TERMS AND CONDITIONS
INSTRUCTIONS BY THE SELLER(S) TO ACHIEVE CORPORATION LTD TO ACT AS THE SOLE AGENCY WITH SOLE SELLING RIGHTS FOR THE SALE OF THE BUSINESS OR THE COMPANY (TOGETHER WITH ALL ASSETS) AND/OR THE SALE OF THE SHARES IN THE COMPANY (EITHER, the sale of the BUSINESS)
1 Obligations of Achieve Corporation Ltd services (ACL)
1.1 ACL will use reasonable care skill and diligence in marketing the Business and will at its own cost and discretion undertake any of the following:
1.1.1 Prepare sales memorandum documents for the sale of the Business
1.1.2 Market the Business in such manner as ACL shall from time to time consider appropriate including advertising the availability of the Business in the national press, specialised publications, Internet sites and other suitable media, by fax, e-mail, telephone, and direct mail
1.1.3 Interrogate the ACL database containing detailed company financial and shareholder information details of company activities and trading addresses to assist ACL with the performance of its obligations under these Terms
1.1.4 Introduce to the Seller potential Purchasers that ACL deems suitable
2 Appointment of ACL
2.1 In consideration of the obligations assumed by ACL in accordance with clause 1 the Seller hereby appoints ACL as its Sole Agent for the SALE OF THE BUSINESS OR THE COMPANY (TOGETHER WITH ALL ASSETS) AND/OR THE SALE OF THE SHARES IN THE COMPANY (EITHER, the sale of the BUSINESS) for the sale of the Business of the Company or the sale of the shares in the Company, as the case may be
2.2 ACL’s appointment as Sole Agent shall take effect upon the date on which the Seller received a Confirmed Scope of Works, or a Confirmed Proposal of Works document, as indicated in the Schedule,or upon clause 6.1 or 6.9 taking effect or and shall continue for a minimum period of 26 weeks from that date and shall continue thereafter until terminated by not less than 1 days written notice sent at any time after the expiry of such 26 week period to ACL (Appointment Period). The Seller also agrees that the payment of an Engagement Fee to ACL (as set out in 4.1) confirms their acceptance of these terms and conditions.
3 The Seller’s confirmations, warranties, and undertakings
The Seller confirms, warrants, represents and undertakes that:
3.1 The Seller has the necessary unfettered authority approvals and the consent of any other party with a beneficial interest in the Business to appoint ACL to market and sell the Business under these Terms
3.2 The Seller will at the outset promptly following the appointment of ACL and from time to time thereafter supply to ACL all relevant information relating to the Seller and the Business which is available and/or which ACL may reasonably request
3.3 ACL may place reliance on such information and may relay it to Purchasers who may also rely on such information
3.4 All information which the Seller or the Seller’s agents supply to ACL is and will be correct, complete, not misleading and free of any material omissions and the Seller shall advise ACL in writing of any noncompliance with the foregoing promptly upon discovery thereof including any information relating to any change to the Business (including the performance or operation thereof) or any of the Assets which renders any information previously provided to ACL incorrect, incomplete, misleading or subject to material omissions
3.5 The Seller will co-operate fully with ACL in the marketing of the Business and progressing the Transaction to completion. In particular, the Seller agrees to provide any requested Business information by return and in a ‘timely manner’.
3.6 The Seller will notify ACL immediately (whether at any time during or after ACL’s appointment) upon exchange of contracts in relation to any Transaction and will supply a copy of the contract and any other document relevant to any Transaction forthwith on request
3.7 The Seller will notify ACL immediately on completion of any Transaction and will supply full details of all aspects of the Transaction and the Transaction Value (in either case including but not limited to copies of all documentation relating thereto)
3.8 The Seller shall not itself market the Business or appoint permit or allow any other agent to market the Business for sale during the Appointment Period and shall forthwith and with immediate effect terminate any other agency agreement entered into prior hereto
4 Remuneration and payment
4.1 ACL’s remuneration shall be (the sum set out in a Confirmed Scope of Works document, which will have been agreed on between the parties, prior to this agreement coming into effect) plus VAT payable upon the taking effect of ACL’s appointment in accordance with 2.2 above (Engagement Fee) with a success fee sum set out in a Confirmed Scope of Works document, which will have been agreed on between the parties, prior to this agreement coming into effect) (plus VAT) of the final selling price of the business. The Seller shall pay ACL’s Remuneration in full without any set-off, withholding or any other deduction.
4.2 The Success Fee shall be payable by the Seller on each and every occurrence of any of the following circumstances:
4.2.1 on negotiating or entering into a Transaction or the entering into or negotiation of a contract in relation to a Transaction during the Appointment Period
4.2.2 on entering into a Transaction or the entering into of a legally binding contract in relation to a Transaction after the end of the Appointment Period with any person who became aware at any time during or after the Appointment Period that the Business was for sale even if such person was not found located or identified by ACL or who became aware of the availability of the Business directly or indirectly by ACL’s carrying out its obligations under these Terms. This term to expire 24 months post the accepted cancellation of this agreement.
4.2.3 on ACL introducing a Purchaser and the Seller entering into Transaction heads of terms with such Purchaser but the Seller subsequently aborting the agreed Transaction
4.2.4 on ACL introducing a Purchaser and the Seller entering into Transaction heads of terms with such Purchaser but the Purchaser aborting the Transaction
4.3 In circumstances where ACL introduces a Purchaser who offers a sum for purchasing the Business and the Seller rejects such offer, ACL shall be entitled to a fee equivalent to the Success Fee as set out in Clause 4.1 above. This sum to be calculated in accordance with the terms and conditions of this agreement and if the Vendor terminates this agreement at a time when a person or entity (whether or not introduced by ACL) is negotiating a transaction or who has agreed terms in principle (subject to contract or otherwise), the Vendor shall pay the agency fees, at the value of the total valuation of the business that the person or entity had outlined in their offer letter.
4.4 The Seller shall pay any amount of the Remuneration not already paid to ACL on the earlier of:
4.4.1 completion of the Transaction; or
4.4.2 immediately upon all or any of the Transaction Value being received by or payable to the Seller; or
4.5 2 business working days after the Success fee becoming payable in accordance with clause 4.2
4.6 In the event that the Remuneration increases for any reason at any time after any payments become due or are made pursuant to 4.3 the Seller shall pay any increase in the Remuneration to ACL immediately
4.7 If the Seller does not pay any part of the Remuneration on the due date for payment the Seller shall and hereby agrees to pay and fully indemnify ACL in full in respect of all costs liabilities and expenses that ACL incurs in the collection and recovery of any or all of the Remuneration including all legal costs and expenses and the cost of any form of enforcement proceedings
4.8 Interest shall be due on any part of the Remuneration outstanding (including any VAT payable thereupon) at the rate payable under the Late Payment of Commercial Debts (Interest) Act 1998 from the due date for payment until the date of actual payment in full
5 Limitations of liability and indemnity
5.1 The Seller hereby acknowledges and agrees that ACL does not act as agent for any Purchaser and ACL will not be liable to the Seller for any representation howsoever made by any Purchaser (whether directly or through ACL), nor for any information which ACL obtains from any third party and which ACL provides to the Seller (except where ACL knows such representation or information to be untrue or such representation or information is made or given fraudulently) nor in respect of any contract entered into by the Seller in relation to the Transaction.
5.2 The Seller acknowledges that it has not entered into these Terms in reliance upon any promises representations statements or undertakings written or oral made by or on behalf of ACL except for any which are expressly set out in these Terms
5.3 The Seller agrees and hereby fully indemnifies ACL and its officers and employees against all claims (including any damages or compensation that ACL and its officers and employees may pay on the advice of legal advisers to compromise or settle any claim) and all liabilities costs expenses incurred in connection with each and any claim by any third party arising out of acting pursuant to these Terms or arising out of any information provided by the Seller to ACL.
5.4 ACL’s liability hereunder shall not exceed the Engagement Fee
6 General Provisions
6.1 These Terms contain the entire and only agreement between the Seller and ACL and they may only be varied by agreement in writing signed by the parties’ respective authorised representatives except whereby any instructions given by you to us to proceed with the matter in respect of which you have instructed us will be deemed to construe your acceptance that such matter shall be conducted in accordance with the variation of these terms irrespective of whether or not the duplicate of the variation agreement is signed and returned to us
6.2 These Terms do not create any right enforceable by any person who is not a party to them under the Contracts (Rights of Third Parties) Act 1999
6.3 These Terms shall be governed by and construed in accordance with English law and each party hereby submits to the non-exclusive jurisdiction of the English courts
6.4 Any failure by ACL at any time to enforce or exercise any rights under these Terms will not be construed as a waiver of the right to enforce or exercise that right in the future or other rights under these Terms at any time
6.5 Termination of ACL’s appointment shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provisions herein which are expressly stated as or by reasonable interpretation implied as coming into or continuing in force after such termination. Following the termination of this agreement ACL reserve the right to make a charge to the Seller which represents any work undertaken on the behalf of the Seller including but not limited to preparation of Sales Information Memorandums and Documents, phone calls, meetings attended, travel costs and research.
6.6 The Seller authorises ACL to communicate with the Seller and with all other relevant parties by such means as ACL consider appropriate including telephone fax e-mail and text messaging
6.7 Any written notice given by either party to the other shall only be valid and effective if sent by recorded delivery and the sender has and retains written confirmation of delivery and provides proof thereof on request by the other party and such notice shall be deemed to have been delivered and received by the recipient two days after it was sent as aforesaid
6.8 The Seller hereby undertakes to authorise and instruct the solicitors acting for the Sellers and the company to pay the Final Success Fee out of the proceeds of sale immediately on completion to ACL such authority not to be revoked without ACL’s consent
6.9 Any instructions given by you to us to proceed with the matter in respect of which you have instructed us will be deemed to construe your acceptance that such matter shall be conducted in accordance with these terms irrespective of whether or not any duplicate of this agreement is signed and returned to us
6.10 All obligations and liabilities of the Seller under this agreement are joint and several
6.11 The Seller named in the Schedule acknowledges and agrees that it is entering into this agreement:
6.11.1 on its own behalf and on behalf of any of its Connected Persons or Affiliates
6.11.2 on behalf of any other person with a beneficial interest in the Business or its Connected Persons or Affiliate
6.11.3 on behalf of all other Sellers
6.12 The Seller named in the Schedule confirms warrants and represents that all other Sellers and all other persons with a beneficial interest in the Business agree to be bound by these terms and conditions as if there were specifically named in the Schedule as a Seller and had signed this document
6.13 Words in the singular include the plural and in the plural include the singular
6.14 Words importing the masculine gender shall include the feminine gender
6.15 A person includes a corporate or unincorporated body
6.16 The Seller and ACL agree:
6.16.1 that if any provision of this agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force;
6.16.2 that if any invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties; and
6.16.3 in the circumstances referred to in clause 6.17.1 and if clause 6.17.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves, to the greatest extent possible, the same effect as would have been achieved by the invalid, unenforceable or illegal provision
7 Definitions and Interpretation
7.1 “Affiliate” means:
7.1.1 any company in which a person or his nominee is a shareholder director or company secretary; or
7.1.2 any company in which a person or his nominee is beneficially entitled to or owner of any or all of the issued share capital of that company; or
7.1.3 any subsidiary parent holding company or associated company of any company that is an Affiliate pursuant to 7.1.1 or 7.1.2; or
7.1.4 any shareholder in any such company or partner in any such business and any director employee contractor consultant or agent of any such party or any other party acting upon the instructions of or with the approval of or on behalf of a person firm or company and shall include any of the above whether before or after any reconstruction or amalgamation or liquidation
7.2 “Assets” means all the property assets and rights used in or for the conduct of the Business or which are sold to a Purchaser or are reserved as part of a Transaction including any land buildings fixtures and fittings goodwill raw materials stock work in progress plant machinery and equipment intellectual property rights franchises leasing and hiring agreements and any other contracts whatsoever cash book debts at completion of a Transaction and where the Business is a company the shares or ownership interests or other receivables in that company and any other shares or ownership interests sold or retained together with the shares or ownership interests of any other business which is sold or retained as a result of a Transaction
7.3 “Business” means the business of the Seller trading under the name or similar names set out in the Schedule and including (without prejudice to the generality of the foregoing) any company and or any subsidiaries trading under the names or similar name set out in the Schedule and any of the Assets and any other business or businesses, assets or shares in any way connected to them or it
7.4 “Connected Person” means all of those persons incorporated bodies and other entities (including trusts and/or pension funds for the benefit of the seller or any affiliate) as are set out in section 249 of the Insolvency Act 1986 and/or section 346 of the Companies Act 1985 and/or section 839 of the Income and Corporation Taxes Act 1988 (and more than one provision may apply at any one time to give the broadest interpretation of whether in any situation a person is a Connected Person) and shall also mean any other person in any form of business or personal relationship with a Seller or any Affiliate including any unmarried partner whether of the same or the opposite sex
7.5 “Purchaser” means any person or business that enters into a Transaction
7.6 “Sale” shall have the same meaning as Transaction
7.7 “Seller” means:
7.7.1 the person(s) named in the Schedule; or
7.7.2 any Connected Person or Affiliate of the person named in the Schedule; or
7.7.3 any person with a beneficial Interest in the Business
7.7.4 any Connected Person or Affiliate of any person with a beneficial Interest in the Business
7.7.5 any other owner of any Assets or Business that is sold or transferred as part of or as a consequence of a Transaction or that is retained and reserved as part of or as a consequence of a Transaction where the Seller instructs ACL in respect of a Transaction which includes any other business or businesses, assets or shares belonging to another party the Seller shall remain liable for the Remuneration due under these Terms unless that liability is novated to or expressly accepted by that other party
7.8 “Sole Agent” means the exclusive right to market the Business for Sale during the Appointment Period
7.9 “Terms” means these terms of business
“Transaction” means the transfer or any other disposition of the Business or any of the Assets (whether from the Seller to a Purchaser or vice versa or from or to any Affiliate of either party) and whether by sale merger trade conveyance option transfer lease licence or otherwise and shall include a company buy-back of its own shares or management buy-out or earn-out or any other form of merger de-merger or reorganisation or reconstruction of the Business (including the transfer of one or more Assets from one owner to another prior to transfer to a Purchaser) and any liquidation winding up dissolution or any other form of amalgamation or reconstruction of the Business or where the Seller and Purchaser or any Affiliate of either party enters into any other relationship whatsoever together including any financing arrangement subscription for shares or securities of any description any employment arrangement joint venture and any combination of any of the above and whether the consideration for the same is in cash or in some other form (either wholly or partly) and whether payable in whole or in part on completion or at any other date or dates
7.10 “Transaction Value” means the total value of all consideration paid or paid in kind or agreed to be paid or paid in kind (whether or not it is received) and/or the total value of any liabilities responsibility for which is assumed whether directly or indirectly and/or the total value of all other consideration or matters brought into account in accordance with clauses 7.11.1 to 7.11.4 or otherwise and in all cases at any time in respect of a Transaction (and in the event that any such value decreases after completion of a Transaction such decrease shall be disregarded for the purpose of the calculation of ACL’s Remuneration under these Terms however if any such value increases after completion of a Transaction such increase shall be taken into account for such purpose, whether or not such increase is received), in all cases without any set off, withholding or any other deduction or counterclaim, and will include (without prejudice to the generality of the foregoing):
7.10.1 all or any payment or set off or other credit for the Business non-competition agreements employment and/or consultancy agreements (or compensation for the termination of any such agreement) options of any type any payment for freehold property the total value of any lease including the value of any renewal any lease premiums (including reverse premiums) rents payment for or in lieu of dilapidations the value of any licence or other arrangement for the use of any property or buildings or any other payments for land whatsoever pensions or other benefits dividends benefits in kind any royalties earn-outs deferred or future consideration however calculated together with the value of the assumption by the Purchaser or any third party or the release or waiver of any of the Seller’s and/or the Business’s liabilities of any kind or vice versa or the liabilities of any kind of any Affiliate of either party whether actual or contingent including the redemption of any mortgage or the repayment of any other loan or debt the assumption of any obligations under any agreement or the novation of any contract including hire purchase contract hire and other finance agreements releases (including releases or waivers of liabilities) guarantees indemnities or any other consideration whatsoever passing or taken into account between the Seller and/or the Business and the Purchaser or any third party or any of their Affiliates in respect of a Transaction
7.10.2 where a Transaction consists of a transfer to the Purchaser of part of the Business the full Value of that part of the Business which is retained by the Seller will be included in the Transaction Value
7.10.3 If the Transaction shall be a sale issue or buy back of any or all of the shares of or in a company the Transaction Value shall:-
7.10.3.1 include a sum equal to the sum computed by multiplying the price paid per share by the total number of issued shares in respect of that company together with the value of the liabilities retained by the Business or otherwise assumed by a Purchaser whether as principal or guarantor or otherwise and any other obligation or liability from which the Seller or any Affiliate is released
7.10.3.2 include a sum equal to the market value of any shares issued or acquired by that or any other company in connection with the Transaction
7.10.4 All references to ‘Value’ in this clause 7.11 shall mean, where consideration is paid or agreed to be paid, the amount of that consideration and, where consideration is not paid but is brought into account in accordance with the definition of Transaction Value, the open market value in respect thereof and any dispute as to what constitutes open market value shall be determined by an expert to be appointed by agreement between the parties or in default of agreement within ten working days by the President for the time being of the Institute of Chartered Accountants in England and Wales and such person shall decide upon the procedure for determining the value in dispute and any provisions for payment of costs and shall act as expert not as arbitrator and his decision shall be final and binding on the parties
7.11 Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended and/or extended.
7.12 Remuneration: the Engagement Fee and Success Fee
7.13 “Timely Manner” information that has been requested via email, letter, or fax and that has not been fully provided in accordance with the request in the period expiring 48 hours after the request has been made
7.14 Words denoting the singular shall include the plural and vice versa and words denoting persons shall include firms and corporations and vice versa and word denoting a gender shall mean any gender
7.15 The headings in these Terms are inserted for convenience only and shall not affect the construction or interpretation of these Terms. References herein to ‘including’ or to similar expressions shall be construed non-exclusively and without limitation