fault (or that of its Representatives);

 

(e)

disclosure is required for the purpose of any arbitral or judicial proceedings arising out of this Deed (or any other Transaction Document);

 

(f)

such disclosure is made on a confidential basis to lending banks or other funding parties or prospective funding (whether debt or equity) parties of the Purchaser; and/or

 

(g)

in the case of the Investor only, such disclosure is made to any other direct or indirect investors (including those persons that are likely to become a direct or indirect investor) in funds managed and advised by the Hellman & Friedman LLC, Charterhouse Capital Partners LLP or any of their Affiliates, together with their directors, officers, advisors or agents provided that such information is disclosed on a confidential basis.

 

20.4

Each of the Sellers and the Purchaser undertakes that it (and its Affiliates) shall only disclose Confidential Information to Representatives if it is reasonably required for purposes connected with this Deed and only if the Representatives are informed of the confidential nature of the Confidential Information.

 

 

 

20.5	If this Deed terminates, the Purchaser shall as soon as practicable on request by the Investor:

 

(a)

return to the Investor (or as it may direct) all written documents and other materials relating to the Sellers, any Target Company or this Deed (including any Confidential Information) which the Sellers (or their Representatives) have provided to the Purchaser (or its Representatives) without keeping any copies thereof;

 

(b)

destroy all information or other documents derived from such Confidential Information; and

 

(c)

so far as it is practicable to do so, expunge such Confidential Information from any computer, word processor or other device.

 

 

 

21.1

Except as provided in this clause 21 or unless the Investor, the Individual Sellers’ Representative and the Purchaser specifically agree in writing, no person shall assign, transfer, charge or otherwise deal with all or any of its rights under this Deed nor grant, declare, create or dispose of any right or interest in it.  Any purported assignment in contravention of this clause 21 shall be void.

 

21.2	The Purchaser may assign its rights (by way of security only), charge or otherwise create security in or over the whole or any part of its rights under this Deed to:

 

(a)

any bank(s) and/or financial institution(s) lending money or making other banking facilities available to the Purchaser (or any member of the Purchaser Group) for the acquisition of the Shares and the Loan Notes;

 

(b)

any counterparty to a derivative transaction entered into by the Purchaser or any of its Affiliates; and/or

 

(c)

any facility or security agent, trustee, arranger of finance, receiver or other personal fulfilling a similar or related role,

 

but so that, notwithstanding any such assignment in security, the Sellers may unless they receive written notice of enforcement of the relevant security interest, deal with the Purchaser in connection with all matters arising under this Deed.

 

21.3	If an assignment is made in accordance with this clause 21, the liabilities of the parties under this Deed shall be no greater than such liabilities would have been if the assignment had not occurred.

 

 

 

22.1	Each of the parties shall, for a period of 15 months from the Closing Date, execute such further documents as may be required by law or be necessary to implement and give effect to this Deed.

 

22.2	Each of the parties shall procure that its Affiliates comply with all obligations under this Deed which are expressed to apply to any such Affiliates.

 

 

 

23.1	Subject to clause 23.2 and except as otherwise provided in this Deed (or any other Transaction Document), the parties shall each be responsible for their own Costs, charges and other expenses (including those of its Affiliates) incurred in connection with the Proposed Transaction.

 

23.2

The Purchaser or its Affiliates shall bear all stamp duty or other similar documentary transfer or transaction duties, and all stamp duty reserve tax and any other similar transfer taxes including in each case any related interest or penalties arising as a result of the purchase of the Shares or the Loan Notes pursuant to this Deed, the purchase of the Remaining Shares or the Remaining Loan Notes pursuant to the Secondary SPA or the redemption of the Ex-Employee Loan Notes.

 

 

 

24.1

Any notice in connection with this Deed shall be in writing in English and delivered by hand, fax, registered post or courier using an internationally recognised courier company.  A notice shall be effective upon receipt and shall be deemed to have been received (i) at the time of delivery, if delivered by hand, registered post or courier or (ii) at the time of transmission if delivered by fax provided that in either case, where delivery occurs outside Working Hours, notice shall be deemed to have been received at the start of Working Hours on the next following Business Day.

 

24.2	The addresses and fax numbers of the parties for the purpose of clause 24.1 are:

 

 

 

 

 

25.1	Any sum payable by the Purchaser to any Seller, or by any Seller to the Purchaser, under or pursuant to this Deed is exclusive of any applicable VAT. If any VAT is or becomes chargeable on any supply made by any party under or pursuant to this Deed,

 

the party receiving the supply shall, subject to the receipt of a valid VAT invoice, pay to the party making the supply (in addition to, and at the same time as, any other consideration for that supply) an amount equal to such VAT.

 

25.2

If any deduction or withholding is required by law from any payment made, on the one hand, by the Purchaser or the Parent Company to any Seller in respect of a Purchaser Obligation (excluding, for the avoidance of doubt, any payment of or in respect of the Price) or, on the other hand, by any Seller to the Purchaser in respect of a Seller Obligation, (excluding, in each case, any payment of interest) then the party making the payment shall pay to the payee such additional amount as will, after such deduction or withholding has been made, leave the payee with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.

 

25.3

If any sum paid, on the one hand, by the Purchaser or the Parent Company to any Seller in respect of a Purchaser Obligation or, on the other hand, by any Seller to the Purchaser in respect of a Seller Obligation, is subject to tax in the hands of the recipient (including where any Relief covers such tax), then the party making the payment shall pay such additional amount as shall ensure that the aggregate amount paid less the tax payable in respect of such amount (or which would be payable but for such Relief) shall be the amount that the party would have paid if the payment had not been subject to tax.

 

25.4

To the extent that any deduction, withholding or Tax in respect of which an additional amount has been paid under clause 25.2 or 25.3 above results in the payee obtaining a Relief, the payee shall pay to the payer, within ten Business Days of obtaining the benefit of the Relief, an amount equal to the lesser of the value of the Relief obtained and the additional sum paid under clause 25.2 or 25.3.

 

25.5	Clauses 25.2 and 25.3 above shall not apply to the extent that the deduction, withholding or Tax would not have arisen but for:

 

(a)

in the case of a payment made pursuant to a Seller Obligation, the payee not being tax resident in the UK, or having some connection with a territory outside the UK, and in the case of a payment pursuant to a Purchaser Obligation, the payee not being tax resident in Luxembourg, the UK, or Hungary, or having some connection with a territory outside Luxembourg, the UK, or Hungary; or

 

(b)

an assignment or novation of any of rights under this Deed pursuant to clause 21.

 

25.6	The Purchaser confirms that, as at the date of this Deed, it does not believe that it will be required by law to withhold or deduct any amount of or on account of tax from any payment of or in respect of the Price, and it does not intend to make any such withholding or deduction.

 

 

 

The Investor hereby agrees and confirms that:

 

 

 

(a)

the entry by it into this Deed constitutes its irrevocable consent to, and approval of, the Proposed Transaction; and

 

(b)

its consent to, and approval of, the Proposed Transaction (as evidenced by this clause 26),

 

shall be deemed to be its sufficient and valid consent to, and approval of, the Proposed Transaction for all purposes of the Articles and the Shareholders’ Agreement (notwithstanding any requirements or obligations contained in those documents regarding the formality, manner or delivery of such consent and approval).

 

 

 

If there is any conflict between the terms of this Deed and any other agreement, this Deed shall prevail (as between the parties to this Deed and as between any Affiliates of the Sellers and Purchaser) unless:

 

(a)

such other agreement expressly states that it overrides this Deed in the relevant respect; and

 

(b)

the Sellers and the Purchaser are either also parties to that other agreement or otherwise expressly the Sellers and the Purchaser agree in writing that such other agreement shall override this Deed in that respect.

 

 

 

This Deed and the other Transaction Documents together set out the whole agreement between the parties in respect of the sale and purchase of the Shares and the Loan Notes and supersede any prior agreement (whether oral or written) relating to the Proposed Transaction.  It is agreed that:

 

(a)

no party shall have any claim or remedy in respect of any statement, representation, warranty or undertaking made by or on behalf of the other party (or any of its Connected Persons) in relation to the Proposed Transaction which is not expressly set out in this Deed or any other Transaction Document;

 

(b)

any terms or conditions implied by law in any jurisdiction in relation to the Proposed Transaction are excluded to the fullest extent permitted by law or, if incapable of exclusion, any right, or remedies in relation to them are irrevocably waived;

 

(c)

the only right or remedy of a party in relation to any provision of this Deed or any other Transaction Document shall be for breach of this Deed or the relevant Transaction Document; and

 

(d)

except for any liability in respect of a breach of this Deed or any other Transaction Document, no party (or any of its Connected Persons) shall owe any duty of care or have any liability in tort or otherwise to the other party (or its respective Connected Persons) in relation to the Proposed Transaction,

 

provided that this clause shall not exclude any liability for (or remedy in respect of) fraudulent misrepresentation.  Each party agrees to the terms of this clause 28 on its

 

own behalf and as agent for each of its Connected Persons.  For the purpose of this clause, Connected Persons means (in relation to a party) the officers, employees, agents and advisers of that party or any of its Affiliates.

 

 

 

The Purchaser waives and relinquishes any right of set off or counterclaim, deduction or retention which the Purchaser might otherwise have out of any payments which the Purchaser may be obliged to make (or procure to be made) to the Sellers pursuant to this Deed or otherwise.

 

 

 

Except as expressly provided in this Deed, no failure or delay by any party in exercising any right or remedy relating to this Deed or any of the Transaction Documents shall affect or operate as a waiver or variation of that right or remedy or preclude its exercise at any subsequent time.  No single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy.

 

 

 

This Deed may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of a counterpart of this Deed by e-mail attachment or telecopy shall be an effective mode of delivery.

 

 

 

No amendment of this Deed (or of any other Transaction Document) shall be valid unless it is in writing and duly executed by or on behalf of all of the parties to it and provided, further, that no amendment shall be made to this Deed that would adversely affect the rights of the Financing Sources as set out in this clause 32, clauses 34 or 36.5 without the consent of the Financing Sources.

 

 

 

Each of the provisions of this Deed and the other Transaction Documents is severable.  If any such provision is held to be or becomes invalid or unenforceable in any respect under the law of any jurisdiction, it shall have no effect in that respect and the parties shall use all reasonable efforts to replace it in that respect with a valid and enforceable substitute provision the effect of which is as close to its intended effect as possible.

 

 

 

34.1	The Connected Persons specified in clause 28 (Whole Agreement) shall have the right to enforce the relevant terms of that clause, the Financing Sources shall have the right to enforce the terms of clauses 32 and 36.5, the persons identified in clauses 8.4

 

and 8.5 shall have the right to enforce the terms of those clauses and the Investor Directors shall have the right to enforce the terms of clauses 13.2 and 13.3 by reason of the Contracts (Rights of Third Parties) Act 1999.  This right is subject to:

 

(a)

the rights of the parties to amend or vary this Deed without the consent of any Connected Person or the Investor Directors; and

 

(b)

the other terms and conditions of this Deed.

 

34.2	Except as provided in clause 34.1, a person who is not a party to this Deed shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

 

 

 

The parties hereto agree that irreparable damage would occur if any provision of this Deed were not performed in accordance with its terms and that the parties shall be entitled to enforce specifically the performance of the terms and provisions hereof in the English courts, in addition to any other remedy to which they are entitled at law or in equity.

 

 

 

36.1	This Deed and any non-contractual obligations arising out of or in connection with this Deed shall be governed by, and interpreted in accordance with, English law.

 

36.2

Except as expressly provided otherwise in this Deed, the English courts shall have exclusive jurisdiction in relation to all disputes (including claims for set-off and counterclaims) arising out of or in connection with this Deed including disputes arising out of or in connection with (i) the creation, validity, effect, interpretation performance or non-performance of, or the legal relationships established by, this Deed and (ii) any non-contractual obligations arising out of or in connection with this Deed.  For such purposes each party irrevocably submits to the jurisdiction of the English courts and waives any objection to the exercise of such jurisdiction.

 

36.3

The Parent Company shall at all times maintain an agent for service of process and any other documents in proceedings in England or any other proceedings in connection with this Deed and shall notify the Investor in writing of such agent for process of service within 5 Business Days of the date of this Deed.  Any claim form, judgment or other notice of legal process shall be sufficiently served on the Parent Company if delivered to such agent at its address for the time being.  The Parent Company irrevocably undertakes not to revoke the authority of this agent and if, for any reason, the Investor requests the Parent Company to do so it shall promptly appoint another such agent with an address in England and advise the Investor.  If, following such a request, the Parent Company fails to appoint another agent, the Investor shall be entitled to appoint one on behalf of the Parent Company at the Parent Company’s expense.

 

36.4

The Investor shall at all times maintain an agent for service of process and any other documents in proceedings in England or any other proceedings in connection with this Deed.  Such agent shall be Hellman & Friedman LLP currently of 30th Floor Millbank Tower, 21-24 Millbank, London SW1P 4QP, United Kingdom, and any claim form, judgment or other notice of legal process shall be sufficiently served on

 

the Investor if delivered to such agent at its address for the time being.  The Investor irrevocably undertakes not to revoke the authority of this agent and if, for any reason, the Purchaser requests the Investor to do so it shall promptly appoint another such agent with an address in England and advise the Purchaser.  If, following such a request, the Investor fails to appoint another agent, the Purchaser shall be entitled to appoint one on behalf of the Investor at the Investor’s expense.

 

36.5

The Sellers acknowledge that they have no direct relationship with any of the Financing Sources with respect to any of the transactions contemplated by this Deed and are not intended beneficiaries of any arrangements that the Purchaser may have with any Financing Sources. In no event shall any Seller have any recourse against or be entitled to seek or obtain any recovery, judgment, monetary damages or injunctive or other relief against any of the Financing Sources under any legal or equitable theory whatsoever (whether in contract, tort or otherwise), including for any alleged damage or loss relating to this Deed or the performance of or failure to consummate any transactions contemplated by it.

 

Schedule 2

Remaining Shares and Remaining Loan Notes

 

 

1.	The purpose of this Schedule 2 is to set out the basis on which the Purchaser shall:

 

(a)

acquire the Remaining Shares and the Remaining Loan Notes from the Remaining Shareholders; and

 

(b)

procure the redemption of the Ex-Employee Loan Notes.

 

2.	The Sellers shall, after the date of this Deed, procure that there is sent to each:

 

(a)

Remaining Shareholder, the Remaining Shareholder Letter and the Compulsory Purchase Notice within five Business Days after the date of this Deed; and

 

(b)

Ex-Employee Loan Note Holder, the Ex-Employee Redemption Notice within 5 Business Days of the commencement of the Marketing Period or on such other date as the Purchaser may nominate to the Investor and the Individual Sellers’ Representative in writing on not less than five Business Days’ notice.

 

3.	Thereafter, the Sellers shall use all reasonable endeavours to procure the receipt of binding authorities and/or powers of attorney in favour of the Key Managers from the Remaining Shareholders in relation to the execution by them of the Secondary SPA by the Unconditional Date.

 

4.

On the Closing Date, the Purchaser shall enter into the Secondary SPA with each of those Remaining Shareholders who have agreed to execute it (the Accepting Remaining Shareholders ) and the Secondary SPA shall be in respect of the sale and purchase of the Remaining Shares and Remaining Loan Notes held by those Accepting Remaining Shareholders.  The Key Managers agree that, at completion of the sale and purchase of Remaining Shares and Remaining Loan Notes pursuant to the Secondary SPA, they shall sign the Secondary SPA on behalf of those Accepting Remaining Shareholders who have duly authorised them to do so as attorneys.

 

5.

Completion of the sale and purchase of the Remaining Shares and Remaining Loan Notes pursuant to the Secondary SPA shall occur at Closing. The Purchaser undertakes to the Sellers that, at Closing, it will promptly pay all consideration due in accordance with the terms of the Secondary SPA (the consideration payable to each Accepting Remaining Shareholder under the Secondary SPA to be in cash in the amount set out opposite each Accepting Remaining Shareholder’s name in the Proceeds Spreadsheet as increased or decreased (as applicable) to reflect a revised amount calculated as follows:

 

(a)

a reduction of £16,809.23 per day on the amount for all the Remaining Shares in the Proceeds Spreadsheet from and excluding the Accounts Date to and including the Closing Date; and

 

(b)

an incremental amount accruing on the Employee Strip Loan Notes in accordance with the terms of the Employee Strip Loan Note Instrument (which, for the avoidance of doubt, accrues from day to day, on the basis of a 365 day year, at a rate of 12.5 per cent. per annum and capitalises on 2

 

August each year) until the Closing Date (provided that if the Closing Date is after 2 August 2015, the incremental amount accrued to such date from 2 August 2014 shall be capitalised and an incremental amount shall accrue on such capitalised amount in accordance with the terms of the Employee Strip Loan Note Instrument).

 

6.

In the event that the execution of the Secondary SPA does not result in the Purchaser acquiring all of the Remaining Shares and the Remaining Loan Notes, completion of the purchase of all Remaining Shares and Remaining Loan Notes held by Remaining Shareholders who are not Accepting Remaining Shareholders shall occur at Closing.  The Purchaser undertakes to the Sellers that, at Closing, it will pay to each such Remaining Shareholder in cash the amount set out opposite that seller’s name in the Proceeds Spreadsheet as increased or decreased (as applicable) to reflect a revised amount calculated as follows:

 

(a)

a reduction of £16,809.23 per day on the amount for all the Remaining Shares in the Proceeds Spreadsheet from and excluding the Accounts Date to and including the Closing Date; and

 

(b)

an incremental amount accruing on the Employee Strip Loan Notes in accordance with the terms of the Employee Strip Loan Note Instrument (which, for the avoidance of doubt, accrues from day to day, on the basis of a 365 day year, at a rate of 12.5 per cent. per annum and capitalises on 2 August each year) until the Closing Date (provided that if the Closing Date is after 2 August 2015, the incremental amount accrued to such date from 2 August 2014 shall be capitalised and an incremental amount shall accrue on such capitalised amount in accordance with the terms of the Employee Strip Loan Note Instrument).

 

7.

Completion of the sale and purchase of Remaining Shares and Remaining Loan Notes pursuant to the Compulsory Purchase Notice shall occur at Closing. The Purchaser undertakes to the Sellers that, at Closing, it will promptly pay all consideration due in respect of the Remaining Shares and Remaining Loan Notes in question in accordance with the terms of the Compulsory Purchase Notice and the Proceeds Spreadsheet.

 

8.	At Closing, the Purchaser shall procure that the Ex-Employee Loan Notes are redeemed by Nugent 2 in full by reference to the principal amount and accrued interest outstanding as at the Closing Date.

 

9.

Save for those obligations to which the Purchaser is subject in this Schedule 2, the Sellers shall take all such steps and execute and issue to the Remaining Shareholders and Ex-Employee Loan Note Holders all such documents as may be required in order to fully and effectively implement the terms of this Schedule 2 and to complete the sale and purchase of the Remaining Shares and the Remaining Loan Notes and the redemption of the Ex-Employee Loan Notes pursuant to this Schedule 2.

 

10.

Without prejudice to the Purchaser’s obligations under this Schedule 2, the Key Managers undertake to provide to the Purchaser, and (so far as they are able) to procure that each member of the Group shall provide to the Purchaser, such assistance as the Purchaser may reasonably request in relation to the implementation of the terms of this Schedule 2.

 

Schedule 3

Conduct of the Target Companies Pre Closing

 

The matters referred to in clause 6.1 and 6.2 are:

 

(a)	no Target Company declares or pays any dividend or other distribution (whether in cash, stock or in kind) or reduces its paid-up share capital;

 

(b)	no Target Company issues or agrees to issue or allots, redeems or repurchases any share capital or option to subscribe for or right relating to shares (except to another Target Company);

 

(c)	no Target Company adopts any change to its constitutional documents;

 

(d)	no Target Company adopts any changes to its accounting or financial reporting policies, other than as required by law or by generally accepted accounting or financial reporting practice (as consistently applied in the 12 months prior to the date of this Deed);

 

(e)

no transactions between any Target Company and a Seller (or any Affiliate) take place other than in the ordinary course of business and in a manner and on terms consistent with previous practice in the 12 months prior to the date of this Deed, in all cases pursuant to agreements entered into prior to the date of this Deed and Disclosed;

 

(f)	no Target Company amends or modifies any agreement or arrangement with any Seller or its Affiliates that is not on arm’s length terms and will not be terminated at Closing pursuant to this Deed;

 

(g)	no Target Company:

 

(i)

makes any changes in terms of employment, including pension fund commitments or otherwise increases the compensation payable, or increases the benefits provided, to any Employees or Directors such that the total staff costs of the Target Companies are increased by more than 4% when compared to the year ended on the Accounts Date or the remuneration of any one director or employee by more than £50,000 per annum;

 

(ii)

establishes, adopts, enters into or amends any Employee Plan;

 

(iii)

grants, issues or sells any security or instrument under any Employee Share Scheme or amends the terms of any security or instrument outstanding under any Employee Share Scheme;

 

(iv)

grants or enters into any agreement to provide any change in control, transaction or retention bonus or benefit, performance or incentive bonus, or severance or termination pay or benefits to any current or former Employee or Director; or

 

(v)

enters into any Collective Bargaining Agreement;

 

(h)	no Target Company hires, terminates or gives notice to terminate the employment of, or takes any action that could provide grounds for a constructive dismissal or “good reason” with regard to, any Senior Employee;

 

 

(i)

no Target Company enters into, amends or terminates any contract which is likely to involve expenditure in excess of £300,000 per annum or which cannot be performed within its terms within 3 years after the date on which it is entered into or which may result in any material change in the nature or scope of the operations of a Target Company, or waives, releases, transfers or assigns any material rights, claims or benefits from the Target Company under any agreement or commitment, other than entering into any engagement letter or fee letter in connection with the Proposed Transaction that had previously been entered into or had been proposed to be entered into by a Seller or any of its Affiliates prior to the date of this Deed provided that all fees payable pursuant to such letters are Transaction Costs;

 

(j)	no Target Company institutes or settles any litigation where that action is likely to result in a payment to or by a Target Company of £50,000 or more (except for collection in the ordinary course of trading debts none of which exceeds £50,000);

 

(k)	no Target Company forms any subsidiary or takes any action which would result in a change to the corporate organisational or financing organisational structure of the Target Companies as Disclosed;

 

(l)	no Target Company makes any change to its auditors, its bankers or the terms of the mandate given to such bankers in relation to its account(s), or changes its accounting reference date;

 

(m)

no Target Company enters into any Third Party Debt or borrows any monies under the Facilities Agreements other than by way of its existing overdraft facilities or under its existing revolving credit facilities. For the avoidance of doubt, this paragraph (m) shall not prohibit any Target Company from paying or accruing any interest (or making any payment of kind) that is contemplated by the Facilities Agreements;

 

(n)

no Target Company makes any loan (other than employment related normal loans and other similar arrangements with directors and employees in a manner consistent with the previous 12 month period) or gives any credit (other than normal trade credit) or acquires any loan capital of any corporate body (wherever incorporated);

 

(o)	no Target Company creates or grants any Third Party Right including any Encumbrance over all or any of its present and future shares or assets other than a Permitted Encumbrance or otherwise as Disclosed;

 

(p)	no Target Company gives any guarantee, indemnity, suretyship or other agreement (whether or not legally binding) to secure an obligation (whether Financial Debt or otherwise) of a third party which if called would result in a cost to the Target Companies of £100,000 or more;

 

(q)	no Target Company fails to pay its debts as they fall due in the manner consistent with previous practice in the 12 months prior to the date of this Deed, where such failure would result in a cost to the Target Companies of £100,000 or more;

 

(r)	no Target Company enters into any agreement for the acquisition, disposal, merger or licence of any shares, business or (other than in the ordinary course of business) assets, in each case involving consideration, expenditure or liabilities in excess of £100,000 (exclusive of VAT);

 

 

(s)

no Target Company, other than in the ordinary course of business, sells, leases, licenses or otherwise transfers or disposes of, abandons or permits to lapse, fails to take any action necessary to maintain, enforce or protect, or creates or incurs any lien on, such Target Company’s rights in any material IPR or Business System;

 

(t)	no Target Company changes its jurisdiction of residence for tax purposes; and

 

(u)	no Target Company:

 

(i)

other than in the ordinary course of business, makes or changes any tax election, changes any tax accounting period or changes any method of tax accounting;

 

(ii)

other than in the ordinary course of business, surrenders any Relief or right to claim a tax refund, offset or other reduction in tax liability;

 

(iii)

other than in the ordinary course of business, amends any tax returns; or

 

(iv)

enters into any agreement, or settles any claim, dispute, audit or assessment, with a Tax Authority in excess of £100,000,

 

and, in the case of (i), (ii) and (iii) only, to the extent that such matters would have the effect of materially increasing the tax liabilities or materially reducing the availability of tax relief to the Target Companies (in aggregate) following Closing and is not required by law or published practice or a relevant Tax Authority.

 

Schedule 4

Closing Arrangements

 

 

1.	At Closing, each of the Sellers shall deliver or ensure that there is delivered to the Purchaser (or made available to the Purchaser’s reasonable satisfaction):

 

(a)

in respect of that Seller, a duly executed transfer by the registered holder of all the Shares held by it into the name of the Purchaser in respect of all of such Shares;

 

(b)

in respect of that Seller, the share certificates relating to all the Shares held by it or indemnities in lieu of such certificates if those certificates have been lost by that Seller;

 

(c)

in respect of that Seller, a duly executed transfer by the registered holder of all the Loan Notes held by it into the name of the Purchaser in respect of all of such Loan Notes; and

 

(d)

in respect of that Seller, the certificates relating to all the Loan Notes held by it or indemnities in lieu of such certificates if those certificates have been lost by that Seller.

 

2.	At Closing, the Investor and the Individual Sellers’ Representative shall enter into (and procure the Escrow Agent enters into) the Escrow Agreement.

 

3.	In addition to the obligations in paragraph 1 above, at Closing, the Sellers shall deliver or ensure that there is delivered to the Purchaser (or made available to the Purchaser’s reasonable satisfaction):

 

(a)

duly executed Security Releases, against satisfaction of the prepayment and cancellation of the Facilities pursuant to paragraph 1(e) of Part B of this Schedule 4;

 

(b)

all documents (including  share certificates, signed but undated stock transfer forms and documents of title) (if any) held by the Security Agent (as defined under each of the Facilities Agreements) under or pursuant to the Facilities Agreements; and

 

(c)

the Termination Deed.

 

4.	In addition to the obligations in paragraphs 1 and 2 above, at Closing, the Investor shall deliver or ensure that there is delivered to the Purchaser (or made available to the Purchaser’s reasonable satisfaction):

 

(a)

the duly signed resignations in the Agreed Form of each of the Investor Directors as directors of the Company and as directors of any other members of the Group; and

 

(b)

a copy of a resolution (certified by a duly appointed officer as true and correct) of the board of directors of the Investor authorising the execution of and the performance by the Investor of its obligations under this Deed and each of the Transaction Documents to be executed by it.

 

 

 

1.	At Closing, the Purchaser shall:

 

(a)

deliver (or ensure that there is delivered) to the Investor a copy of a resolution (certified by a duly appointed officer as true and correct) of the board and/or supervisory board (as necessary to provide valid authorisation) of directors of each of the Parent Company and the Purchaser (or, if required by the law of its jurisdiction or its articles of association, by-laws or equivalent constitutional documents, of its shareholders) authorising the execution of and the performance by the relevant company of its obligations under this Deed and each of the Transaction Documents to be executed by it;

 

(b)

enter into the Escrow Agreement;

 

(c)

pay by electronic funds transfer for value on the Closing Date:

 

(i)

the Net Investor Price to the Investor's Bank Account, with 17.5% of the Net Investor Price being paid in pounds sterling and 82.5% of the Net Investor Price being paid in US dollars (having been converted from pounds sterling into US dollars at the Exchange Rate);

 

(ii)

the Investor Retained Costs to the Investor’s Bank Account in pounds sterling;

 

(iii)

the Managers Price, less the Managers Escrow Amount, to the Sellers’ Lawyers Bank Account in pounds sterling;

 

(iv)

the amount payable by the Purchaser pursuant to the Secondary SPA and/or the Compulsory Purchase Notices less the Secondary SPA Escrow Amount in pounds sterling to such account as the Individual Sellers’ Representative shall direct provided that the Individual Sellers’ Representative may only nominate one bank account (or failing such direction to the Sellers’ Lawyers Client Account); and

 

(v)

the Principal SPA Escrow Amount and Secondary SPA Escrow Amount to the Escrow Account,

 

in each case, in accordance with its obligations under clause 2.4;

 

(d)

procure the redemption by Nugent 2 of the Ex-Employee Loan Notes at the Ex-Employee Loan Note Price; and

 

(e)

provided that the Sellers have complied with their obligations under clause 6.5, procure the prepayment in full, in an amount equal to the Facilities Redemption Amount, and cancellation of the Facilities by the Borrower in accordance with the terms of the Facilities Agreements, against delivery of the Security Releases pursuant to paragraph 3(a) of Part A of this Schedule 4.

 

 

 

1.	Each of the Sellers acknowledges that Closing of this Deed constitutes an “Exit” pursuant to the Shareholders’ Agreement and, accordingly, with effect from Closing, the Shareholders’ Agreement shall terminate in accordance with clause 20 thereof and

 

in accordance with the Termination Deed pursuant to paragraph 3(c) of Part A of Schedule 4.

 

2.	All documents and items delivered at Closing pursuant to this Schedule 4 shall be held by the recipient to the order of the person delivering the same until such time as Closing shall be deemed to have taken place.  Simultaneously with:

 

(a)

delivery of all documents and all items required to be delivered at Closing (or waiver of the delivery of it by the person entitled to receive the relevant document or item);

 

(b)

receipt of an electronic funds transfer to:

 

(i)

the Investor’s Bank Account, in immediately available funds, of the Net Investor Price (with 17.5% of the Net Investor Price being paid in pounds sterling and 82.5% of the Net Investor Price being paid in US dollars (having been converted from pounds sterling into US dollars at the Exchange Rate));

 

(ii)

the Investor’s Bank Account, in immediately available funds, of the Investor Retained Costs;

 

(iii)

the Sellers’ Lawyers Client Account, in immediately available funds of the Managers Price less the Managers Escrow Amount;

 

(iv)

such account as the Individual Sellers’ Representative shall direct, provided that the Individual Sellers’ Representative may only nominate one bank account (or failing such direction to the Sellers’ Lawyers Client Account), in immediately available funds of the amount payable by the Purchaser pursuant to the Secondary SPA and/or the Compulsory Purchase Notices less the Secondary SPA Escrow Account; and

 

(v)

the Escrow Account, in immediately available funds, of the Principal SPA Escrow Amount and the Secondary SPA Escrow Amount;

 

(c)

receipt of an electronic funds transfer to such account as the Individual Sellers’ Representative shall direct, provided that the Individual Sellers’ Representative may only nominate one bank account (or failing such direction to the Sellers’ Lawyers Client Account) in immediately available funds of the amount payable by Nugent 2 to redeem the Ex-Employee Loan Notes; and

 

(d)

the prepayment and cancellation of the Facilities referred to in paragraph 1(e) of Part B of this Schedule 4,

 

 

the documents and items delivered in accordance with this Schedule shall cease to be held to the order of the person delivering them and Closing shall be deemed to have taken place.

 

Schedule 5

Permitted Leakage

 

1.	Payment of the Price.

 

2.	The accrual of any interest on the Loan Notes and the accrual of any preferred dividend on the Preference Shares in respect of the period from and excluding the Accounts Date up to and including the Closing Date.

 

3.	Payment of the consideration pursuant to the business purchase agreement dated 5 March 2015 between Deloitte LLP and Wood Mackenzie Limited in connection with Project Paris.

 

4.	The payment, or incurring, of professional fees to the professional advisers of any Target Company (including any such amounts paid in connection with Project Paris), provided such fees are not Transaction Costs.

 

5.

Payments and provision of benefits (including accruals in respect of the discretionary performance award bonus scheme), other than any Transaction Bonuses to any Seller in his/her capacity as an employee, director and/or officer of the Group as required under any employment or service agreement or by virtue of his/her employment or directorship, in the ordinary course of business and consistent with past practice.

 

6.	Payment of any break costs or termination fees in respect of the Facilities Agreements.

 

7.	The payment of reasonable business expenses of any director of any Target Company incurred in the normal course of business of the Target Company up to an aggregate amount of £100,000 (exclusive of VAT).

 

8.	The payment (or agreement to pay) by a Target Company to the EBT of fees up to an aggregate amount of £200,000.

 

9.	The repayment of Employee Strip Loan Notes and acquisition by the EBT of Ordinary Shares of an amount not exceeding £200,000 in aggregate to former employees and/or their Affiliates.

 

10.

Any PAYE, national insurance contributions (employer and employee) (and amounts of a corresponding nature payable to a Tax Authority outside the United Kingdom) and other tax liability of a Target Company referable to, or arising in connection with, any of the foregoing (excluding for the avoidance of doubt in connection with any Transaction Bonuses).

 

Schedule 6

Business Warranties

 

Part A General Warranties

 

1.       Group Structure/Constitution

 

1.1           Part A of Schedule 9 sets out true and accurate particulars of the Company and its issued share capital which is fully paid up.  Part B of Schedule 9 lists all of the subsidiaries of the Company and sets out true and accurate particulars of those subsidiaries and their issued share capital or stock (as appropriate).  All issued shares in the Subsidiaries are ultimately beneficially owned by the Company.

 

1.2           No right has been granted to any person to require any Target Company to issue any share capital and no Encumbrance has been created in favour of any person affecting any unissued or issued shares, debentures or other securities of any Target Company.

 

1.3           No commitment which is unfulfilled or remains outstanding has been given to create an Encumbrance affecting the issued shares or stock of any Target Company (or any unissued share or debenture or other unissued securities of any Target Company) or for any Target Company to issue any share capital.

 

1.4           The copy of the Articles in the Data Room Documents is true and complete.

 

1.5           The register of members of the Company has been properly kept and contains true and complete records of the present members of the Company.

 

1.6           The statutory books of the Company are up to date in all material respects and in its possession or within its control.

 

1.7           Due compliance has been made with all the provisions of the Companies Act in connection with:

 

(a)	the formation of the Company;

 

(b)	any allotment, issue, purchase or redemption of shares, debentures or other securities in the Company;

 

(c)	any amendment to the memorandum or articles of association of the Company;

 

(d)	the passing of any resolutions by the Company; and

 

(e)	the payment of any dividends by the Company.

 

1.8           Each Target Company is validly incorporated, in existence and duly registered under the laws of its jurisdiction of incorporation and each Target Company has full power to conduct its business as conducted at the date of this Deed.

 

 

2.       Financial Information

 

2.1           The Sellers have provided the Purchaser with the audited consolidated accounts of the Group as at and for the years ended on each of 31 December 2012 (the 2012 Accounts ), 31 December 2013 (the 2013 Accounts ) and 31 December 2014 (the 2014 Accounts ).

 

 

2.2           Each of the 2012 Accounts, 2013 Accounts and 2014 Accounts (together the Recent Accounts ) comply in all material respects with the requirements as at 31 December 2012, 31 December 2013 and 31 December 2014 (as applicable) of the Companies Act and of all relevant statutory instruments.

 

2.3           The Recent Accounts have been prepared:

 

(a)	in the case of the 2012 Accounts and the 2013 Accounts in accordance with generally accepted accounting principles and practices in the UK as at 31 December 2012 or 31 December 2013 (as applicable);

 

(b)

in the case of the 2014 Accounts (which also include a balance sheet for 1 January 2013, 31 December 2013 and 31 December 2014 and a profit and loss account, a cash flow statement and a statement of changes in the shareholders’ equity for the periods ended 31 December 2013 and 31 December 2014) in accordance with International Financial Reporting Standards (including international accounting standards, international financial reporting standards and interpretations of such standards) as formally adopted for use in the European Union under EU Regulation 1606/2002 as in force for the accounting period ending on 31 December 2014 and audited by Deloitte LLP in accordance with the generally accepted auditing standards in the UK.

 

2.4           Each of the Recent Accounts show a true and fair view of the state of affairs of the Group as at 31 December 2012, 31 December 2013 or 31 December 2014 (as applicable) and of the profits/losses of the Group for the financial period ending on 31 December 2012, 31 December 2013 or 31 December 2014 (as applicable).

 

2.5           The Management Accounts:

 

(a)	have been prepared in a manner and on a basis consistent with the previous management accounts for the 12-month period ending on 31 December 2014;

 

(b)

recognising that they were prepared as a management tool and were not prepared or verified on a statutory basis or to audit standard, fairly reflect the overall financial state of affairs of the Group as at the Management Accounts Date and the overall financial performance of the Group for the period for which they were prepared.

 

2.6           The statutory books, books of account, accounting records and other records of each Target Company required to be kept by applicable laws in any relevant jurisdiction:

 

(a)	have, so far as the Key Managers are aware, been maintained in all material respects in accordance with the requirements of all relevant laws and the relevant and applicable accounting principles then in force;

 

(b)	are in the possession of the members of the Group; and

 

(c)	no notice or allegation that any of the same is incorrect or should be rectified has been received by the Company.

 

 

3.        Group Structure

 

3.1           Save as Disclosed, no member of the Group has, and no member of the Group has agreed to acquire, any interest in the share or loan capital of any body corporate.

 

 

 

3.2           No member of the Group is or has agreed to become a director, officer or shadow director of any body corporate (other than a member of the Group), partnership or unincorporated association.

 

 

4.       Events Since the Accounts Date

 

4.1           Since the Accounts Date:

 

(a)	the business of each member of the Group has been carried on in all material respects in the ordinary course and so as to maintain the same as a going concern;

 

(b)	no member of the Group has acquired or disposed of any material assets or assumed or incurred any material liabilities (whether actual or contingent and with material for the purposes of this paragraph 4.1(b) being an amount in excess of £125,000), except for:

 

 

 

(c)	no contract, obligation or transaction has been entered into and no payment has been made by any member of the Group otherwise than in the ordinary course of carrying on its business and on arm’s length terms;

 

(d)	no dividends or other distributions have been declared, paid or made by any member of the Group;

 

(e)	no share or loan capital of any member of the Group has been issued, redeemed, purchased or repaid;

 

(f)	there has been no material change in the policy or procedures by which the members of the Group collect their debts;