A G R E E M E N T For the sale and purchase of the entire share capital of Via Net.Works UK Limited EVERSHEDS LLP Eversheds House Manchester M1 5ES Tel +44 (0) 161 831 8000 Fax +44 (0) 161 831 8888

Exhibit 2.1

DATED		28 September 2004

(1)	VIA XXX.XXXXX EUROPE HOLDING B.V.

(2)	CLARANET LIMITED

(3)	XXXXX.XXX HOLDINGS LIMITED

(4)	VIA XXX.XXXXX, INC.

A G R E E M E N T

For the sale and purchase of the entire share capital of Via
Xxx.Xxxxx UK Limited

EVERSHEDS LLP

Eversheds House

00 Xxxxx Xxxxxxxxxxx Xxxxxx

Xxxxxxxxxx X0 0XX

Tel x00 (0) 000 000 0000

Fax x00 (0) 000 000 0000

CONTENTS

Clause

1	DEFINITIONS AND INTERPRETATION
2	SALE AND PURCHASE
3	COMPLETION
4	WARRANTIES
5	PROVISIONS RELATING TO THE USE OF COMPANY NAME
6	PURCHASER’S WARRANTIES AND VENDOR’S WARRANTIES
7	PURCHASER’S UNDERTAKINGS, VENDOR ASSURANCES AND COMPANY ASSURANCES
8	RESTRICTIVE COVENANTS
9	ANNOUNCEMENTS
10	COSTS
11	INTEREST
12	GUARANTEES
13	PAYMENTS
14	NOTICES
15	ENTIRE AGREEMENT
16	CONTINUING EFFECT
17	INVALIDITY
18	AMENDMENTS, VARIATIONS AND WAIVERS
19	FURTHER ASSURANCE AND ASSISTANCE
20	COUNTERPARTS
21	ASSIGNMENT
22	KP CLAIM
23	CASH
24	INDEMNITIES AND COMPUTER EQUIPMENT
25	GOVERNING LAW AND JURISDICTION

Schedules
1	The Vendor
2	PART 1
	THE COMPANY
	PART 2
	THE SUBSIDIARIES
3	The Warranties
	COMPLIANCE, DISPUTES
	SUBSIDIARIES
4	Taxation
	PART 1 – INTERPRETATION

	PART 2 - TAX COVENANT
	PART 3 - TAX WARRANTIES
5	Completion Arrangements
6	The Properties
7	Limitations on the Vendor’s Liability
8	Completion Adjustment
9	Provisions regarding Retention Fund
10	People of whom enquiry has been made for the purpose of Vendor awareness
11	Identified Prospects under ‘Sales Radar’
12	Computer Equipment
13	Documents to be submitted to the Inland Revenue for adjudication (clause 24)

THIS AGREEMENT is made on

2004

BETWEEN

(1) The person whose name and address is set out in Schedule 1 (“the Vendor”);

(2) CLARANET LIMITED (registered number 03152737) whose registered office is at 00 Xxxxxxxxxxx Xxx, Xxxxxx XX0X 0XX (“the Purchaser”);

(3) XXXXX.XXX HOLDINGS LIMITED (registered in Jersey under number 76481) whose registered office is at PO Box 274, Thirty Six Hilgrove Street, St Helier, Jersey, JE4 8TR, Channel Islands (“the Guarantor”); and

(4) VIA XXX.XXXXX, INC.(registered number FCO24926) whose registered office is at 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, XXX (“the Vendor’s Guarantor”).

BACKGROUND

(A) The Vendor has agreed to sell, and the Purchaser has agreed to purchase, the Shares on the terms and conditions set out in this Agreement.

(B) The Vendor has agreed to enter into this Agreement in consideration (inter alia) of the Guarantor giving the guarantee set out in clauses 12.6 to 12.10 (inclusive).

(C) The Purchaser has agreed to enter into this Agreement in consideration (inter alia) of the Vendor’s Guarantor giving the guarantee set out in clauses 12.1 to 12.5 (inclusive).

OPERATIVE CLAUSES

1. DEFINITIONS AND INTERPRETATION

1.1 Defined Terms

In this Agreement:

the following expressions have the following meanings unless inconsistent with the context:

“Accounting Date”		means 31 December 2003

“Accounts”		means the audited balance sheet of the Company as at the Accounting Date and the audited profit and loss account of the Company for the Financial Year which ended on the Accounting Date including the Directors’ Report, the Auditors Report and all notes annexed to them

“Accounting Standards”		means the statements of standard accounting practice referred to in section 256 CA 1985

		issued by the Accounting Standards Board

“agreed terms”		means, in relation to any document, in the terms agreed between the parties and signed or initialled for identification purposes only by or on behalf of the Purchaser’s Solicitors and the Vendor’s Solicitors prior to the execution of this Agreement

“Business Day”		means any day (other than a Saturday or Sunday or a public holiday) on which clearing banks are open in London and Amsterdam for a full range of normal banking business

“CA 1985”		means the Companies Xxx 0000 (as amended)

“Company”		means VIA XXX.XXXXX UK Limited (details of which are set out in Part 1 of Schedule 2)

“Company Assurance”		means any indemnity, guarantee or commitment of any nature given by the Company or any Subsidiary to the Vendor or any Member of the Vendor’s Group or to any other person to the extent it relates to the Vendor or any Member of the Vendor’s Group but excluding in each case any such obligation which is contained in a Transaction Document or any document entered into pursuant thereto, and any such obligation which is in the ordinary and normal course of trade between the Company and the Vendor or any Member of the Vendor’s Group

“Completion”		means completion of the sale and purchase of the Shares in accordance with clause 3 (Completion) and Schedule 5

“Completion Date”		means the date of this Agreement

“Computer Systems”		means all computer hardware and software used in the Company’s business and in the possession of the Company but does not include Customer Premises Equipment nor hardware or software of the Vendor or its contractors used in the performance of the TSA

“Consideration”		means the consideration for the sale of the Shares as stated in clause 2.3 (Purchase Price) subject to any adjustment made in accordance with the terms of Schedule 8

“Contract”		means any legally binding agreement or commitment whether conditional or

		unconditional

“Customer Premises Equipment”		means equipment required for the provision or receipt of services by a customer and which is not located at the premises of the Company

“Data Room”		means the data room containing information relating to the Group which was located at Eversheds LLP, Senator House, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX and to which the Purchaser, its representatives and professional advisers were afforded access (a complete index of which is attached to the Disclosure Letter (“Data Room Index”))

“Disclosure Letter”		means the letter having the same date as this Agreement together with the appendices and attachments thereto and all documentation or matters deemed to be disclosed therein (including all documents listed in the Data Room Index) from the Vendor to the Purchaser qualifying the Warranties

“Encumbrance”		means any mortgage, charge, pledge, lien, assignment by way of security, option, third party right or third party interest of any nature whatsoever

“Escrow Account”		means the account to be opened on Completion in the joint names of the Vendor’s Solicitors and the Purchaser’s Solicitors and operated in accordance with the terms of the Escrow Account Instruction Letter

“Escrow Account Instruction Letter”		means the letter in the agreed terms from the Vendor and the Purchaser to the Vendor’s Solicitors and the Purchaser’s Solicitors relating to the Escrow Account

“Excluded Contracts Assignment”		means the assignment agreement to be entered into on or prior to Completion between the Company and the Vendor relating, inter alia, to the assignment or proposed assignment of certain Contracts from the Company to the Vendor

“Financial Year”		means, in relation to the Company, an accounting reference period as defined in accordance with s223 of the CA 1985

“Group”		means the Company and the Subsidiaries

“ICTA”		means Income and Corporation Taxes Act 1988

“Intellectual Property”		means all intellectual property, including patents, utility models, trade and service marks, trade names (whether registered or not), domain names, rights in designs, copyrights, moral rights, topography rights, rights in databases, trade secrets and know-how, in all cases whether or not registered or registrable and including registrations and applications for registration of any of these rights to apply for the same but for the avoidance of doubt excluding all such intellectual property of the Members of the Vendor’s Group and all such rights of the Members of the Vendor’s Group which in each case are the subject of the TSA

“Interest Rate”		means the base lending rate of the Royal Bank of Scotland plc from time to time

“KP Claim”		means the claim against the Company by (a) the liquidators of KPNQwest B.V. for unpaid invoices arising out of the KP Services Agreement; and (b) Citibank International plc, acting as the security agent of certain creditors of KPNQwest BV, each as more fully described in the Disclosure Letter

“KP Counterclaim”		means the counterclaim by the Company against KPNQwest B.V. arising out of the failure by KPNQwest B.V. to provide services under the KP Services Agreement and the resultant termination by Synstar Computer Services UK Limited of its Contract with the Company, as more fully described in the Disclosure Letter

“KP Services Agreement”		the services agreement entered into between the Company and KPNQwest B.V. in June 2001.

“Management Accounts”		means the management accounts of the Company from the Accounting Date to 31 August 2004, copies of which are annexed to the Disclosure Letter at document 167 of volume 12 of the Data Room Documents (as defined in the Disclosure Letter)

“Properties”		means the properties of the Company and the Subsidiaries specified in Schedule 6

“PSI Net Europe”		means each of: PSINet Germany GmbH, PSINet Datacenter, Germany GmbH, PSINet France Sarl, PSINet Switzerland Sarl, PSINet Netherlands BV, and PSINet Belgium BVBA/SPRL

“Purchaser’s Group”		means any of the following from time to time: the Purchaser and each of its subsidiaries and subsidiary undertakings and any holding company or parent undertaking of the Purchaser and all other subsidiaries and subsidiary undertakings of any holding company or parent undertaking and “Member of the Purchaser’s Group” shall be construed accordingly

“Purchaser’s Solicitors”		means Xxxxx Xxxxxx of 00 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX

“Recognised Investment Exchange”		means any recognised investment exchange as defined in the Financial Services and Markets Xxx 0000, the Alternative Investment Market of the London Stock Exchange, Nasdaq US and Nasdaq Europe or any relevant market as defined in Article 37 of the Financial Service and Markets Xxx 0000 (Financial Promotion) Order 2001

“Retention Fund”		the aggregate sum of £2 million (two million pounds), the subject of Schedule 9

“Shares”		means all the issued shares in the capital of the Company

“Software”		means all software owned by the Company or used in the Company’s business but, for the avoidance of doubt, excluding any software owned or licensed by any Member of the Vendor’s Group in providing services under the TSA

“Subsidiaries”		means Netlink Internet Services Limited, I-Way Limited, U-Net Limited, I-Way Oxford Limited and WorldWide Web Services Limited, further details of which are set out in Part 2 of Schedule 2

“Taxation”		shall have the meaning given in Schedule 4

“Tax Covenant”		means the tax covenant set out in Part 2 of Schedule 4

“Transaction Documents”		means this Agreement, the Disclosure Letter and the TSA

“TSA”		means the Transition Services Agreement in the agreed terms between the Vendor’s Guarantor, the Company and the Purchaser

“Vendor Assurance”		means any indemnity, guarantee or commitment of any nature given by the Vendor to the Company or a Subsidiary or to any other person to the extent it relates to the Company or a Subsidiary but excluding in each case any such obligation which is contained in a Transaction Document or any document entered into pursuant thereto, and any such obligation which is in the ordinary and normal course of trade between the Company and the Vendor or any Member of the Vendor’s Group

“Vendor’s Group”		means any of the following from time to time: the Vendor and each of its subsidiaries and subsidiary undertakings (other than the Group) and any holding company or parent undertaking of the Vendor and all other subsidiaries and subsidiary undertakings of any holding company or parent undertaking and “Member of the Vendor’s Group” shall be construed accordingly

“Vendor’s Solicitors”		means Eversheds LLP of Eversheds House, 00 Xxxxx Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, X0 0XX

“Warranties”		means the warranties set out in clause 4, clause 6.3 and Schedule 3 and Part 3 of Schedule 4

1.2 Contents page and headings

In this Agreement, the contents page and headings are included for convenience only and shall not affect the interpretation or construction of this Agreement.

1.3 Meaning of references

In this Agreement, unless the context requires otherwise, any reference to:

(a) this Agreement includes the Schedules, which form part of this Agreement for all purposes;

(b) the Background is to the statements about the background to this Agreement made above, a Clause or a Schedule is to a clause of or a schedule to this Agreement and to a Part or a Paragraph of a Schedule is to a part or a paragraph of that Schedule;

(c) a statute or statutory provision includes any consolidation or re-enactment, modification or replacement of the same, any statute or statutory provision of which it is a consolidation, re-enactment, modification or replacement and any subordinate legislation in force under any of the same from time to time except to the extent that any consolidation, re-enactment, modification or replacement enacted after the date of this Agreement would extend or increase the liability of any party to another under this Agreement;

(d) a party or the parties is to a party or the parties (as the case may be) to this Agreement and shall include any permitted assignees of a party;

(e) the masculine, feminine or neuter gender respectively includes the other genders and any reference to the singular includes the plural (and vice versa);

(f) a person includes any individual, firm, corporation, unincorporated association, government, state or agency of state, association, partnership or joint venture (whether or not having a separate legal personality);

(g) a person includes a reference to that person’s legal personal representatives and successors;

(h) references to a company shall be construed so as to include any company, corporation or other body corporate wherever and however incorporated or established;

(i) a document is to that document as varied, supplemented or replaced from time to time;

(j) any English statutory provision or English legal term for any action, remedy, method of judicial proceeding, documents, legal status, court, official or any other legal concept or thing shall in respect of any jurisdiction other than England be deemed to include what most nearly approximates in that jurisdiction to the English statutory provision or English legal term;

(k) writing shall include any modes of reproducing words in a legible and non-transitory form;

(l) Sterling or £ or pounds is to the lawful currency of the United Kingdom; and

(m) a time of the day is to London time and references to a day are to a period of 24 hours running from midnight to midnight.

1.4 No restrictive interpretations

In this Agreement, general words shall not be given a restrictive interpretation by reason of their being preceded or followed by words indicating a particular class of acts, matters or things.

1.5 CA 1985 definitions

In this Agreement, unless the context otherwise requires any word and expression defined in the CA 1985 and not defined in this Agreement shall bear the meaning ascribed to it in the CA 1985.

2. SALE AND PURCHASE

2.1 Share Sale and Purchase

The Vendor will sell with full title guarantee, and the Purchaser will buy, the Shares. The Shares will be sold free of any Encumbrance and with all rights attached or accruing to them at Completion.

2.2 The Vendor shall procure the waiver of all restrictions on transfer which may exist in relation to the Shares.

2.3 Consideration

The Consideration for the sale of the Shares is an aggregate sum of £7,239,132 (seven million, two hundred and thirty-nine thousand one hundred and thirty-two pounds) which shall be satisfied as to:

2.3.1 £5,239,132 by payment in cash on Completion (in accordance with Schedule 5) but subject to adjustment as provided in Schedule 8;

2.3.2 £1,000,000 by payment in cash on the date falling 6 months after Completion; and

2.3.3 £1,000,000 by payment in cash on the date falling 12 months after Completion;

the sums referred to in clause 2.3.2 and 2.3.3 (forming the Retention Fund) shall both be paid into the Escrow Account on Completion and released from the Escrow Account in accordance with the terms of Schedule 9 and the Escrow Account Instruction Letter.

2.4 If any of the Retention Fund becomes payable to the Purchaser in accordance with the provisions of Schedule 9, the Consideration will be reduced by the amount paid (excluding any interest paid as part of such sum) and any rights of the Purchaser to compensation or indemnity arising from the subject matter of the claim that gave rise to such payment will also be reduced by the amount so paid.

3. COMPLETION

3.1 Completion

Completion will take place at the offices of the Vendor’s Solicitors in London immediately after the signing of this Agreement.

3.2 Completion arrangements

At Completion, the Vendor and the Purchaser will comply with the provisions of Schedule 5.

3.3 Payment

The Vendor’s Solicitors are authorised to receive the Consideration on behalf of the Vendor and payment to them will be a good and sufficient discharge to the Purchaser and the Purchaser will not be further concerned as to the application of the moneys so paid.

4. WARRANTIES

4.1 Warranties

As at the date of this Agreement the Vendor warrants to the Purchaser in the terms of the Warranties, provided however that the Purchaser will not be entitled to claim that any fact or combination of facts constitutes a breach of any of the Warranties to the extent such fact or facts are fairly disclosed in the Disclosure Letter.

4.2 The Vendor accepts that the Purchaser is entering into this Agreement in reliance on the Warranties.

4.3 Limitation on Claims

Notwithstanding any other provisions of this Agreement, the liability of the Vendor for breach of the Warranties or otherwise pursuant to this Agreement (except with respect to any breach by the Vendor or any Member of the Vendor’s Group of the provisions of clause 8 or clause 23 of this Agreement or any liability or payment pursuant to clause 7.3 or Schedule 8) will be excluded and/or limited in accordance with the provisions of Schedule 7. For the avoidance of doubt, in relation to any claim by the Purchaser under the provisions of clause 24, the provisions of Schedule 7 shall apply only to the extent expressly set out in clause 24.

4.4 Certain Warranties specific

The only Warranties given:

4.4.1 in respect of Intellectual Property are those set out in Schedule 3, Paragraph 9 (Intellectual Property) and the other Warranties shall be deemed not to be given in relation to Intellectual Property;

4.4.2 in respect of employment and related matters are those set out in Schedule 3, Paragraph 12 (Remuneration and Employees) and the other Warranties shall be deemed not to be given in relation to employment and related matters;

4.4.3 in respect of the Properties are those set out in Schedule 3, Paragraph 11 (Property) and the other Warranties shall be deemed not to be given in relation to the Properties; and

4.4.4 in respect of Taxation are those set out in Schedule 4, Part 3 (Tax Warranties) and the other Warranties shall be deemed not to be given in relation to Taxation.

4.5 Meaning of “so far as the Vendor is aware”

Where any of the Warranties are expressed to be given “so far as the Vendor is aware” or “to the best of the knowledge, information and belief of the Vendor” or “the Vendor is not otherwise aware” or words to that effect, these expressions shall mean that the Vendor has only made reasonable enquiries of those persons listed in Schedule 10 and the Vendor shall be deemed only to have knowledge of all facts, matters and circumstances actually known by such persons and such expressions shall not have imported to them any wider meaning or interpretations or be deemed to include enquiries or actual awareness of any additional persons.

4.6 Each of the Warranties shall be separate and independent and shall not be limited by reference to the terms of any other warranty or, except as provided in clause 4.3 and Schedule 7, any other term of this Agreement.

4.7 No right of rescission

Except in the case of fraud, the Purchaser acknowledges that it shall have no right to rescind this Agreement after the Completion Date in any circumstances and that the sole remedy of the Purchaser for breach of the Warranties shall be damages and the Purchaser irrevocably waives any other remedies it may have in relation to a breach of the Warranties after Completion.

4.8 The Vendor and the Vendor’s Guarantor hereby waive any and all claims (except any claims arising out of or in respect of fraud) which they might otherwise have against the Company or any of the Subsidiaries or against any officer, employee or agent of any of them in respect of any information supplied by or on behalf of the Company or on behalf of any of the Subsidiaries (or by any officer, employee or agent of any of them) to the Vendor and/or the Vendor’s Guarantor or their advisers in connection with the Warranties or any other matter the subject of this Agreement.

5. PROVISIONS RELATING TO THE USE OF COMPANY NAME

The Purchaser acknowledges that the Vendor will retain all rights to the company name VIA (“the Name”) subject only to any licence granted to the Purchaser pursuant to the TSA.

6. PURCHASER’S WARRANTIES AND VENDOR’S WARRANTIES

6.1 Warranties

The Purchaser and the Guarantor respectively warrant to the Vendor that:

6.1.1 the Purchaser and the Guarantor each has full power to enter into and perform this Agreement and this Agreement constitutes valid and binding obligations on the Purchaser and the Guarantor in accordance with its terms;

6.1.2 the Purchaser is entering into this Agreement on its own behalf and not on behalf of any other person;

6.1.3 the execution and delivery of, and the performance by the Purchaser and the Guarantor of their respective obligations under this Agreement will not:

(a) result in a breach of any statutory provision or regulation applicable to it or any provision of its memorandum or articles of association;

(b) result in a breach of any order, judgment or decree of any court or governmental agency to which the Purchaser and/or the Guarantor is a party or by which the Purchaser and/or the Guarantor is bound; or

6.1.4 save as provided in this Agreement all consents, permissions, approvals and agreement of shareholders of the Purchaser and/or the Guarantor and/or any other third parties which are necessary or desirable for the Purchaser or the Guarantor to obtain in order to enter into and perform this Agreement in accordance with its terms have been unconditionally obtained.

6.2 Purchaser’s acceptance

The Purchaser accepts that the Vendor is entering into this Agreement in reliance on the warranties set out in clause 6.1 (Warranties).

6.3 Vendor’s Warranties

The Vendor and the Vendor’s Guarantor respectively warrant to the Purchaser that:

6.3.1 the Vendor and the Vendor’s Guarantor each has full power to enter into and perform this Agreement and this Agreement constitutes valid and binding obligations on the Vendor and the Vendor’s Guarantor in accordance with its terms;

6.3.2 the Vendor is entering into this Agreement on its own behalf and not on behalf of any other person;

6.3.3 the execution and delivery of, and the performance by the Vendor and the Vendor’s Guarantor of their respective obligations under this Agreement will not:

(a) result in a breach of any statutory provision or regulation applicable to it or any provision of its memorandum or articles of association;

(b) result in a breach of any order, judgment or decree of any court or governmental agency to which the Vendor and/or the

Vendor’s Guarantor is a party or by which the Vendor and/or the Vendor’s Guarantor is bound; or

6.3.4 save as provided in this Agreement all consents, permissions, approvals and agreement of shareholders of the Vendor and/or the Vendor’s Guarantor and/or any other third parties which are necessary or desirable for the Vendor or the Vendor’s Guarantor to obtain in order to enter into and perform this Agreement in accordance with its terms have been unconditionally obtained.

7. PURCHASER’S UNDERTAKINGS, VENDOR ASSURANCES AND COMPANY ASSURANCES

7.1 No rights

The Purchaser agrees and undertakes on behalf of itself and each other Member of the Purchaser’s Group that (in the absence of fraud) it has no rights against and shall not make any claim against any adviser, agent, director, officer, employee or consultant of any Member of the Vendor’s Group on whom it may have relied before agreeing to any term of this Agreement or any other agreement or document referred to herein or entering into this Agreement or any other agreement or document referred to in this Agreement.

7.2 Vendor Assurances

The Purchaser undertakes to indemnify the Vendor against all amounts paid by the Vendor or any Member of the Vendor’s Group to any third party pursuant to any Vendor Assurance (and all costs incurred in connection with such obligation) arising after the date of this Agreement save that this indemnity shall not extend to any matter giving rise to a claim (as defined in Schedule 7).

7.3 Company Assurances

The Vendor undertakes to indemnify the Purchaser against all amounts paid by the Purchaser or the Company or any Subsidiary to any third party pursuant to any Company Assurance (and all costs incurred in connection with such obligation) arising after the date of this Agreement. The provisions of Schedule 7 shall not apply to this clause 7.3.

8. RESTRICTIVE COVENANTS

8.1 Definitions

In this clause:

“Confidential Information”

means all information of a confidential nature which is not publicly known and is used in and relates to the Group’s business, customers, or financial or other affairs, including any such

	information relating to:

	(a)		trade secrets, know-how, ideas, computer systems and computer software;

	(b)		future projects, business development or planning, commercial relationships and negotiations; and

	(c)		the marketing of goods or services including customer names and lists, sales targets and statistics

“European Customer”	means a client or customer of the Vendor’s Group from time to time receiving services from any Member of the Vendor’s Group in Continental Europe which also has a requirement for Relevant Services in the Prohibited Area

“Excluded Customers”	means, as at 9 August 2004, all and any customer or customers of the Vendor’s Group having offices within or being provided with products or services within, the Prohibited Area and for the avoidance of doubt the Vendor’s Group includes PSINet Europe

“Permitted Activities”	means:

	(a)	the sale or supply of any products or services to Excluded Customers; and/or

	(b)	the conduct of any business activity (whether within the Prohibited Area or not) via the internet; and/or

	(c)	the provision of services normally associated with a hosting business (whether within the Prohibited Area or not) including, but not limited to managed and unmanaged services such as web site and application hosting, domain names, web-mail, anti-spam, anti-virus, and associated back-up and security services

“Prohibited Area”	means the United Kingdom of Great Britain and Northern Ireland

“Relevant Customer”	means any person who at Completion is:

	(a)	identified as a prospect of the Company in the “Sales Radar” sales pipeline tool of the Vendor on the report produced for the period ended 1 September 2004 and attached hereto as Schedule 11; or

	(b)	a current client or customer of the Company

“Relevant Services”	any business (other than the Permitted Activities) carried on as at Completion by the Company within the Prohibited Area

“Vendor’s Confidential Information”	means all information of a confidential nature which is not publicly known and is used in and relates to the Vendor Group’s businesses, customers, or financial or other affairs, including any such information relating to:

	(d)		trade secrets, know-how, ideas, computer systems and computer software;

	(e)		future projects, business development or planning, commercial relationships and negotiations; and

	(f)		the marketing of goods or services including customer names and lists, sales targets and statistics.

	and for the avoidance of doubt the Vendor’s Group includes PSI Net Europe

8.2 Vendor’s Covenant

The Vendor undertakes to the Purchaser and the Company that the Vendor will not (whether alone or in conjunction with, or on behalf of, another person and whether directly or indirectly), without the prior written consent of the Purchaser:

8.2.1 for a period of 12 months immediately following Completion, provide, in competition with the Company, any of the Relevant Services, within the Prohibited Area provided that the Vendor may (whether alone or in conjunction with, or on behalf of, another person) in competition with the Company provide to a European Customer Relevant Services within the Prohibited Area if the Company has been given the opportunity by the Vendor to provide the Relevant Services to such European Customer and has either declined such opportunity or been unable to provide the Relevant Services at rates competitive in the market;

8.2.2 for a period of 12 months immediately following Completion, use any Confidential Information to solicit or entice away, or knowingly cause to be

solicited or enticed away, any Relevant Customer for the supply to them of Relevant Services within the Prohibited Area;

8.2.3 for a period of three years after Completion, knowingly interfere, or seek to interfere, with the continuance of supplies to the Company from any supplier who has been supplying goods or services to the Company at any time during the 6 months immediately preceding Completion if such interference causes or would cause that supplier to cease supplying, or reduce its supply of, those goods or services;

8.2.4 for a period of 12 months immediately following Completion, solicit or entice away, or endeavour to solicit or entice away, from the Company, any person employed in a managerial, supervisory, technical or sales capacity by the Company at Completion or at any time during the period of 6 months immediately preceding Completion where the person in question either has Confidential Information or would be in a position to exploit the Company’s trade connections save in response to a national advertising campaign or in response to a recruitment consultant who has not been instructed by the Vendor’s Group to pursue or solicit such person and provided that the restrictions contained in this clause 8.2.4 shall not apply to:

8.2.4.1 any employee of the Company whose employment is terminated by the Company on or after Completion; and

8.2.4.2 Johnno Loggie and Xxx Xxxxx.

8.3 Confidentiality

8.3.1 Except so far as required by law or, to the extent relevant, the regulations of any Recognised Investment Exchange or the Panel on Takeovers and Mergers or any other governmental or regulatory organisation (and in those circumstances the Vendor shall as soon as reasonably practicable after any such announcement or filing produce a copy thereof to the Purchaser), the Vendor undertakes to the Purchaser and the Company that the Vendor will not, and will procure that no Member of the Vendor’s Group will, at any time after Completion:

8.3.1.1 disclose any Confidential Information to any person except to those authorised by the Company to know and except to those employees, third parties and contractors required to know in order to perform the services described in the TSA;

8.3.1.2 use any Confidential Information for the Vendor’s own purposes or for the purposes of the Vendor’s Group or for any purposes other than those of the Company or any other Member of the Purchaser’s Group; or

8.3.1.3 cause or permit any unauthorised disclosure of any Confidential Information.

PROVIDED THAT notwithstanding the foregoing, the Purchaser acknowledges that the Vendor is required under the rules of the applicable Recognised Investment Exchange to provide and file publicly historical financial information, including historical financial information of the Company as a “discontinued operation”, whether individually or in aggregate with other such discontinued operations of the Vendor and the Purchaser agrees and acknowledges that any such filing shall not be a breach of the foregoing provisions of this clause and further agrees that the Vendor shall not be required to deliver a copy of such filings to the Purchaser unless Company specific and identifiable Confidential Information is set out therein apart and individually.

8.3.2 Except so far as required by law or, to the extent relevant, the regulations of any Recognised Investment Exchange or listing authority or the Panel on Takeovers and Mergers or any other governmental or regulatory organisation (and in those circumstances the Purchaser shall as soon as reasonably practicable after any such announcement or filing produce a copy thereof to the Vendor), the Purchaser undertakes to the Vendor that the Purchaser will not, and will procure that no Member of the Group or the Purchaser’s Group will, at any time after Completion:

8.3.2.1 disclose any Vendor’s Confidential Information to any person except to those authorised by the Vendor to know;

8.3.2.2 use any Vendor’s Confidential Information for the Purchaser’s own purposes or for the purposes of the Group or the Purchaser’s Group or for any purposes other than those of the Vendor’s Group; or

8.3.2.3 cause or permit any unauthorised disclosure of any Vendor’s Confidential Information.

8.4 Severability

Each of the undertakings set out in this clause is separate and severable and enforceable accordingly, and if any one or more of such undertakings or part of an undertaking is held to be against the public interest or unlawful or in any way an unreasonable restraint of trade, the remaining undertakings or remaining part of the undertakings will continue in full force and effect and will bind the Vendor.

9. ANNOUNCEMENTS

9.1 No Announcements

No announcement or circular concerning the transactions contemplated by this Agreement or any matter ancillary to it and no disclosure of the terms of this Agreement will be made by the Vendor other than to another member of the Vendor’s Group, except with the prior written approval of the Purchaser or by the Purchaser except with the prior written approval of the Vendor (such approval in either of such cases aforesaid not to be unreasonably withheld or delayed).

9.2 Permitted Announcements

Clause 9.1 (No announcements) does not apply to:

9.2.1 any announcement, circular or disclosure required by law or, to the extent relevant, the regulations of any Recognised Investment Exchange or listing authority or the Panel on Takeovers and Mergers, or any other governmental or regulatory organisation, provided, if practicable, that the party required to make it has first consulted and taken into account the reasonable requirements of the other party; or.

9.2.2 any announcement after Completion by any party to its employees or in the case of the Purchaser any correspondence with customers of the Group or the Purchaser’s Group.

10. COSTS

Each party to bear own costs

Except where expressly stated otherwise, each party to this Agreement will bear its own costs and expenses relating to the negotiation, preparation and implementation of this Agreement. The Purchaser shall promptly pay all stamp duty, stamp duty reserve tax, transfer or registration taxes or duties payable in respect of the transfer of the Shares pursuant to this Agreement.

11. INTEREST

Save as otherwise specifically provided interest shall be payable by any party on any money which shall not be paid by it to another party under this Agreement by the due date for payment at the annual rate of 2 per cent. above the Interest Rate for the period from the date due for payment until the date on which it shall actually be paid (whether before or after any judgement). Interest shall be accrued daily and compounded annually.

12. GUARANTEES

12.1 In consideration of the Purchaser entering into this Agreement, the Vendor’s Guarantor irrevocably guarantees to the Purchaser the due and punctual payment, observance and performance by the Vendor of all of the Vendor’s liabilities and obligations (whether present or future, express or implied, actual or contingent) under or arising out of this Agreement, including any liability or obligation to pay damages or other compensation for any breach of any of the Warranties or to pay sums due and payable (but unpaid by the Vendor) under Schedule 4.

12.2 The Purchaser will be obliged before exercising any of the rights, powers or remedies conferred upon it in respect of the Vendor’s Guarantor under this clause or by law to make demand of the Vendor and allow the Vendor 10 Business Days from demand to comply with such demand but will not be obliged to institute any action or proceedings against the Vendor or make or file any claim or proof in connection with the insolvency of the Vendor or any other person. Following the expiry of such 10 Business Day period, the Vendor’s Guarantor will, forthwith on demand by the

Purchaser, unconditionally pay to the Purchaser an amount equal to the amount payable by the Vendor.

12.3 Neither the liability of the Vendor’s Guarantor under this clause nor the rights, powers and remedies conferred on the Purchaser under this clause or by law will in any way be released, prejudiced, diminished or affected by the insolvency, incapacity, disability, or any change in the constitution, name, control or style of the Vendor, the Purchaser, the Company or the Vendor’s Guarantor or the Guarantor.

12.4 The obligations of the Vendor’s Guarantor shall constitute and be continuing obligations and in particular shall not be considered satisfied by any intermediate payment or other intermediate satisfaction of all or any of the liabilities and obligations of the Vendor under this Agreement and shall continue in full force and effect until final payment in full of all amounts owing by the Vendor in total satisfaction of all the Vendor’s actual obligations under this Agreement.

12.5 The Vendor’s Guarantor shall not be exonerated or discharged nor shall its liability be affected by any forbearance, whether as to payment, time, performance or otherwise, or by any other indulgence being given to the Vendor or by any variation of the terms of this Agreement or by any act, thing, omission or means whatever which, but for this provision, might operate to exonerate or discharge the Vendor’s Guarantor from its obligations under the guarantee and indemnity contained in this Clause 12.

12.6 In consideration of the Vendor entering into this Agreement, the Guarantor irrevocably guarantees to the Vendor the due and punctual payment, observance and performance by the Purchaser of all of the Purchaser’s liabilities and obligations (whether present or future, express or implied, actual or contingent) under or arising out of this Agreement, including any liability or obligation to pay the Consideration or any sum due under Schedule 8.

12.7 The Vendor will be obliged before exercising any of the rights, powers or remedies conferred upon it in respect of the Guarantor under this clause or by law to make demand of the Purchaser and allow the Purchaser 10 Business Days from demand to comply with such demand but will not be obliged to institute any action or proceedings against the Purchaser or make or file any claim or proof in connection with the insolvency of the Purchaser or any other person. Following the expiry of such 10 Business Day period, the Guarantor will forthwith on demand by the Vendor, unconditionally pay to the Vendor an amount equal to the amount payable by the Purchaser.

12.8 Neither the liability of the Guarantor under this clause nor the rights, powers and remedies conferred on the Vendor under this clause or by law will in any way be released, prejudiced, diminished or affected by the insolvency, incapacity, disability, or any change in the constitution, name, control or style of, the Purchaser, the Vendor, the Company, the Vendor’s Guarantor, or the Guarantor.

12.9 The obligations of the Guarantor shall constitute and be continuing obligations and in particular shall not be considered satisfied by any intermediate payment or other intermediate satisfaction of all or any of the liabilities and obligations of the Purchaser under this Agreement and shall continue in full force and effect until final

payment in full of all amounts owing by the Purchaser in total satisfaction of all the Purchaser’s actual obligations under this Agreement.

12.10 The Guarantor shall not be exonerated or discharged nor shall its liability be affected by any forbearance, whether as to payment, time, performance or otherwise, or by any other indulgence being given to the Purchaser or by any variation of the terms of this Agreement or by any act, thing, omission or means whatever which, but for this provision, might operate to exonerate or discharge the Guarantor from its obligations under the guarantee and indemnity contained in this Clause 12.

13. PAYMENTS

Payments to be made without set off or withholding

All payments to be made by any party under this Agreement shall (unless and save where expressly provided otherwise) be made in full without any set-off, restriction or condition or deduction for or on account of any counter-claim and free from any deduction or withholding save where expressly provided otherwise or save as may be required by law in which event the deduction or withholding will not exceed the minimum amount which it is required by law to deduct or withhold and the payer will simultaneously pay to the payee such additional amounts as will result in the receipt by the payee of a net amount equal to the full amount which would otherwise have been receivable had no deduction or withholding been required.

14. NOTICES

14.1 Methods

Any notice or other communication given in connection with this Agreement will be in writing and will be delivered personally or sent by pre-paid first class post (or air mail if overseas) or by fax to the recipient’s address set out in this Agreement or to any other address which the recipient has notified in writing to the sender received not less than 7 Business Days before the notice was despatched.

14.2 Date Given

A notice or other communication is deemed given:

14.2.1 if delivered personally, upon delivery at the address provided for in this clause; or

14.2.2 if sent by prepaid first class post, on the second Business Day after posting it; or

14.2.3 if sent by air mail, on the sixth Business Day after posting it; or

14.2.4 if sent by fax, on completion of its transmission

provided that, if it is delivered personally or sent by fax on a day which is not a Business Day or after 4 p.m. on a Business Day, it will instead be deemed to have been given or made on the next Business Day.

14.3 Court Service

The provisions of this clause will not apply, in the case of service of court documents, to the extent that such provisions are inconsistent with the Civil Procedure Rules.

14.4 Other Method of Service

Service of a notice or other communication on the Vendor may be effected as specified in clause 25.3 (Valid service).

15. ENTIRE AGREEMENT

Each of the parties hereto acknowledge and agree that:

15.1 this Agreement, each of the Transaction Documents and any documents entered into pursuant thereto sets forth the entire agreement between the parties with respect to the subject matter covered by this Agreement and the Transaction Documents and supersedes and replaces all prior communications, drafts, representations, warranties, stipulations, undertakings and agreements of whatsoever nature, whether oral or written, between the parties relating thereto;

15.2 it does not enter into this Agreement in reliance on any warranty, representation, undertaking, stipulation or agreement other than those contained in this Agreement, each of the Transaction Documents and any documents entered into pursuant thereto;

15.3 its only remedies are for specific performance, injunctive relief and/or contractual damages for breach of contract;

15.4 it has no right to rescind this Agreement either for breach of contract or for negligent or innocent misrepresentation;

15.5 without prejudice to the generality of the foregoing, they each waive any right or remedy it may have against any other in respect of any statement (whether oral or written) of fact or opinion whatsoever, including any untrue or misleading statement, warranty or representation, express or implied, made to them or their respective agents, officers, directors or employees during the negotiation of or otherwise in connection with this Agreement, save for any warranty, representation or undertaking expressly contained in this Agreement or any of the Transaction Documents or any of the documents entered into pursuant thereto;

15.6 the Consideration has been agreed by the Vendor and the Purchaser having regard (inter alia) to the provisions of this clause 15 (Entire Agreement); and

15.7 accordingly, all other conditions representations and warranties which would otherwise be implied (by law or otherwise) shall not form part of this Agreement

PROVIDED THAT the provisions of this clause 15 (Entire Agreement) will not exclude any liability which the Vendor would otherwise have to the Purchaser or which the Purchaser would otherwise have to the Vendor or any right which either of them may have to rescind this Agreement in respect of any statements made fraudulently by the other of them prior to the execution of this Agreement.

16. CONTINUING EFFECT

Each provision of this Agreement shall continue in full force and effect after Completion, except to the extent that a provision has been fully performed on or before Completion.

17. INVALIDITY

If all or any part of any provision of this Agreement shall be or become illegal, invalid or unenforceable in any respect, then the remainder of such provision and/or all other provisions of this Agreement shall remain valid and enforceable.

18. AMENDMENTS, VARIATIONS AND WAIVERS

18.1 Amendments

No amendment or variation of the terms of this Agreement or any of the Transaction Documents shall be effective unless it is made or confirmed in a written document signed by all of the parties to the relevant document but no variation will require the consent or signature of the Company.

18.2 Waivers

No delay in exercising or non-exercise by any party of any right, power or remedy under or in connection with this Agreement or any other document referred to in it shall impair that right, power or remedy or operate as a waiver or release of it.

19. FURTHER ASSURANCE AND ASSISTANCE

19.1 Further assurance

The Vendor shall from time to time at its own cost, on being required to do so by the Purchaser now or at any time within twelve (12) months after Completion, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form reasonably satisfactory to the Purchaser as the Purchaser may reasonably consider necessary for vesting title to the Shares in the Purchaser. To the extent that the Purchaser requires the doing of acts or the execution of documents by the Vendor after the expiry of such twelve (12) month period then such acts or execution shall be at the expense of the Purchaser.

19.2 Third Party Rights

The Company has the right to enforce only clause 8 (Restrictive Covenants) of this Agreement and in accordance with the provision of the Contracts (Rights of Third Parties) Xxx 0000. Except as stated in this clause, the parties to this Agreement do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Xxx 0000 by any person not a party to it.

19.3 Books and records

Without prejudice to the provisions of the TSA, as from the Completion Date, the Purchaser shall give to the Vendor such reasonable access during normal working

hours to the books, accounts, records and returns relating to or in connection with the Company as the Vendor may reasonably require in order to prepare and complete its tax returns and/or comply with other regulatory requirements including the right to take copies and extracts (at the Vendor’s cost) on reasonable advance notice within the period of seven calendar years from the Completion Date.

20. COUNTERPARTS

20.1 Any number of counterparts

This Agreement may be executed in any number of counterparts, and by the parties on separate counterparts, but shall not be effective until each of the parties has executed at least one counterpart.

20.2 Each counterpart an original

Each counterpart shall constitute an original of this Agreement but all the counterparts shall together constitute but one and the same instrument.

21. ASSIGNMENT

21.1 Agreement binding on successors and permitted assignees

This Agreement shall be binding on and enure for the benefit of the successors and permitted assignees of the parties.

21.2 Benefit of agreement not assignable by Purchaser

The benefit of this Agreement may not be assigned, transferred, charged or dealt in (whether by way of security, trust or otherwise) either in whole or in part to any person by the Purchaser or the Guarantor except as provided in clause 21.3 (Permitted assignments).

21.3 Permitted assignments

The Purchaser may assign all or any of its rights under this Agreement:

(a) with the Vendor’s prior written consent to any person;

(b) without the Vendor’s consent to one or more Members of the Purchaser’s Group subject to the condition that the Purchaser will procure that, before any assignee subsequently ceases to be a Member of the Purchaser’s Group, that assignee shall assign back to the Purchaser, or to another Member of the Purchaser’s Group (which itself shall then be deemed to be an assignee of the Purchaser for the purposes of this clause), so much of the benefit of this Agreement as has been assigned to it;

(c) without the Vendor’s consent, by way of security to a lender in connection with any arrangements for the provision of acquisition finance by that lender to the Purchaser to facilitate it

to purchase the Company (or to another lender on a re-financing of that acquisition facility),

PROVIDED THAT the liability of the Vendor as a result of the assignment shall not be greater than its liability had no assignment occurred and that any purported assignment in contravention of this clause shall be void.

21.4 No assignment by Vendor

Neither the Vendor nor the Vendor’s Guarantor may assign all or any of their respective rights under this Agreement to any person without the Purchaser’s prior written consent.

22. KP CLAIM

22.1 Indemnity

The Vendor shall be responsible for, and shall indemnify and keep indemnified the Purchaser (for itself and as trustee for the Purchaser’s Group) against, all costs, losses, damages, liabilities and expenses incurred by the Company or any other Member of the Purchaser’s Group pursuant to the KP Claim and KP Counterclaim.

22.2 Conduct of KP Claim/Counterclaim

22.2.1 The Vendor shall at all times have exclusive conduct of both the KP Claim and the KP Counterclaim and shall be entitled at any stage and at its sole discretion to settle either or both of the KP Claim and the KP Counterclaim.

22.2.2 In the conduct of the KP Claim and/or the KP Counterclaim the Vendor shall, or shall procure that the Vendor’s Guarantor shall, instruct direct all professional advisers necessary to represent the Company such that the Company will have no liability to such advisers for any costs or expenses incurred by them.

22.3 Purchaser’s Conduct

22.3.1 The Purchaser will (or will procure that the Company will):

22.3.1.1 as soon as reasonably practicable notify the Vendor in writing of any written notification or correspondence received by the Company or the Purchaser from any party (other than any Member of the Vendor’s Group) involved in the KP Claim and KP Counterclaim;

22.3.1.2 not make any admission of liability, agreement or compromise with any person, body or authority in relation to the KP Claim or KP Counterclaim;

22.3.1.3 upon written request by the Vendor give the Vendor and its professional advisers reasonable access on reasonable prior notice to:

(a) the personnel of the Purchaser and/or the Company in order to interview the personnel;

(b) any relevant premises, chattels, accounts, documents and records within the power, possession or control of the Purchaser and/or the Company in order to, at the Vendor’s own expense, examine and photograph and take copies of the accounts, documents and records.

22.4 Payment

22.4.1 In the event of the KP Claim being Settled (as defined below) the Vendor shall pay to the Company within 7 days of the KP Claim being Settled (and in any event before the due date for any payment by the Company) a sum equal to any amount to be paid by the Company pursuant to the Settlement of the KP Claim less any sum received by the Company pursuant to sub-clause 22.4.2. The Purchaser shall be entitled in its sole discretion to require that any such payment by the Vendor be met by the release of funds from the Escrow Account. The Purchaser shall procure that the terms of such Settlement in so far as it relates to the Company are fully complied with provided that the Company is placed in funds by any Member of the Vendor’s Group to make any payment pursuant to such Settlement.

22.4.2 In the event of the KP Counterclaim being Settled the Purchaser shall pay to the Vendor by way of additional consideration for the Shares an amount equal to the sum received by the Company (if any) as part of the Settlement of the KP Counterclaim less any payment to be made by the Vendor pursuant to clause 22.4.1, such sum to be paid within 7 days of receipt by the Company of such sum.

22.5 The KP Claim and the KP Counterclaim shall be regarded as “Settled” for the purpose of Clause 22.4 if either:

22.5.1 the Vendor and the other parties to the KP Claim and/or the KP Counterclaim shall so agree in writing; or

22.5.2 a Court has awarded judgement in respect of the KP Claim or the KP Counterclaim and either no right of appeal lies in respect of such judgement or the parties are debarred whether by passage of time or otherwise from exercising any such right of appeal.

23. CASH

23.1 The Vendor will procure that immediately following the Completion Accounts Date, the Company has Cash (as defined in Schedule 8) of not less than £739,132.

23.2 The provisions of Schedule 7 shall not apply to the Vendor’s obligation under this clause 23.

24. INDEMNITIES AND COMPUTER EQUIPMENT

24.1 The Vendor shall indemnify and keep indemnified the Purchaser (for itself and as

trustee for the Purchaser’s Group) against all costs, loss, damages, liabilities and expenses incurred as a result of:

24.1.1 any claim brought by former employees of the Group for breach of contract arising out of any redundancies or purported redundancies made in April and May 2004, details of which are set out in the Disclosure Letter;

24.1.2 any claim which may be made by Xxxx Xxxxxx Xxxxxx whose resignation from office the Vendor is obliged to procure in order to comply with this Agreement or claims by Xxxx Xxxxxxxxx for payment of the “Special Retention Bonus” as defined in the Addendum to his employment contract dated 24 June 2004 or arising from Xxxx Xxxxxxxxx ceasing to be a director of the Company (including, in particular, any claim for constructive dismissal arising therefrom), but otherwise this indemnity shall not cover any liability relating to Xxxx Xxxxxxxxx ceasing to be an employee of the Company;

24.1.3 any claim made against the Company by Microsoft as a result of the Company’s failure to comply with the Microsoft licensing requirements in the use of Microsoft Windows software in the provision by the Company to its customers prior to Completion of shared and managed hosting services;

24.1.4 any claim against the Company or U-Net Limited by British Aerospace plc for:

24.1.4.1 dilapidations as set out in the Disclosure Letter relating to Unit 620, 621 and 000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxx as demised by a lease dated 1 October 1999, details of which are set out in Schedule 6 (“the Lease”), provided that the Vendor will only be liable for the amount by which the claim exceeds £35,000;

24.1.4.2 any rent or other outgoings payable by the Company or U-Net Limited pursuant to the Lease to the extent such rent or other outgoings relate to the period after 1 October 2004,

subject to the Purchaser first paying all rents due and/or outstanding in relation to the period prior to 1 October 2004 and in relation to the properties described in clause 21.1.4.1 above

24.1.5 the failure by the Company to make an application for exemption from stamp duty pursuant to section 42 of the Finance Xxx 0000, as amended, (including any stamp duty payable and any penalties and interest for late payment) on the transfer of the trade and assets of the Subsidiaries to the Company (and of I-Way Oxford Limited to I-Way Limited) on 1 December 2000 (“the Reorganisation”) as referred to in the Disclosure Letter (“the Stamp Duty Indemnity”).

For the avoidance of doubt, the provisions of Schedule 7 shall apply mutatis mutandis to any claims under this clause 24.1 except as follows:

(i) paragraphs 2.2, 4.4.1 and 4.5 shall not apply to clause 24.1; and

(ii) paragraph 3 shall not apply to clause 24.1.4 although at such time as the dilapidations referred to above in clause 24.1.4.1 are paid by the Purchaser and reimbursed by the Vendor and/or the Vendor’s Guarantor (where upon the Purchaser covenants to the Vendor immediately to pay such sum to the Landlord under the Lease) any liability of the Vendor to the Purchaser pursuant to the provisions of clause 24.1.4 shall immediately cease.

24.2 The Purchaser shall be entitled at its sole discretion to require that any payment by the Vendor pursuant to clause 24.1 be met by the release of funds from the Escrow Account.

24.3 With regard to the indemnity in clause 24.1.4, the Purchaser undertakes to the Vendor that it shall not, and shall procure that the Company and U-Net Limited shall not, enter into any negotiations with the Landlord or communicate with the Landlord (save where the Landlord initiates the communication verbally) in relation to the validity or otherwise of the break notice served in respect of the Lease (as referred to in the Disclosure Letter) without the prior written consent of the Vendor, such consent not to be unreasonably withheld or delayed. The Purchaser shall, and shall procure that the Company and U-Net Limited shall, take such action as the Vendor may reasonably request in relation to any negotiations or communications with the Landlord under the Lease in relation to the validity of the break notice.

24.4 The following provisions shall apply in relation to the Stamp Duty Indemnity:

24.4.1 the Vendor shall procure that the Vendor’s Solicitors shall (at the Vendor’s cost), within 14 days of Completion, submit to the Inland Revenue an application pursuant to section 42 of the Finance Xxx 0000, as amended, for exemption from stamp duty in respect of the documents listed in Schedule 13 in respect of the Reorganisation and shall deal with any questions raised by the Inland Revenue in respect thereof until such time as the Inland Revenue shall have finally adjudicated on such application; and

24.4.2 the Purchaser shall, and shall procure that the Company and the Subsidiaries shall, give such assistance to the Vendor’s Solicitors (at the Vendor’s cost) as they shall reasonably request in order to make such application and to deal with any questions that the Inland Revenue may raise in connection with such application.

24.5 The Purchaser (for itself and as agent on behalf of each member of the Group) hereby acknowledges and agrees that the computer equipment listed in Schedule 12 is owned by Members of the Vendor’s Group and will procure that neither the Purchaser or any member of the Group will make any claim to title or ownership or to use of any such computer equipment.

25. GOVERNING LAW AND JURISDICTION

25.1 Governing law

This Agreement shall be governed by and construed in accordance with English law.

25.2 Jurisdiction

The parties irrevocably submit to the exclusive jurisdiction of the English Courts to settle any disputes which may arise out of or in connection with this Agreement and agree that accordingly any proceedings may only be brought in those courts.

25.3 Valid service

25.3.1 Each of the Vendor and the Vendor’s Guarantor irrevocably appoint the Vendor’s Solicitors as their process agent to receive on their behalf service of any process in any proceedings in England. Such service shall be deemed completion on delivery to the process agent, marked for the attention of Xxxxxx Xxxx (whether or not such process is forwarded to and received by the Vendor and the Vendor’s Guarantor). If for any reason such process agent ceases to be able or willing to act as process agent, the Vendor and the Vendor’s Guarantor irrevocably agree to appoint a substitute agent reasonably acceptable to the Purchaser and to deliver to the Purchaser a copy of the new process agent’s acceptance of that appointment within 30 days of such acceptance.

25.3.2 The Guarantor irrevocably appoints the Purchaser’s Solicitors as its process agent to receive on its behalf service of any process in any proceedings in England. Such service shall be deemed completion on delivery to the process agent, marked for the attention of Xxxxxx Xxxx (whether or not such process is forwarded to and received by the Guarantor). If for any reason such process agent ceases to be able or willing to act as process agent, the Guarantor irrevocably agrees to appoint a substitute agent reasonably acceptable to the Vendor and to deliver to the Vendor a copy of the new process agent’s acceptance of that appointment within 30 days of such acceptance.

EXECUTION

The parties have shown their acceptance of the terms of this Agreement by signing it at the end of the Schedules.

SCHEDULE 1

The Vendor

Name and address of registered owner		The Shares

VIA XXX.XXXXX EUROPE HOLDING B.V. of H. Walaardt Xxxxxxxxxxx 000, 0000 XX, Xxxxxxx-Xxxx, Xxxxxxxxx, Xxx Xxxxxxxxxxx		1 ordinary share of £1

SCHEDULE 2

PART 1

The Company

Name of Company	:	VIA XXX.XXXXX UK Limited

Registered number	:	03983189

Registered office	:	Senator House, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX

Date of incorporation	:	28/4/2000

Authorised share capital	:	£1000 divided into 1000 shares of £1 each

Issued share capital	:	£1 divided into 1 ordinary share of £1 each

Directors’ full names	:	Mr Xxxx Xxxxxx Xxxxxx

		Xx Xxxx Xxxxxxxxx

Secretary’s full name	:	Mr Xxxx Xxxxxx Xxxxxx

Accounting reference date	:	31/12

Mortgages/charges over Shares or Company’s assets	:	Rent deposit deed in favour of IM Properties (Nationwide) Limited in respect of a sum equal to £25,000 plus VAT deposited by the Company and all other sums from time to time constituting the deposit (including any interest) dated 2 May 2001

		Rent deposit deed in favour of The Queen’s Most Excellent Majesty in respect of all monies due or to become due from the Company to the chargee dated 7 May 2003.

PART 2

The Subsidiaries

Name of Company	:	Netlink Internet Services Limited

Registered number	:	3099479

Registered office	:	Eversheds House, 00 Xxxxx Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx X0 0XX

Date of incorporation	:	07/09/1995

Authorised share capital	:	£404 divided into 40,400 shares of £0.01 each

Issued share capital	:	£282.00 divided into 400 A ordinary and 27,800 B ordinary shares of £0.01 each

Directors’ full names	:	Mr Xxxx Xxxxxx Nydell VIA XXX.XXXXX UK Limited

Secretary’s full name	:	Mr Xxxx Xxxxxx Xxxxxx

Accounting reference date	:	31/12

Mortgages/charges over Shares or Company’s assets	:	None

Name of Company	:	I-Way Limited

Registered number	:	3029221

Registered office	:	Eversheds House, 00 Xxxxx Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx X0 0XX

Date of incorporation	:	06/03/1995

Authorised share capital	:	£200,000 divided into 200,000 shares of £1 each

Issued share capital	:	£74,514 divided into 26,789 A ordinary and 47,725 ordinary shares of £1 each

Directors’ full names	:	Mr Xxxx Xxxxxx Nydell VIA XXX.XXXXX UK LIMITED

Secretary’s full name	:	Mr Xxxx Xxxxxx Xxxxxx

Accounting reference date	:	31/12

Mortgages/charges over Shares or Company’s assets	:	None

Name of Company	:	U-Net Limited

Registered number	:	2952757

Registered office	:	Eversheds House, 00 Xxxxx Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, X0 0XX

Date of incorporation	:	26/07/1994

Authorised share capital	:	£10,000 divided into 1,000,000 shares of £0.01 each

Issued share capital	:	£5,000 divided into 500,000 shares of £0.01 each

Directors’ full names	:	Mr Xxxx Xxxxxx Nydell VIA XXX.XXXXX UK Limited

Secretary’s full name	:	Mr Xxxx Xxxxxx Xxxxxx

Accounting reference date	:	31/12

Mortgages/charges over Shares or Company’s assets	:	Rent deposit deed in favour of YORKSHIRE PROPERTY HOLDINGS LIMITED. created: 05/09/1996 registered: 13/09/1996 to secure all monies due or to become due from the company to the chargee under the terms of a lease of even date. Deposit of £10,000 plus VAT and all other sums from time to time constituting the same.

Name of Company	:	I-Way Oxford Limited

Registered number	:	3106468

Registered office	:	Eversheds House, 00 Xxxxx Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx X0 0XX

Date of incorporation	:	26/09/1995

Authorised share capital	:	£66,000 divided into 66,000 ordinary shares of £1 each

Issued share capital	:	£65,152 divided into 65,152 ordinary shares of £1 each

Directors’ full names	:	Mr Xxxx Xxxxxx Nydell I-Way Limited

Secretary’s full name	:	Mr Xxxx Xxxxxx Xxxxxx

Accounting reference date	:	31/12

Mortgages/charges over Shares or Company’s assets	:	None

Name of Company	:	WorldWide Web Services Limited

Registered number	:	3203253

Registered office	:	Eversheds House, 00 Xxxxx Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx X0 0XX

Date of incorporation	:	24/05/1996

Authorised share capital	:	£55,556 divided into 55,556 ordinary shares of £1 each

Issued share capital	:	£55,556 divided into 55,556 ordinary shares of £1 each

Directors’ full names	:	Mr Xxxx Xxxxxx Nydell VIA XXX.XXXXX UK Limited

Secretary’s full name	:	Mr Xxxx Xxxxxx Xxxxxx

Accounting reference date	:	31/12

Mortgages/charges over Shares or Company’s assets	:	None

SCHEDULE 3

The Warranties

1. Schedules 1 & 2; Capital

1.1 The Disclosure Letter has been prepared based on opinions actually and honestly held by the persons identified in Schedule 10 in relation to the information provided in the Disclosure Letter. The Disclosure Letter (excluding the Data Room documents) is, as far as the Vendor is aware, accurate in all material respects and the Data Room documents are true copies of documents of which they purport to be copies and are otherwise complete copies in all material respects of the original.

1.2 The information contained in Schedules 1, 2 and 6 is true, complete and accurate in all respects and the relevant information is set out for the Company and the Subsidiaries.

1.3 The Shares are fully paid and are beneficially owned and registered as set out in Schedule 1 and Part 1 of Schedule 2 free from any Encumbrance or any claim to, or Contract to grant, any Encumbrance.

1.4 The Company has not allotted or issued any share capital other than the Shares shown in Schedule 1 and Part 1 of Schedule 2 as being issued.

1.5 No Contract has been entered into which requires or may require the Company to allot or issue any share or loan capital and the Company has not allotted or issued any securities which are convertible into share or loan capital.

1.6 The Company has no interest in the share capital of any body corporate other than the Subsidiaries.

VENDOR

2. Insiders’ interests

For the purpose of this paragraph 2:

“Insider”

means the Vendor, any Member of the Vendor’s Group or any person who is connected (as defined in section 839 ICTA) with the Vendor or any Member of the Vendor’s Group.

2.1 There is not outstanding, and there has not at any time since 1 January 2003 been outstanding, any Contract to which the Company or any Subsidiary is a party and in which any Insider is interested in any way whatsoever (excluding any Contract of employment material particulars of which are disclosed in the Disclosure Letter and any agreement for the sale or supply of goods or services in the ordinary course of business on normal commercial terms material particulars of which are disclosed in the Disclosure Letter).

2.2 No Insider has any interest, direct or indirect, in any trade or business which competes or is likely to compete with the Company’s business save as an investor holding less than 3% of the issued share capital of a company whose shares are listed or dealt in on a Recognised Investment Exchange.

ACCOUNTS AND RECORDS

3. The Accounts

3.1 The Accounts (a copy of which is attached to the Disclosure Letter):

3.1.1 give a true and fair view of the state of affairs of the Company as at the Accounting Date and of the profits (or losses) of the Company for the Financial Year ended on that date;

3.1.2 have been prepared and audited in accordance with the historical cost convention, with all applicable law and Accounting Standards; and

3.1.3 have been prepared on bases and principles which are consistent with those used in the preparation of the audited statutory accounts of the Company for the 2 Financial Years immediately preceding that which ended on the Accounting Date.

4. Records

The Company’s accounting records have been properly kept in accordance with sections 221 and 222 CA 1985.

5. Management accounts

The Management Accounts have been honestly and carefully prepared on bases consistent in all material respects with those employed in the preparation of the previous management accounts of the Company for the same period in the previous Financial Year.

CHANGES SINCE THE ACCOUNTING DATE

6. General

6.1 Since the Accounting Date:

6.1.1 the business of the Company has been carried on in the ordinary and usual course and in the same manner (including nature and scope) as in the 12 months preceding the Accounting Date;

6.1.2 there are no debts outstanding from the Company to ordinary trade creditors which have been due for more than 60 days ;

6.1.3 the Company has not acquired, or agreed to acquire, any single capital asset having a value in excess of £20,000;

6.1.4 the Company has not disposed of, written off, or agreed to dispose of or

write off , any capital asset having a value reflected in the Accounts in excess of £20,000or acquired since the Accounting Date;

6.1.5 no loan made by the Company which remains outstanding has become due and payable in whole or in part;

6.1.6 the Company has not borrowed or raised any money or taken up any financial facilities and the Company has not repaid any borrowing or indebtedness in advance of its stated maturity;

6.1.7 the Company has not sold or agreed to sell a debt at less than its value in the Accounts and no debt has been released, deferred, subordinated or written off by the Company;

6.1.8 no dividend or other payment which is, or could be treated as, a distribution for the purposes of Part VI ICTA or section 418 ICTA has been declared, paid or made by the Company;

6.1.9 no resolution of the shareholders of the Company has been passed;

6.1.10 the Company has not changed its accounting reference date;

6.1.11 no management or similar charge has become payable or been paid by the Company;

6.1.12 no share or loan capital has been allotted, issued, repaid or redeemed or agreed to be allotted, issued, repaid or redeemed by the Company.

6.2 There is set out in the Disclosure Letter material particulars of those Material Contracts in respect of which the Company has since 1 January 2004 received from customers under such contracts effective notification of cancellation or non-renewal of such contracts.

ASSETS

7. Unencumbered title; possession

7.1 Each tangible asset included in the Accounts or acquired by the Company since the Accounting Date (save for stock disposed of or consumed in the ordinary course of business or assets acquired on retention of title terms which are not onerous or unusual) is, save as specifically disclosed in the Accounts or the Management Accounts, legally and beneficially owned by the Company free from any Encumbrance.

7.2 Every material tangible asset owned by the Company is situated at the Properties as at Completion except Customer Premises Equipment situated at customer sites or physical points of presence and assets owned by the Company at physical points of presence.

8. Debtors and Creditors

8.1 The Company has not made, or entered into any Contract to make, any loan to, or other arrangement with, any person as a result of which it is or may be owed any money, other than trade debts incurred in the ordinary course of business and cash at bank.

8.2 The Company is not entitled to the benefit of any debt otherwise than as the original creditor and the Company has not raised finance by factoring, deferring or discounting any debt or agreed to do so.

8.3 There is set out in document 40 of Volume 12 of the documents annexed to the Disclosure Letter a list of line entries which together constitute the creditors (other than ordinary trade creditors) of the Company as shown in the Accounts.

8.4 The Company has not entered into any contract pursuant to which it is obligated for any amount otherwise than as the original debtor.

8.5 Material particulars of all disputes between the Company and its creditors in respect of amounts of £20,000 or more due to such creditors are set out in the Disclosure Letter.

9. Intellectual Property

9.1 All Intellectual Property owned by the Company which is registered or the subject of an application for registration is listed and described in the Disclosure Letter. The Company has received no adverse written opinion from any registry in relation to any pending application.

9.2 In respect of registered Intellectual Property owned by the Company, all renewal and maintenance fees have been duly paid.

9.3 There are no proceedings, actions or claims to which the Company is a party and so far as the Vendor is aware, none are pending or threatened, impugning the title, validity or enforceability of the Company’s Intellectual Property.

9.4 As far as the Vendor is aware, there is, and has been, no infringement of the Company’s Intellectual Property.

9.5 Copies of all material licences, sub-licences and other material agreements whereby the Company is licensed or otherwise authorised to use the Intellectual Property of a third party or whereby the Company licenses or otherwise authorises a third party to use material Intellectual Property are attached to the Disclosure Letter. No notice has been given to terminate them, the obligations of the Company in respect of them have been complied with in all material respects and so far as the Vendor is aware the obligations of all other parties in respect of them have been complied with in all material respects.

9.6 The Disclosure Letter contains or has attached to it in the Data Room a full list of domain names which are registered in the name of the Company.

9.7 So far as the Vendor is aware, no deliberate action has been taken by the Company to diminish or otherwise adversely affect the reputation of any unregistered trade or service marks, trade, business or brand names owned by the Company.

9.8 The Company has not infringed and does not infringe any Intellectual Property of a third party as a result of the Company’s use or exploitation of the Company’s Intellectual Property nor will such use or exploitation give rise to any infringement, dispute, claims or proceedings against the Company.

9.9 There are not, and have not in the past 24 months been, any disputes, claims or proceedings threatened against the Company or in existence in any court or tribunal in respect of any of the Company Intellectual Property as such or in respect of any use or exploitation thereof by the Company.

10. Computer Systems

10.1 Copies of all licences and escrow agreements relating to Software material to the Company either individually or in the aggregate are attached to the Disclosure Letter. The licences of such Software have been complied with in all material respects in the operation of the business of the Company and any restrictions in those licences do not materially and adversely affect the present conduct of the business of the Company.

10.2 The Disclosure Letter contains accurate details of the Company’s current procedures with a view to security of the Computer Systems and data stored on them, and the Vendor considers those procedures to be prudent.

10.3 The Company has a sufficient number of employees who are technically competent and appropriately trained with a view to the proper operation and use of the Computer Systems.

10.4 So far as the Vendor is aware the data storage capability, functionality and performance of the Computer Systems are sufficient to conduct the Company’s business (as it is now conducted).

10.5 All Computer Systems are in working order.

10.6 The Company has full and unrestricted access to and use of the Computer Systems and no third party agreements or consents are required to enable the Company to continue such access and use following Completion.

10.7 The Company operates a documented procedure to avoid virus infections and unauthorised access.

10.8 All the Company’s operating data (being data materially required for the Company to be able to provide services to its customers, to xxxx such customers, pay its suppliers, manage and compensate its employees and maintain internal and external e-mail communications systems for its employees) has been regularly archived in soft copy form.

10.9 The Company has in its unencumbered possession or has unrestricted access to up-to-date and accurate source code for all bespoke Software which has been written or produced in-house by the Company.

PROPERTY

11. In this paragraph unless the context otherwise requires:

“Ancillary Document”		means any licence, deed, permission, approval, consent or other document supplemental to or otherwise associated with any Occupational Agreement or any Letting Document

“Lease”		means any lease or underlease (however inferior)

“Letting Document”		means any Lease, tenancy agreement, service occupancy, licence to occupy and other agreement or arrangement, together with any Ancillary Document, relating to the occupation or use of the Properties by any Occupational Tenant, whether oral or written

“Occupational Agreement”		means any Lease, tenancy agreement, service occupancy, licence to occupy and other agreement or arrangement, together with any Ancillary Document, relating to the occupation or use of the Properties by the Company, (whether oral or written)

“Occupational Tenant”		any tenant permitted to occupy any of the Properties pursuant to a Letting Document

“Rent”		includes licence fees, charges for occupation or use, mesne profits, damages for trespass and compensation for use and/or occupation

11.1 The Company does not own, is in occupation of or is entitled to any estate or interest in any freehold or leasehold property other than the Properties.

11.2 The Properties are held under the terms of the Occupational Agreements briefly referred to in Schedule 6 and no collateral assurances, undertakings or concessions have been made by any party to the Occupational Agreements.

11.3 There are no variations proposed to the Occupational Agreements nor are there any current applications for the consent of the landlord.

11.4 The Occupational Agreements are valid and in full force.

11.5 The Rent and all other sums payable under the Occupational Agreements have been paid to date.

11.6 Full copies of all documents of title to the Properties to which the Company is a party or which are in the possession of the Company have been disclosed in the Data Room.

11.7 The Company has complied in all material respects with the covenants, conditions and agreements in the Occupational Agreements.

11.8 The Company has not entered into either the lease of or a licence to assign relating to any leasehold property as a guarantor of the lessee’s covenants contained in any such document in respect of which the Company has a continuing commitment as guarantor.

11.9 The Company has not at any time assigned or disposed of or contracted to assign or dispose of any leasehold property of which it was first lessee without receiving a full and effective indemnity in respect of its liability under any such lease and so far as the Vendor is aware, there are no claims being made or threatened against the Company in its capacity as a prior lessee under any lease which has been assigned.

11.10 The Company is in physical possession and actual occupation of the whole of the Properties on an exclusive basis and no right of occupation or enjoyment has been acquired or so far as the Vendor is aware is in the course of being acquired by any third party or has been granted or agreed to be granted to any third party.

11.11 The Properties are free from any Encumbrance and the Company has not entered into any agreement or commitment to give or create any Encumbrance.

11.12 The Company has not received any written notice that it has failed to comply in any material respect with any applicable statutory and bye-law requirements relating to the Properties and in particular with all requirements under the Public Health Acts, the Offices, Shops and Railway Premises Xxx 0000, the Health and Safety at Work etc. Xxx 0000, the Control of Pollution Xxx 0000, the Environmental Protection Xxx 0000, the Environmental Protection Xxx 0000, the Construction (Design and Management) Regulations 1994 and all regulations, rules and delegated legislation thereunder and is not otherwise aware of any such material failure.

11.13 No dispute exists between the Company and the owner or occupier of any other premises adjacent to or neighbouring the Properties relating to the Properties and so far as the Vendor is aware there are no circumstances which may give rise to any such dispute hereafter.

EMPLOYEES

12. Remuneration and employees

12.1 Particulars of the identities, dates of commencement of employment (or appointment to office), notice periods, dates of birth, terms and conditions of employment and remuneration (including any bonus, commission, profit sharing, share and other incentive schemes, and collective or workforce agreements) of all the employees, workers and officers of the Company (“Employees”) are contained in the Disclosure Letter and copies of all standard form contracts of employment or particulars of employment statements are in the Data Room.

12.2 There are no amounts owing to any Employees, other than remuneration accrued (but not yet due for payment) in respect of the calendar month in which this Agreement is executed or for reimbursement of business expenses incurred during such month.

12.3 There are no Employees who have been absent due to sickness leave for more than 3 months in the 12 month period ending on the date of this Agreement.

12.4 The Company has not recognised, or done any act which might be construed as recognition of, a trade union and the Company is not party to any agreement with any trade union or organisation of employees.

12.5 The Company is not involved, or has during the 12 months prior to the date of this Agreement been involved, in any strike, lock-out, industrial or trade dispute or any negotiations with any trade union or body of employees or workers.

12.6 There is no material dispute outstanding between the Company and any of its Employees.

12.7 No person is employed or engaged by the Company (whether under a contract of service or contract for services and whether directly, through an agency, subsidiary or otherwise) other than the Employees.

12.8 The Disclosure Letter contains complete copies of the current terms of engagement of all persons engaged under contracts for services with the Company.

12.9 The Company has not offered any contract of employment to any person (except to the Employees).

12.10 The Company has not offered, promised or agreed for the future any variation in any contract of employment in respect of the Employees.

12.11 No Employee has given or received written notice terminating his employment.

12.12 There is no person previously employed by the Company who now has a right to return to work either now or in the future (whether for reasons connected with maternity leave, parental leave or absence by reason of illness or incapacity) or a right to be reinstated or re-engaged by the Company or to any other compensation.

12.13 None of the Employees is absent from work by reason of any disciplinary action.

12.14 The Company has not entered into any commitment to provide any increase in the emoluments or benefits of any Employee which are current or expected to take place within the next six months.

12.15 The Company has performed in all material respects its obligations and duties required to be performed by it in respect of its Employees (and has settled all outstanding claims brought by any Employee against the Company), whether arising under contract, statute, at common law or in equity.

12.16 Particulars of Employees who are required to have permission or permits to work under relevant UK immigration laws are listed in the Disclosure Letter.

12.17 There are no enquiries or investigations existing and of which the Company has had notice or threatened against the Company or, so far as the Vendor is aware, pending into the Company by the Equal Opportunities Commission, the Disability Rights Commission or the Commission for Racial Equality or other similar authorities.

12.18 There are no schemes or arrangements (which are legally enforceable) to which the Company is a party for payment of retirement, pension, disability, or death benefit or similar schemes or arrangements in operation in respect of any of the Employees or their dependants or persons formerly employed or engaged by the Company or their dependants under which the Purchaser or Company may become liable to make payments or to provide equivalent benefits.

12.19 There are not in existence and the Company is not proposing to introduce any bonus, profit sharing scheme, share option scheme, share incentive scheme or any other scheme or arrangement for the benefit of Employees or any of them and whether or not additional to their contractual entitlements.

12.20 The Company has no custom and practice of paying more than statutory redundancy entitlement.

12.21 There is no obligation on the Company to pay contributions to a stakeholder pension arrangement in respect of any employee or officer of the Company.

CONTRACTS

13. Insurance

13.1 Material particulars of the Company’s insurances and of all claims made against those insurances which are outstanding or which have been made in the 12 months immediately preceding the date of this Agreement are set out in or attached to the Disclosure Letter. So far as the Vendor is aware, there are no circumstances likely to give rise to a claim with a claimable value in excess of £5,000 thereunder.

13.2 All premiums due in relation to the Company’s policies of insurance have been paid and no written notice has been received that any policy of insurance of the Company is void or voidable.

14. Financing and working capital

14.1 The amount borrowed by the Company from its bankers does not exceed the amount of the facility agreed with such bankers and the total amount borrowed by the Company from whatever source does not exceed any limitation on its borrowing contained in its articles of association or in any Contract, debenture, loan stock deed or any other document.

14.2 All material particulars of all overdrafts, loans or other financial facilities outstanding or available to the Company are set out in the Disclosure Letter.

14.3 The Company has not applied for or received any grant, subsidy or financial assistance from any government department or other body which is subject to any continuing right of claw back. All material particulars of any such grant, subsidiary or financial assistance are contained in the Disclosure Letter.

15. Material contracts

For the purposes of this Warranty 15 and Warranty 6.2 “Material Contracts” means contracts to which the Company is a party and which account for, in the case

of customers in excess of £20,000 of revenue per annum and, in the case of suppliers, in excess of £20,000 per annum of expenditure by the Company.

15.1 There is no outstanding Contract to which the Company is a party which:

15.1.1 involves agency, distributorship, franchising;

15.1.2 involves partnership, joint venture, consortium, joint development, shareholders or similar arrangements;

15.1.3 involves hire purchase, conditional sale, credit sale, leasing, hiring or similar arrangements;

15.1.4 involves or is likely to involve any capital expenditure by the Company in excess of £20,000;

15.1.5 is incapable of complete performance in accordance with its terms within 12 months after the date on which it was entered into;

15.1.6 is not on arm’s length terms or is in any way otherwise than in the ordinary course of the Company’s business;

15.1.7 involves the provision of goods or services by the Company to a customer or customers the aggregate sales value of which represents in excess of 5 per cent. of the turnover of the Company in the 12 months preceding Completion.

15.2 There is no Material Contract which pursuant to its terms can be terminated or varied as a result of any change in the control, management or shareholders of the Company.

15.3 The Company does not carry on business under any name other than its own corporate name or any other name specified in the Disclosure Letter.

15.4 All Material Contracts between the Company and its customers are on the Company’s standard terms and conditions.

15.5 All the Material Contracts to which the Company is party are in full force and effect and have been duly complied with by the Company and so far as the Vendor is aware nothing has occurred whereby any of them is or could be subject to early termination or which has given or may so far as the Vendor is aware give rise to a material claim in damages under any of them by any party to any of them.

15.6 No person is entitled to receive from the Company any introduction fee, brokerage or other commission in connection with the introduction of or continuation of any business to or with the Company except sales commission [to Employees] in the ordinary course of business.

15.7 The Disclosure Letter has annexed to it:

15.7.1 details of monthly commission payments to sales Employees of the Company since 1 January 2004; and

15.7.2 copies of all sales commissions’ policies of the Company in respect of its Employees and such details and copies (as the case may be) are accurate in all material respects.

15.8 Copies of all Material Contracts between the Company and its suppliers are attached to the Disclosure Letter.

COMPLIANCE, DISPUTES

16. Company law matters

16.1 The copy of the memorandum and articles of association of the Company attached to the Disclosure Letter is true and complete and has embodied in it or annexed to it all resolutions referred to in section 380 of the CA1985.

16.2 So far as the Vendor is aware all material returns, particulars, resolutions and other documents required to be filed with or delivered to the Registrar of Companies by the Company or any of its officers have been correctly and properly prepared and so filed and delivered, and no such returns, particulars, resolutions or other documents have been so filed or delivered during the period of 14 days ending on the date of this Agreement.

16.3 The statutory registers of the Company have been properly kept and the Company has not received any notice, application or request for rectification of its register of members.

17. General legal compliance

17.1 The Company has not received any written notice that it has not complied in the conduct of its business in all material respects in accordance with all applicable laws and regulations of the United Kingdom and the Vendor is not otherwise aware of any such material breach.

17.2 The Company has obtained all material licences, consents, permits and authorities to enable it to carry on its business in the places and in the manner in which such business is now carried on. All such licences, consents, permits and authorities are, so far as the Vendor is aware, valid and subsisting and have been complied with in all respects and there is no reason known to the Vendor why any of them should be suspended, cancelled or revoked.

17.3 No current or threatened investigation or enquiry by, or on behalf of any governmental body in respect of the affairs of the Company has been notified in writing to the Vendor.

17.4 The Company has not received any written notification that any agreement, transaction, obligation, commitment, understanding or arrangement to which it was a party:

17.4.1 was required to be registered but was not duly registered in accordance with or is invalidated (in whole or in part) by the Restrictive Trade Practices Acts 1956 to 1977 or contravenes or is invalidated (in whole or in part) by the provisions of the Resale Prices Xxx 0000 or by virtue of its terms or any

practice carried on in connection therewith is a consumer trade practice (within the meaning of the Fair Trading Act 1973) or is liable to be referred to the Consumer Protection Advisory Committee under Part II of that Act or contravenes the Completion Xxx 0000 or the Trade Descriptions Acts 1968 and 1972 or Part XX xx xxx Xxxx Xxxxxxx Xxx 0000; or

17.4.2 infringes or requires registration under Articles 81 or 82 of the Treaty establishing the European Economic Community (or any regulations or directives made pursuant to the Treaty); or

17.4.3 is liable to be referred to the Competition Commission or infringes any provision of the Competition Xxx 0000.

18. Litigation

18.1 Save for debt collection in the ordinary course of business not exceeding £5,000 in aggregate, the Company is not nor, so far as the Vendor is aware, is any person for whose acts or defaults the Company may be contractually or vicariously liable, involved (whether as claimant, defendant or otherwise) in any civil, criminal, tribunal, arbitration, administrative or other proceedings in respect of the business of the Company and, so far as the Vendor is aware, there are no such proceedings pending or threatened either by or against the Company and so far as the Vendor is aware there are no facts which are likely to give rise to any such litigation or arbitration.

18.2 There is no outstanding or unsatisfied judgement, decree, order, award or decision of a court, tribunal, arbitrator or governmental agency against the Company and the Company is not party to any undertaking or assurance given to a court, tribunal or any other person in connection with the determination or settlement of any claim or proceedings.

18.3 There are not currently outstanding any material written complaints in respect of any aspect of the performance of any Material Contracts by the Company.

19. Insolvency

19.1 No meeting has been convened at which a resolution will be proposed, no petition has been presented, no order has been made and no resolution has been passed for the winding-up of the Company or for the appointment of any provisional liquidator. The Company has not called any formal or informal meeting of all or any of its creditors.

19.2 No administrative receiver, receiver or receiver and manager has been appointed of the whole or any part of the property, assets or undertaking of the Company.

19.3 No administrator has been appointed in respect of the Company and no steps or actions have been taken in connection with the appointment of an administrator in respect of the Company.

19.4 No voluntary arrangement has been proposed or approved under Part I Insolvency Act 1986 and no compromise or arrangement has been proposed, agreed to or sanctioned under section 425 CA 1985 in respect of the Company.

19.5 No distress, execution or other process has been levied on or applied for in respect of any asset of the Company.

19.6 The Company is not unable to pay its debts according to section 123 of the Insolvency Xxx 0000.

20. Effects of the Agreement

20.1 The execution of this Agreement and the observance and performance of its provisions will not:

20.1.1 result in a material breach of any Contract, law, regulation, order or judgement to or by which the Company is party or bound, or entitle any person to terminate or avoid any Contract to which the Company is party;

20.1.2 result in any default under any licence, authorisation or consent required by the Company to conduct its business.

21. Data Protection Act

The Company has not received any written notification that it has failed in any material respect to comply with the requirements of the Data Protection Xxx 0000 and the Data Protection Act 1984 and the Vendor is not otherwise aware of any such material non-compliance.

SUBSIDIARIES

22. The Subsidiaries have been dormant since 1 December 2000 and have no assets or liabilities (actual or contingent) of any nature whatsoever other than their paid up share capital.

SCHEDULE 4

Taxation

PART 1 – INTERPRETATION

1. Interpretation

In this Schedule 4:

1.1 the following expressions have the following meanings unless inconsistent with the context:

“ACT”	advance corporation tax

“the Auditors”	the auditors for the time being of the Company

“CAA”	Capital Allowances Act 2001

“Dispute”	any dispute, appeal, negotiations or other proceedings in connection with a Tax Claim

“Event”	includes (without limitation) any event, circumstance, state of affairs, occurrence, transaction, action or omission (whether or not the Company is party to it), including, for the avoidance of doubt, the sale and purchase of the Shares pursuant to the Agreement, and the accrual, earning, or receipt for any Taxation purpose of any income, profits or gains

“FA”	Finance Act

“Group Relief”	the meaning given to that expression by section 402 ICTA

“IHTA”	Inheritance Tax Xxx 0000

“ITEPA”	Income Tax (Earnings and Xxxxxxxx) Xxx 0000

“Liability to Taxation”	(a)	any liability of the Company to make an actual payment of Taxation;

	(b)	the use by the Company (in whole or in part) of any Purchaser’s Relief to reduce or eliminate any

		liability of the Company to make an actual payment of Taxation in respect of which the Vendor would otherwise have been liable under paragraph 2; and

	(c)	the loss of any Purchaser’s Relief falling within paragraph (a) or (b) of the definition thereof

“Purchaser’s Group”	the Purchaser and all companies with which it forms a group for the purposes of section 170 TCGA after Completion

“Purchaser’s Relief”	(a)		any Relief which was treated as an asset of the Company in the Completion Accounts; and

	(b)				any Relief which was taken into account in computing (and so reducing or eliminating) any provision for deferred tax which appears in the Completion Accounts or which would have appeared in the Completion Accounts but for the presumed availability of such Relief; and

	(c)				any Relief which arises as a result of any Event which occurs after Completion or by reference to any period or portion of any period which commences on or after Completion

“Relief”	(a)			any relief, allowance, exemption, set-off, deduction or credit available from, against or in relation to Taxation or in the computation for any Taxation purpose of income, profits or gains; and

				(b)any right to a repayment of Taxation

“Repayment”	the obtaining by the Company of:

	(a)				a repayment of Taxation where the Vendor has made a payment under this Schedule 4 or for

		breach of any Taxation Warranty in respect of the same Taxation which is the subject of the repayment; or

	(b)	a repayment of Taxation in respect of which Taxation the Vendor was not liable under Part 2 of this Schedule 4 or for breach of any Taxation Warranty by the use of any Relief arising as a result of a Liability to Taxation in respect of which the Vendor has made a payment under Part 2 of this Schedule 4 or for breach of any Taxation Warranty or as a result of or in connection with the Events which gave rise to such a Liability to Taxation

“Saving”	the reduction or elimination of any liability of the Company or the Purchaser, or any member of the Purchaser’s Group to make an actual payment of tax in respect of which the Vendor would not have been liable under paragraph 2, by the use of any Relief arising as a result of a Liability to Taxation in respect of which the Vendor has made a payment under paragraph 2 or for breach of the Taxation Warranties or as a result of or in connection with the Events which gave rise to such a Liability to Taxation

“Taxation”	(a)	any tax or duty, past or present, of the United Kingdom or elsewhere, including without limitation income tax (including income tax required to be deducted or withheld from or accounted for in respect of any payment under section Part 11 ITEPA or otherwise), corporation tax, ACT, capital gains tax, inheritance tax, VAT, customs and other import or export duties, rates, stamp duty, stamp duty reserve tax, stamp duty land tax, national insurance contributions but excluding all business rates water rates and similar local authority or utility

		charges; and

	(b)	any fine, penalty, surcharge, interest or other imposition relating to any tax or duty, mentioned in paragraph (a) of this definition or to any account, record, form, return or computation required to be kept, preserved, maintained or submitted to any person for the purposes of any such tax or duty

“Taxation Authority”	any authority, whether of the United Kingdom or elsewhere, competent to impose, assess or collect Taxation, including but not limited to the Board of Inland Revenue and the Commissioners of Customs and Excise

“Taxation Statute”	any statute (and all regulations and other documents having the force of law under such statute) published, enacted, issued or coming into force on or before the date of this Agreement relating to Taxation

“Taxation Warranties”	the Warranties set out in Part 3 of this Schedule 4 (and “Taxation Warranty” shall be defined accordingly)

“Tax Claim”	any notice, demand, assessment, letter or other document issued, or action taken, by or on behalf of any Taxation Authority and the submission of any Taxation form, return or computation from which, in either case, it appears to the Purchaser that the Company is or may be subject to a Liability to Taxation or other liability in respect of which the Vendor is or may be liable under paragraph 2 or for breach of any Taxation Warranty

“TCGA”	Taxation of Chargeable Gains Xxx 0000

“TMA”	Taxes Management Xxx 0000

“VAT”	value added tax

“VATA”	Value Added Tax Xxx 0000

“VAT Group”	any group of companies for the purposes of section 43 VATA of which the Company is

		or has been a member on or before Completion;

“Vendor’s Relief”		any Relief which is or subsequently becomes available to the Company other than a Purchaser’s Relief; and

1.2 references to Events include Events which are deemed to have occurred for any Taxation purpose and references to income, profits or gains earned, accrued or received for any Taxation purpose include income, profits or gains which are deemed to have been earned, accrued or received for any Taxation purpose.

PART 2 - TAX COVENANT

2. Covenant

Subject to the provisions of this Part 2 of this Schedule 4, the Vendor covenants with the Purchaser to pay to the Purchaser an amount equal to the amount of:

2.1 any Liability to Taxation which has arisen or arises as a result of or in connection with any Event which occurred on or before Completion or in respect of or by reference to any income, profits or gains which were earned, accrued or received on or before Completion or in respect of a period ending on or before Completion, in each case, whether or not the Taxation is chargeable against or attributable to any other person and whether or not any amount in respect thereof is recoverable from any other person; and/or

2.2 any Liability to Taxation which arises under section 767A or 767AA ICTA, as a result of the combined effect of two or more Events, the first of which occurred on or before Completion; and/or

2.3 any Liability to Taxation which arises as a result of any Event which occurs after Completion pursuant to a legally binding obligation (whether or not conditional) entered into by the Company on or before Completion otherwise than in the ordinary course of business of the Company; and/or

2.4 any Liability to Taxation which arises as a result of any supply, acquisition or importation made or deemed to be made after Completion for the purposes of VAT by any member of any VAT Group other than the Company; and/or

2.5 without limitation to the generality of paragraph 2.1, any Liability to Taxation which arises as a result of the Company ceasing to be a member of the same group of companies (for any Taxation purpose) as the Vendor or any other company prior to or as a result of Completion; and/or

2.6 any Liability to Taxation which arises as a result of any person or company (other than the Company or one of the Subsidiaries) failing at any time to discharge any Taxation for which such person or company is primarily liable, where such person or company has at any time on or before Completion:

2.6.1 been a member of the same group of companies as the Company for any Taxation purpose; and/or

2.6.2 been under the control of, or connected with, the Company for any Taxation purpose; and/or

2.6.3 controlled the Company for any Taxation purpose; and/or

2.7 any reasonable costs, fees or expenses properly incurred by the Company or the Purchaser in connection with any such Liability to Taxation as is mentioned in this paragraph 2 or with successfully taking or defending any action (including but not limited to legal proceedings) under this Part 2 of this Schedule 4.

3. Quantification

For the purposes of paragraph 2 the amount of a Liability to Taxation or a liability of the kind mentioned in paragraph 2.6 will be determined as follows:

3.1 the amount of a Liability to Taxation falling within paragraph (a) of the definition of that expression in paragraph 1.1 will be the amount of the actual payment of Taxation which the Company is liable to make;

3.2 the amount of a Liability to Taxation falling within paragraph (b) of the definition of that expression in paragraph 1.1 will be the amount of Taxation saved by the Company as a result of the use of the Purchaser’s Relief; and

3.3 the amount of a Liability to Taxation falling within paragraph (c) of the definition of that expression in paragraph 1.1 will be:

3.3.1 the amount of Taxation which would have been saved by the Company but for the loss of the Purchaser’s Relief on the basis of the rates of Taxation current at the date of the loss, assuming for this purpose that the Company had sufficient profits or was otherwise in a position actually to use the Purchaser’s Relief; or

3.3.2 if the Purchaser’s Relief lost was a right to a repayment of Taxation, the amount of the repayment of Taxation so lost; and

4. Exclusions

4.1 The Vendor will not be liable under paragraph 2 or for a breach of the Taxation Warranties in respect of a Liability to Taxation or other liability of the Company:

4.1.1 to the extent to which such Liability to Taxation or other liability was discharged on or before Completion and the discharge was reflected in the Completion Accounts; or

4.1.2 if a provision, allowance or reserve was made in the Completion Accounts for such Liability to Taxation or other liability (whether or not, for the avoidance of doubt, such provision, allowance or reserve was sufficient); or

4.1.3 to the extent to which the Purchaser or the Company has already recovered (at no cost) from any other person, other than the Company, the Purchaser or a member of the Purchaser’s Group a payment in respect of such Liability to Taxation or other liability whether under this Agreement or otherwise; or

4.1.4 to the extent to which such Liability to Taxation or other liability would not have arisen but for a change in legislation (including but not limited to an increase in rates of Taxation) or in the published practice of any Taxation Authority or but for any decision of any court or tribunal, in each case first enacted or announced or delivered after Completion; or

4.1.5 to the extent to which such Liability to Taxation or other liability would not have arisen but for a voluntary act, transaction, omission or arrangement carried out after Completion by the Purchaser or the Company or any of their respective directors, employees or agents or successors in title of the Company after Completion:

4.1.5.1		otherwise than pursuant to a legally binding obligation entered into by the Company on or before Completion or imposed on the Company by any legislation whether coming into force before, on or after Completion; and

4.1.5.2		otherwise than in the ordinary course of business of the Company; and

4.1.5.3		which the Purchaser was aware or ought reasonably to have been aware (on the basis of matters disclosed in the Disclosure Letter or information contained within the Data Room) would give rise to the Liability to Taxation or other liability in question,

provided that, for the avoidance of doubt, any act, transaction, omission or arrangement carried out by the Purchaser or the Company at the request of the Vendor pursuant to the provisions of paragraph 10 shall not constitute a voluntary act, transaction, omission or arrangement for the purposes of this paragraph 4.1.5; or

4.1.6 to the extent to which such Liability to Taxation or other liability would not have arisen but for the Company changing any of its accounting policies, bases or practices (including, but not limited to, the date to which the Company prepares its accounts, the treatment of timing differences, the bases on which the Company values its assets and its taxation reporting practice) after Completion unless such change was required to comply with UK GAAP as at Completion; or

4.1.7 to the extent to which such Liability to Taxation is in respect of the actual (as opposed to the deemed) income, profits or gains earned, received or accrued prior to Completion but which are not recognised in the Completion Accounts; or

4.1.8 to the extent to which such Liability to Taxation or other liability would not have arisen but for the Company ceasing to carry on any trade or business after Completion or effecting a major change after Completion in the nature or conduct of any trade or business carried on by it; or

4.1.9 to the extent to which such Liability to Taxation or other liability would not

have arisen but for the failure by the Company after Completion to make any claim, election, surrender or disclaimer or to give any notice or consent or to do any other thing, the making, giving or doing of which was permitted by law and which was taken into account:

4.1.9.1 in computing and so reducing any provision for current or deferred Taxation which appears in the Completion Accounts (or eliminating any provision for current or deferred Taxation which, but for such Relief, would have appeared in the Completion Accounts); or

4.1.9.2 in computing any right to a repayment of Taxation which appears as an asset in the Completion Accounts,

unless such failure is at the written request of the Vendor or its duly authorised agents (including, for the avoidance of doubt, any request made pursuant to the provisions of paragraph 10); or

4.1.10 to the extent to which such Liability to Taxation or other liability would not have arisen but for the withdrawal or amendment by the Company after Completion of any valid claim, election, surrender, disclaimer, notice or consent made by the Company prior to Completion in relation to any Relief and taken into account or reflected in the Completion Accounts unless such withdrawal or amendment is at the written request of the Vendor or its duly authorised agents (including, for the avoidance of doubt, any request made pursuant to the provisions of paragraph 10); or

4.1.11 to the extent to which such Liability to Taxation or other liability is a liability to interest or penalties which would not have arisen but for any failure by the Purchaser or the Company to comply with its obligations under paragraph 7 of this Schedule 4 or the Agreement; or

4.1.12 to the extent to which such Liability to Taxation or other liability is a liability to interest or penalties which would not have arisen but for any failure or delay by the Purchaser or the Company in paying over to any Taxation Authority any payment previously made by the Vendor under this Schedule 4; or

4.1.13 to the extent to which a Vendor’s Relief is available to be used against the liability in question.

4.2 For the avoidance of doubt and notwithstanding any other provision in this Schedule 4, the Purchaser is not entitled to recover damages or otherwise obtain payment, reimbursement or restitution from the Vendor in full more than once in respect of the same Liability to Taxation or other loss.

4.3 The provisions of paragraphs 2.1, 2.2, 3.1, 3.2 and 6 of Schedule 7 shall apply to limit the liability of the Vendor under paragraph 2. The provisions of paragraphs 2.1, 2.2, 3.1, 3.2, 4, 6, 7 and 9 of Schedule 7 shall apply to limit the liability of the Vendor in respect of a claim for a breach of the Taxation Warranties.

5. Deductions From Payments

5.1 Except as required by law all payments by the Vendor under this Part 2 of this Schedule 4 will be made free and clear of all deductions and withholdings (whether in respect of Taxation or otherwise).

5.2 If any deduction or withholding is required by law to be made from any payment by the Vendor under this Part 2 of this Schedule 4 or if the Purchaser is subject to Taxation in respect of any payment by the Vendor under this Part 2 of this Schedule 4, the Vendor covenants with the Purchaser to pay to the Purchaser such additional amount as is necessary to ensure that the net amount received and retained by the Purchaser (after taking account of such deduction or withholding or Taxation) is equal to the amount which it would have received and retained had the payment in question not been subject to the deduction or withholding or Taxation.

5.3 In the event of the assignment of this Agreement the Vendor’s liability to the assignee under this Schedule 4 will be no greater than it would have been to the Purchaser.

6. Due Date for Payment

6.1 The due date for the making of a payment by the Vendor under this Part 2 of this Schedule 4 will be the later of the date falling five Business Days after the Purchaser has served a notice on the Vendor demanding such payment and the date determined in accordance with paragraphs 6.2 to 6.4.

6.2 In any case involving a Liability to Taxation falling within paragraph (a) of the definition of that expression in paragraph .1.1 or any other liability of the Company to make an actual payment, the second date mentioned in paragraph 6.1 will be the date falling five clear Business Days before the last date upon which the payment is required to be made to the person entitled thereto (after taking into account any postponement of the due date for payment of any Taxation which is obtained).

6.3 In any case involving a Liability to Taxation falling within paragraph (b) of the definition of that expression in paragraph 1.1, the second date mentioned in paragraph 6.1 will be the date falling five clear Business Days before the last date upon which the payment of Taxation which has been reduced or eliminated by the use of a Purchaser’s Relief is or would have been required to be made to the relevant Taxation Authority.

6.4 In any case involving a Liability to Taxation falling within paragraph (c) of the definition of that expression in paragraph 1.1:

6.4.1 if the Purchaser’s Relief lost was a Relief other than a right to repayment of Taxation, the second date mentioned in paragraph 6.1 will be the date falling five clear Business Days before the last date upon which Taxation is or would have been required to be paid to the relevant Taxation Authority in respect of the period in which the Purchaser’s Relief is lost (irrespective of whether the Company then had sufficient profits or was otherwise in a position actually to use the Purchaser’s Relief); or

6.4.2 if the Purchaser’s Relief lost was a right to a repayment of Taxation, the second date mentioned in paragraph 6.1 will be the date upon which the repayment was due from the relevant Taxation Authority.

6.5 In any case involving a liability of the Vendor to pay an additional amount to the Purchaser under paragraph 5.2 as a result of:

6.5.1 any deduction or withholding being required by law to be made, the due date for payment will be the same as the due date for payment of the amount from which the deduction or withholding is required to be made; and

6.5.2 the Purchaser being subject to Taxation in respect of any payment, the due date for payment will be the later of the date falling five Business Days after the Purchaser has served a notice on the Vendor demanding such payment and the date falling five clear Business Days before the last date upon which the Taxation is (or, but for the availability of any Relief, would have been) required to be paid to the relevant Taxation Authority (taking into account any postponement of the due date for payment of Taxation).

7. Claims Procedure

7.1 The Purchaser will as soon as reasonably practicable after the Purchaser or the Company becomes aware of a Tax Claim give notice of any Tax Claim to the Vendor, and in the event of an assessment or demand for Taxation in respect of which a time limit for the making of an appeal applies, no later than 10 Business Days prior to the expiry of such time limit, such notice to contain reasonable details of the Tax Claim and, so far as available, the quantum. The giving of such notice shall not be a condition precedent to the liability of the Vendor under this Schedule 4.

7.2 Provided that the Vendor indemnifies the Company and the Purchaser to the reasonable satisfaction of the Purchaser against all losses, costs, damages and expenses (including interest on overdue Taxation) which may be incurred thereby, the Purchaser will procure that the Company, at the Vendor’s cost and expense, takes such action and gives such information and assistance in connection with its Taxation affairs as the Vendor may reasonably and promptly request to dispute, appeal against, settle or compromise any Tax Claim, including, but not limited to:

7.2.1 applying to postpone (so far as legally possible) the payment of any Taxation; and

7.2.2 (except in the case of a Tax Claim where any Taxation Authority alleges in writing fraudulent conduct on the part of the Vendor or the Company prior to Completion) allowing the Vendor to undertake, at the Vendor’s own cost and expense, the conduct of the Dispute.

7.3 The Vendor will not without the prior written consent of the Purchaser (not to be unreasonably withheld or delayed) take any of the following actions in relation to any Dispute conducted by the Vendor or at the Vendor’s request:

7.3.1 the transmission of any material written communication to any Taxation Authority;

7.3.2 the settlement or compromise of the relevant Tax Claim; and

7.3.3 the agreement of any matter which is likely to affect the amount of any future Liability to Taxation.

7.4 The Vendor will promptly and fully inform the Purchaser of all matters relating to any Dispute conducted by or at the request of the Vendor and will provide the Purchaser with copies of all material correspondence and other documents relating thereto.

7.5 Without prejudice to the liability of the Vendor under this Part 2 of this Schedule 4:

7.5.1 the Purchaser will not be obliged to procure that the Company appeals against any assessment to or demand for Taxation unless within 15 Business Days of the Purchaser giving notice thereof to the Vendor in accordance with paragraph 7.1, the Vendor has given notice to the Purchaser to do so;

7.5.2 if the Vendor fails promptly (and in any event within 15 Business Days of the Purchaser giving notice requiring the Vendor to do so) to inform the Purchaser of any action which the Vendor wishes the Purchaser to procure the Company to take under paragraph 7.2, the Purchaser will be entitled to procure that the Company settles or compromises any Tax Claim on such terms as it determines in its reasonable discretion;

7.5.3 the Purchaser will not be obliged to or procure that the Company appeals against any assessment to or demand for Taxation beyond the General or Special Commissioners of the Inland Revenue, a VAT tribunal or any equivalent court or tribunal unless the Purchaser and the Company have been advised in writing, at the expense of the Vendor, by tax counsel of at least 7 years’ call that such an appeal would have a reasonable prospect of success;

7.5.4 the Purchaser will not be obliged to or procure that the Company complies with any request or take any action which is likely to increase the future Liability to Taxation of the Company; and

7.5.5 in the event of a failure of the Vendor to give notice as mentioned in paragraph 7.5.1 or a failure of the Vendor to indemnify the Purchaser and the Company as mentioned in paragraph 7.2 or if the Dispute concerns fraudulent or negligent conduct on behalf of the Vendor or its duly authorised agents or, on or before Completion, on behalf of the Company or its duly authorised agents, the Purchaser and the Company shall have sole conduct of the Dispute and shall be free to pay or settle the Tax Claim on such reasonable terms as the Purchaser or the Company shall think fit, having regard to the best interests of the Company.

8. Savings and Repayments

8.1 If the Auditors determine that the Company has obtained a Saving or a Repayment, the Saving or Repayment (as the case may be) will be applied as follows:

8.1.1 first, the amount of the Saving or Repayment will be set off against any payment then due from the Vendor under this Schedule 4 or for breach of any Taxation Warranty;

8.1.2 secondly, to the extent that there is an excess, the Purchaser will, within two Business Days, pay to the Vendor the lesser of:

8.1.2.1		the amount of the excess; and

8.1.2.2		any amount previously paid by the Vendor under this Schedule 4 or for breach of any Taxation Warranty;

8.1.3 thirdly, to the extent that the excess referred to in paragraph 8.1.2 is not exhausted, the remainder of that excess will be carried forward and set off against any future liability of the Vendor under this Schedule 4 or for breach of any Taxation Warranty.

8.2 The Purchaser will procure that the Company uses any Relief available to it which would give rise to a Saving or Repayment as soon as it is reasonably practicable for the Company to do so without there being a consequent reduction in, elimination of or diminution in value of any other Relief which is or would be available to it.

8.3 In determining whether or not the Company has obtained a Saving or a Repayment and, if so, the amount, the Auditors will act as experts and not as arbitrators and their determination will (in the absence of manifest error) be conclusive and binding on the parties.

8.4 The Purchaser will inform the Vendor as soon as reasonably practicable after it or the Company becomes aware that the Company may obtain a Saving or a Repayment.

9. Purchaser’s Covenant

9.1 The Purchaser covenants with the Vendor to pay to the Vendor an amount equal to any liability of the Vendor to Taxation under section 767A, 767AA or 767B ICTA section 132 FA 1998, section 190 TCGA or paragraph 68 of Schedule 29 or paragraph 8 of Schedule 34 FA 2002 (and any related interest or penalties) in connection with the Company failing to discharge a liability to tax together with any reasonable costs or expenses properly incurred by the Vendor in connection with such liability save that this paragraph 9.1 shall not apply in respect of any tax for which the Vendor is liable to make (but has not yet made) payment to the Purchaser under Part 2 of this Schedule 4 or for breach of any Taxation Warranty.

9.2 Paragraphs 5, 6 and 7 will apply to the covenants in paragraph 9.1 as they apply to the covenants contained in paragraph 2 replacing references to the Vendor and the Purchaser (and vice versa) and making any other necessary modifications.

10. Corporation Tax Returns

10.1 The Vendor or its duly authorised agents will at the Company’s cost and expense (provided such costs and expenses are reasonable and proper) prepare the corporation tax returns and computations of the Company for all accounting periods ended on or

before Completion, to the extent that they have not been prepared before Completion, and will submit them to the Purchaser.

10.2 The Purchaser will procure that the Company causes the returns and computations mentioned in paragraph 10.1 to be authorised, signed and submitted to the Company’s Inspector of Taxes without amendment or with such amendments as the Purchaser may reasonably request provided that the Purchaser shall not be required to procure that the Company authorises, signs and submits any return or computation which the Purchaser reasonably considers is not full, true and accurate in all material respects or which contains any provision or other item which has not been provided for or reflected in the audited accounts for the accounting period to which the return or computation in question relates or in any audited accounts for any subsequent period (including the Completion Accounts) but, for the avoidance of doubt, the Purchaser shall be under no obligation to make any enquiry as to the completeness and accuracy thereof and shall be entitled to rely entirely on the Vendor and its duly authorised agents.

10.3 The Vendor or its duly authorised agents will prepare all documentation and deal with all matters (including correspondence) relating to the corporation tax returns and computations of the Company for all accounting periods ended on or before Completion. The Vendor will keep the Purchaser informed of all material matters relating to the agreement of such corporation tax returns with the Company’s Inspector of Taxes and will provide the Purchaser with copies of all material correspondence and other documents relating thereto. The Vendor will submit to the Purchaser for comments all material correspondence and documents which it intends to submit to a Taxation Authority and will take into account all such reasonable and timely comments as the Purchaser shall make.

10.4 The Purchaser will procure that the Company affords the Vendor or its duly authorised agents such access to the Company’s books, accounts and records as is reasonable to enable the Vendor or its duly authorised agents to prepare the corporation tax returns and computations of the Company for all accounting periods ended on or before Completion and conduct matters relating to them in accordance with this paragraph 10.

10.5 The Purchaser will procure that the Company promptly makes or gives such claims, elections, surrenders and consents in relation to Taxation for all accounting periods of the Company ended on or before Completion as the Vendor reasonably requests in writing and which were assumed to have been made in the audited accounts for the accounting period in question or in any audited accounts for any subsequent period (including the Completion Accounts), including (without limitation) the carry forward, carry back, acceptance or surrender of or any claim or election in relation to any Vendor’s Relief, and generally does all such things as may be reasonably necessary to give effect to such claims, elections, surrenders or consents.

10.6 In relation to the tax return for the accounting period current at Completion, the Purchaser shall or shall procure that the Company shall afford to the Vendor a reasonable opportunity to comment on such document only insofar as it relates to the affairs of the Company whilst it was under the control of the Vendor.

10.7 If any document is issued or any matter arises which constitutes a Tax Claim, such Tax Claim shall be dealt with under the provisions of paragraph 7 and not this paragraph 10.

11. Recovery From Other Persons

11.1 If the Company recovers from any other person (including any Taxation Authority but excluding the Purchaser, any other member of the same group of companies as the Purchaser and any officer or employee of any such company) any amount which is referable to a Liability to Taxation or other liability of the Company in respect of which the Vendor has made a payment under paragraph 2, the Purchaser will repay to the Vendor the lesser of:

11.1.1 the amount so recovered (less any losses, costs, Taxation, damages and expenses incurred by the Company, the Purchaser or any other member of the same group of companies as the Purchaser as a result of the recovery of that amount); and

11.1.2 the amount paid by the Vendor under paragraph 2 in respect of the Liability to Taxation or other liability in question less any part of such amount previously repaid to the Vendor under any provision of this Agreement.

11.2 If the Purchaser becomes aware that the Company is entitled to recover any amount mentioned in paragraph 11.1, the Purchaser will as soon as reasonably practicable give notice of that fact to the Vendor and provided that the Vendor indemnifies the Company, the Purchaser and all other members of the same group of companies as the Purchaser to the reasonable satisfaction of the Purchaser against all losses, costs, damages and expenses which may be incurred thereby, the Purchaser will procure that the Company, at the Vendor’s cost and expense, takes such action as the Vendor may request to effect such recovery.

12. General

All payments by the Vendor under this Part 2 of this Schedule 4 will be treated as repayments by the Vendor of the Consideration paid for the Shares pursuant to this Agreement to the extent possible, but not so as to limit the liability of the Vendor to the Purchaser hereunder.

PART 3 - TAX WARRANTIES

13. Taxation paid

13.1 In the six years prior to the date of this Agreement the Company has duly and punctually paid all Taxation which it is or has been liable to pay or account for and the due date for payment of which has fallen prior to the date of this Agreement and is not liable nor has it in the past six years been liable to any fine, penalty, surcharge or interest in connection with any Taxation.

13.2 Without limitation of paragraph 13.1, the Company has deducted or withheld all Taxation which it has been obliged by law to deduct or withhold from payments made by it and has properly accounted to the relevant Taxation Authority for the

Taxation so deducted. The Company has not received any notice from any Taxation Authority which will or may require it to withhold tax from any payment which may be made after the date of this Agreement.

14. Returns

14.1 In the six years prior to the date of this Agreement the Company has duly and punctually made all returns and given or delivered all notices and accounts and information which on or before the date of this Agreement ought to have been made, given or delivered for the purposes of Taxation or which have been assumed to have been made, given or delivered for the purposes of the Accounts.

14.2 The Company has prepared and maintained all records in relation to Taxation as it is required by any Taxation Statute to prepare and/or maintain or which may be required to calculate any future Liability to Taxation or the amount of any Relief.

15. No disputes

There is no dispute or disagreement outstanding with any Taxation Authority in respect of the Taxation affairs of the Company (and the Vendor is not aware of any existing circumstance which make it likely that such dispute or disagreement may arise) and no Taxation Authority has indicated to the Company or the Vendor that it intends to investigate the Taxation affairs of the Company.

16. Group Transfers

The Company has not in the six (6) years ending on the date of this Agreement acquired an asset from any company which at the time of the acquisition was a member of the same group of companies (as defined in Section 170 TCGA) as the Company, and neither section 179 TCGA nor paragraph 58 Schedule 29 FA 2002 will have effect in relation to any asset of the Company by virtue of or in consequence of the entering into or performance of the Agreement or any event since the Accounts Date.

17. Groups - General

Save for surrenders, payments, refunds etc between the members of the Group, in respect of:

17.1 any surrender or claim for group relief or consortium relief pursuant to sections 402 – 413 ICTA; and

17.2 any surrender or claim for surrender of any tax refund pursuant to section 102 FA 1989,

made or received or agreed to be made or received in the six years ended on the date of this Agreement, no payment remains due or outstanding and relevant claims, elections and surrenders will be allowed in full and no further action is required of any member of the Group in respect thereof.

18. Residence

The Company has since its incorporation been resident in the United Kingdom for

Taxation purposes and has not been resident for Taxation purposes in any other jurisdiction nor has any jurisdiction other than the United Kingdom imposed or sought to impose Taxation on the Company.

19. Company registered under VATA

19.1 The Company is duly registered for VAT purposes and in the three years prior to the date of this Agreement has fully complied with all relevant provisions of VATA and regulations made or notices issued under any legislation relating to VAT.

19.2 The Company is not and never has been registered as a member of a group of companies for the purposes of VATA nor applied to be treated as such a member. No event has occurred as a result of which the provisions of schedule 9A VATA will or may be applied to the Company.

19.3 The Company has not purchased or agreed to purchase any asset to which Article 5 VAT (Special Provisions) Order 1995 applied or would apply.

19.4 The Company does not own any asset and has not incurred any expense in respect of Part XV VAT Regs (capital goods scheme) applies.

19.5 The Company is not nor has been at any time exempt or partially exempt for VAT purposes and there are no circumstances existing at the date of this Agreement whereby regulations 107-109 of the VAT Regs apply or may apply to it.

20. Employees

In the six years prior to the date of this Agreement the Company has properly deducted Taxation as required by law from all payments to or treated as made to or benefits provided for employees or former employees of the Company and duly accounted to the appropriate Taxation Authority for Taxation so deducted and for national insurance contributions in respect thereof and has complied with all its reporting obligations to that Taxation Authority in connection with any such payments made or benefits provided.

21. Close Companies

21.1 The Company is not, nor has it ever been, a close investment holding company within the meaning of section 13A ICTA.

21.2 The Company has not at any time in the six years prior to this Agreement made any loan or advance or effect any transaction falling within section 419, 421 or 422 ICTA which (in the case of any loan or advance) is still outstanding or released or written off or agreed to release or write off the whole of any part of any such loans or advances.

22. Arms’ Length Dealings

The Company is not and has not been a party to or otherwise involved in any transaction, agreement or arrangement otherwise than by way of bargain at arms’ length in consequence of which it will or may be liable to Taxation (including Taxation which would have been payable but for the availability of any Relief) in

respect of an amount deemed for Taxation purposes to be income or gains of the Company but which are not actually income or gains of the Company.

23. Stamp Duty

23.1 All documents which are liable to stamp duty and which are in the possession or under the control of the Company and which confer any right upon the Company or on which the Company may need to rely in respect of any asset held at Completion have been duly stamped and no document which confers any right upon the Company or on which the Company may need to rely and which is outside the United Kingdom would attract stamp duty if it were brought into the United Kingdom.

23.2 The Company has properly and punctually paid all stamp duty land tax for which it is liable in respect of any land transaction (as defined in section 43 FA 2003) to which it is or has been a party or in respect of which it is liable to account for stamp duty land tax, and the Company is not liable nor has it been party to any land transaction whereunder it will or may have a liability to make a payment of or in respect of stamp duty land tax or additional stamp duty land tax after Completion, as a result of or by reference to any matter arising or event occurring after Completion or to submit any return or additional return in relation to stamp duty land tax.

23.3 Neither the execution nor the performance of this Agreement nor any action taken in pursuance of this Agreement nor any other Event since the Accounts Date will result in the withdrawal of any relief from stamp duty or stamp duty land tax previously claimed.

SCHEDULE 5

Completion Arrangements

At Completion the following will take place:

1. Items for Delivery

The following items will be produced and delivered by the Vendor to the Purchaser or as it directs:

Share Transfers

1.1 Executed transfers of the Shares in favour of the Purchaser (or its nominee(s)) together with the share certificates for the Shares (if issued) (or in the case of any lost certificate an indemnity satisfactory to the Purchaser in relation to it).

1.2 An irrevocable power of attorney in the agreed terms executed by the Vendor in favour of the Purchaser to enable the Purchaser (pending registration of the transfer of the Shares) to exercise all voting and other rights attaching to the Shares and to appoint proxies for this purpose.

Authorisations

1.3 A copy or certified extract of the duly signed minutes of the board of the Vendor authorising the execution of this Agreement and a Secretary’s Certificate in agreed terms signed by the Secretary of the Vendor’s Guarantor confirming that a resolution of the board of the Vendor’s Guarantor has been passed authorising the execution of this Agreement.

1.4 Legal opinion letters in the agreed terms confirming the power of the Vendor and the Vendor’s Guarantor to enter into and be bound by the terms of its obligations under this Agreement and all other Transaction Documents together with any additional documents executed pursuant thereto to which it is a party.

Resignations and Appointments

1.5 A letter of resignation in the agreed terms from the directors of the Company and each of the Subsidiaries.

1.6 A letter of resignation in the agreed terms from the secretary of the Company and from each of the Subsidiaries.

1.7 A copy of a letter to the Company and to each Subsidiary from its auditors resigning from office with effect from Completion and containing the statement required by section 394 CA 1985, the original of the letter having been deposited at the registered office of the Company or the relevant Subsidiary.

Company Documentation

1.8 The certificate of incorporation, any certificate(s) of incorporation on change of name, the common seal and the statutory books and registers (which will be written

up to but not including Completion) of the Company and of each of the Subsidiaries.

1.9 All deeds and documents relating to the title of the Company or the relevant Subsidiary to the Properties specified in Schedule 6.

Financial

1.10 A copy of the bank mandate of the Company and copies of bank statements in respect of each account of the Company as at the close of business on a date no earlier than two Business Days prior to Completion, together in each case with a reconciliation statement prepared by the Vendor to show the position at Completion (listing unpresented cheques drawn or received by the Company and standing orders or direct debits payable since the date of such bank statements).

2. Convening of Meetings

2.1 The Vendor will procure that a duly convened board meeting of the Company is held at which:

2.1.1 the transfers referred to in paragraph 1.1 (subject to stamping if not previously effected) are approved for registration in the books of the Company;

2.1.2 the accounting reference date of the Company is changed to 30 June;

2.1.3 the address of the registered office of the Company is changed to 00 Xxxxxxxxxxx Xxx, Xxxxxx XX0X 0XX;

2.1.4 the resignations of directors, secretaries and auditors referred to in each of paragraphs 1.5, 1.6 and 1.7 are accepted with immediate effect ;

2.1.5 such persons as are nominated by the Purchaser as directors, secretary and auditors of the Company are appointed with immediate effect; and

2.1.6 all existing instructions to the bankers of the Company are revoked.

2.2 The Vendor will procure that a duly convened board meeting of each Subsidiary is held at which:

2.2.1 the accounting reference date of the Subsidiary is changed to 30 June;

2.2.2 the address of the registered office of the Subsidiary is changed to 00 Xxxxxxxxxxx Xxx, Xxxxxx XX0X 0XX;

2.2.3 the resignations of directors, secretaries and auditors referred to in each of paragraphs 1.5, 1.6 and 1.7 are accepted with immediate effect;

2.2.4 such persons as are nominated by the Purchaser as directors, secretary and auditors of the Subsidiary are appointed with immediate effect;

2.2.5 all existing instructions to the bankers of the Subsidiary are revoked.

3. Repayment of Monies Owed

The Vendor will repay, and will procure that each Member of the Vendor’s Group will repay, any amounts owed at Completion by such Vendor or Member of the Vendor’s Group to the Company or Subsidiary (as the case may be) whether due for payment or not save for normal inter-company trading accounts in the ordinary course of trading.

4. Escrow Account

The Vendor will procure execution of all documents (insofar as they are to be executed by the Vendor, its officers and advisers) necessary to establish and operate the Escrow Account in accordance with the terms of this Agreement.

5. TSA and Excluded Contracts Assignment

The Vendor will deliver an engrossment of each of the TSA and the Excluded Contracts Assignment duly executed by the Vendor’s Guarantor or the Vendor, as the case may be.

6. Satisfaction of Consideration and Purchaser’s Obligations

6.1 The Purchaser will pay the Consideration payable on Completion, by electronic funds transfer to the Vendor’s Solicitors client account details of which shall be notified to the Purchaser’s Solicitors or by such other method as may be agreed between the parties and will pay the Retention Fund amount as stipulated in clause 2 into the Escrow Account.

6.2 The Purchaser will:

(a) acknowledge receipt of the Disclosure Letter;

(b) produce and deliver to the Vendor a copy or certified extract of the duly signed minutes of the board of the Purchaser and the Guarantor authorising the execution of this Agreement;

(c) produce and deliver to the Vendor a legal opinion letter in the agreed terms confirming the power of the Guarantor to enter into and be bound by the terms of its obligations under this Agreement and all other Transaction Documents together with any additional documents executed pursuant thereto to which it is a party;

(d) procure execution of all documents (insofar as they are to be executed by the Purchaser, its officers and advisers) necessary to establish and operate the Escrow Account in accordance with the terms of this Agreement; and

(e) deliver an engrossment of each of the TSA and the Excluded Contracts Assignment duly executed by the Company.

SCHEDULE 6

The Properties

Property	:	Part 3rd floor and additional 3rd floor room, Xxx Xxxxxx Xxxxx, 00 Xxxxxx Xxxxxx, Xxxxxxx, XX00 0XX

Interest	:	Leasehold

Landlord	:	Innoprise (Europe) Limited

Tenant	:	Via Xxx.xxxxx UK Limited

Date of Lease	:	7 October 2002 (Part 3rd floor) 25 June 2003 (additional room)

Term	:	5 years from and including 1 July 2002 and expiring at 12 noon on 30 June 2007 (part 0xx xxxxx) from and including 2 June 2003 and expiring on 30 June 2007 (additional room)
Rent (£ p.a.)	:	£30,915 (part 0xx xxxxx) £5965 (additional room)

Service Charge	:	£1,431.25 per quarter (part 0xx xxxxx) £1,105 per annum (additional room)

Property	:	Second Floor, Xxx Xxxxxx Xxxxx, 00 Xxxxxx Xxxxxx, Xxxxxxx, XX00 0XX

Interest	:	Leasehold

Landlord	:	Innoprise (Europe) Limited

Tenant	:	Via Xxx.xxxxx UK Limited

Date of Lease	:	7 October 2002

Term	:	5 years from and including 1 July 2002 and expiring at 12 noon on 30 June 2007

Rent (£ p.a.)	:	£67,365

Service Charge	:	£3,118.75 per quarter

Property	:	First floor and part ground floor, Xxx Xxxxxx Xxxxx, 00 Xxxxxx Xxxxxx, Xxxxxxx, XX00 0XX

Interest	:	Leasehold

Landlord	:	Innoprise (Europe) Limited

Tenant	:	Via Xxx.xxxxx UK Limited

Date of Lease	:	7 October 2002 (First Floor) 25 June 2003 (Ground Floor)

Term	:	5 years from and including 1 July 2002 and expiring at 12 noon on 30 June 2007 (First Floor) from and including 25 June 2003 to 12 noon on 30 June 2007 (Ground Floor)

Rent (£ p.a.)	:	£67365 (Xxxxx Xxxxx) x0000 (Xxxxxx Xxxxx)

Service Charge	:	£3118.75 (Xxxxx Xxxxx) x000 (Xxxxx Xxxxx)

Property	:	830 and 000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx

Interest	:	Leasehold

Landlord	:	IM Properties (Nationwide) Limited

Tenant	:	Via Networks (UK) Limited

Date of Lease	:	2 May 2001

Term	:	5 years from and including 9 January 2001

Rent (£ p.a.)	:	£73,050

Service Charge	:	£4,310.55

Property	:	824 and 000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx

Interest	:	Leasehold

Landlord	:	IM Properties Limited

Tenant	:	Via Networks UK Limited

Date of Lease	:	13 June 2001

Term	:	5 years from and including 13 June 2001

Rent (£ p.a.)	:	£30,000

Service Charge	:	£2,000

Property	:	Xxxxx 000, 000 and 000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx

Interest	:	Leasehold

Landlord	:	British Aerospace plc

Tenant	:	U-Net Limited

Date of Lease	:	1 October 1999

Term	:	10 years from and including 1 October 1999

Rent (£ p.a.)	:	£111,429.69

Service Charge	:	£3,400

SCHEDULE 7

Limitations on the Vendor’s Liability

1. The provisions of this Schedule will apply notwithstanding any provisions to the contrary in this Agreement and will not cease to have effect in consequence of any termination by the Purchaser of any other provisions of this Agreement.

In this Schedule 7 “claim” means any claim which would (but for the provisions of this Schedule 7) be capable of being made against the Vendor for breach of this Agreement (save for any claim by the Purchaser for breach by any Member of the Vendor’s Group of the provisions of clause 8 or clause 23 of this Agreement or any liability or payment pursuant to clause 7.3 or Schedule 8) or under Part 3 of Schedule 4 unless the context otherwise requires. For the avoidance of doubt, in relation to any claim by the Purchaser under the provisions of clause 24, the provisions of this Schedule 7 shall apply mutatis mutandis only to the extent expressly set out in clause 24.

2. Financial limitations

2.1 In no event shall the aggregate liability of the Vendor in respect of all claims under this Agreement or under Schedule 4 (including for any sums due under Schedule 8) exceed the Consideration actually received by the Vendor or that would have been received by the Vendor save for the operation of the provisions of Schedule 9.

2.2 The Purchaser shall not be entitled to claim against the Vendor under the Warranties (other than in respect of Warranties 1.3, 1.4 and 1.5) or under Part 3 of Schedule 4 :

2.2.1 unless the amount (excluding interest and costs) that would be recoverable from the Vendor in respect of the claim exceeds £2,500.For this purpose, if a claim relates to more than one event or circumstance which would separately constitute a breach of any of the Warranties or any other provision of this Agreement or under Part 3 of Schedule 4 that claim shall be treated as a separate claim in respect of each event or circumstance;

2.2.2 until the amount (excluding interest and costs) that would be recoverable from the Vendor in respect of the claim, when aggregated with the amount (excluding interest and costs) recoverable in respect of any other claims against the Vendor under the Warranties or any other provision of this Agreement or under Part 3 of Schedule 4 (and for those purposes ignoring any claims which the Purchaser is not entitled to bring because of paragraph 2.2.1 above) exceeds a threshold of £120,000in which event, the Vendor shall (but subject to paragraph 2.2.1) be liable for the entire amount of the claim and not merely the amount by which that threshold is exceeded.

3. Time limitation

3.1 No claim unless notice in writing

No claim shall be brought by the Purchaser under the Warranties or any other

provision of this Agreement (other than in respect of Warranties 1.3, 1.4 and 1.5) unless it shall have given notice in writing of that claim specifying (in reasonably sufficient detail) the matter giving rise to the claim, the nature of the claim and the amount claimed, as soon as practicable upon becoming aware of the existence of such claim, and shall have issued proceedings in respect thereof to the Vendor not later than:

a) in the case of a claim relating to Taxation, the expiry of a period of seven (7) years, commencing on the Completion Date;

b) in any other case, the date falling two (2) years after (and including) the date of Completion.

3.2 Liability of Vendor to terminate

The liability of the Vendor in respect of a claim notified in accordance with paragraph 3.1 (No claim unless notice in writing) shall absolutely terminate (if that claim has not been previously satisfied, settled or withdrawn) (and without affecting any time limit set out in paragraph 3.1) if legal proceedings in respect of that claim shall not have been properly issued and validly served on the Vendor within six (6) months or, in the case of any claim relating to Taxation, three (3) years after the date of service of that notice.

4. Specific limitations

The Vendor will have no liability in respect of any claim (other than a claim under Part 2 of Schedule 4 when the provision of paragraph 4 of Schedule 4 shall apply):

4.1 to the extent that it arises or is increased as a result of the passing of, or a change in, any law, rule, regulation, interpretation of the law or administrative practice of a government, government department, agency or regulatory body or an increase in rates of taxation after Completion, or any provision or reserve in the Accounts and/or the Management Accounts being insufficient by reason of any increase in rates of taxation after Completion;

4.2 if it would not have arisen but for any voluntary act, omission, transaction or arrangement carried out after Completion outside of the ordinary course of its business (unless pursuant to a legally binding obligation incurred prior to Completion) by the Purchaser or the Company or any of their respective directors, employees or agents or successors in title;

4.3 to the extent that such claim arises, or has otherwise arisen and is increased, as a result of any reorganisation or change made in the ownership of the Company after Completion or any change in any accounting or taxation policies or practice or accounting reference date of the Company (other than to comply with the law or Accounting Standards in force at the date hereof) made after Completion;

4.4 to the extent that it relates to any loss for which:

4.4.1 the Company would have had a right of recovery if the insurance which had been in force immediately prior to Completion (and which was fairly disclosed to the Purchaser) had been maintained at the relevant time; and

.4.4.2 the Purchaser or the Company recovers under any policy of insurance in force at the relevant time subject to the Vendor reimbursing to the Purchaser the amount of the insurance premium actually incurred by the Company or the Purchaser in respect of any relevant insurance which made good the relevant loss;

4.5 to the extent that the subject matter of the claim is a matter provided for, or included as a liability or is disclosed, in the Accounts and/or the Management Accounts and/or the Completion Accounts save that in relation to the Completion Accounts the Vendor will have no liability in respect of a claim only to the extent that the relevant provision (or inclusion of liability) has the effect of reducing the Consideration paid by the Purchaser (either by reducing the Excess or increasing the Deficit); or

4.6 the damage, liability or loss suffered or incurred by the Purchaser or the Company has been made good or has been otherwise been compensated for without cost to the Purchaser or the Company.

5. Recovery from third parties

5.1 Save where the provisions of paragraph 11 of Schedule 4 would apply, if the Vendor pays the Purchaser or the Company a sum to settle or discharge a claim and the Purchaser or the Company subsequently recovers whether by payment, discount, credit, relief or otherwise from any third party (including any tax authority) a sum which is referable to the claim then:

5.1.1 either the Purchaser will (or will procure that the Company will) repay the Vendor as soon as reasonably practicable the amount recovered from the third party less any taxation payable on such sum and any costs and expenses incurred in recovering the same; or

5.1.2 if the figure resulting under paragraph 5.1.1 above is greater than the amount paid by the Vendor to settle or discharge the claim, then the Purchaser is only obliged to repay to the Vendor such amount as is equivalent to the sum paid by the Vendor in settlement or discharge of that claim.

6. No double recovery

The Purchaser is not entitled to recover damages or otherwise obtain payment, reimbursement or restitution more than once in respect of the same loss or liability.

7. Contingent Liabilities

If any potential claim arises as a result of a contingent liability of the Company, the Vendor will not be obliged to pay any sum in respect of the potential claim until the liability ceases to be contingent and becomes an actual liability provided that, where any such claim is contingent, the Purchaser shall still be entitled to serve notice of any such claim pursuant to paragraph 3.1 and the period in which to serve proceedings as referred to in clause 3.2, shall not commence until such contingent liability becomes an actual liability.

8. Conduct of Relevant Claims

8.1 If the Purchaser or the Company becomes aware of a claim or a potential claim by a third party (“Third Party Claim”) that will or is likely to give rise to a claim (other than a claim under Part 2 of Schedule 4 when the provisions of paragraph 7 of Schedule 4 shall apply) and save where to do so would or might reasonably breach or endanger the Purchaser’s privilege in any documents or records, or render unavailable any applicable insurance coverage, the Purchaser will (or will procure that the Company will):

8.1.1 as soon as reasonably practicable notify the Vendor in writing of the Third Party Claim and of the matters which will or are likely to give rise to such claim;

8.1.2 not make any admission of liability, agreement or compromise with any person, body or authority in relation to the Third Party Claim without first consulting with the Vendor;

8.1.3 consult with the Vendor regarding the conduct of such Third Party Claim;

8.1.4 if requested by the Vendor give the Vendor and its professional advisers reasonable access to:

8.1.4.1 the personnel of the Purchaser and/or the Company in order to interview the personnel;

8.1.4.2 any relevant premises, chattels, accounts, documents and records within the power, possession or control of the Purchaser and/or the Company in order to, at the Vendor’s own expense, examine and photograph the premises and chattels and to examine, photograph and take copies of the accounts, documents and records;

8.1.5 take such action as the Vendor may reasonably request to avoid, resist, contest, defend, compromise or remedy the Third Party Claim or the matters which will or are likely to give rise to such claim subject to the Vendor and the Vendor’s Guarantor first indemnifying the Purchaser and the Company to the Purchaser’s reasonable satisfaction for all reasonable costs and expenses, damages or losses incurred as a result of a request by the Vendor.

8.2 Notwithstanding any other provision of this paragraph 8, the Purchaser shall not be required to take, permit or omit, or procure the taking, permitting or omission of, any step or action in relation to any Third Party Claim if and to the extent that the Purchaser acting in good faith, reasonably considers that the taking, permitting or omission of the relevant step or action would have a material adverse effect on any trading relationship or goodwill of any member of the Group or the Purchaser’s Group.

9. Mitigation

Nothing in this Schedule 7 shall in any way restrict or limit the Purchaser’s common law duty to mitigate its loss including mitigating any loss of the Company.

10. No Limitations for Fraud

Nothing in paragraph 2 of this Schedule 7 shall have the effect of limiting or restricting any liability of the Vendor in respect of a claim arising as a result of any fraud or dishonest or wilful misconduct by the Vendor.

11. Payment of Relevant Claim to be reduction in consideration

Any amount paid by the Vendor in respect of a successful claim under this Agreement shall not constitute nor be deemed to constitute a reduction in the amount of the Consideration paid or payable to the Vendor.

12. Records

The Purchaser shall and shall procure that the Company will retain and preserve all books, records, documents and information of or relating to the Company which are or may be relevant in connection with defending any claim brought by the Purchaser against the Vendor under this Agreement for so long as any actual or prospective claims remain outstanding.

SCHEDULE 8

Completion Adjustment

1. Interpretation

In this Schedule 8 the following expressions have the following meanings:

“Agreed Accounting Principles”		means the accounting policies and principles adopted in preparing the Accounts, which accounting policies and principles are to be applied in compiling the Completion Accounts in accordance with this Schedule 8

“Cash”		all cash and cheques at bank credited in any account with a bank of the Company including uncleared or unpresented cheques received or issued by the Company (excluding, for the avoidance of doubt, any cheque or other method of payment of sum of £46,648.35 relating to the payment of outstanding invoices issued by British Telecommunications plc to the Company or the Subsidiaries prior to the Completion Accounts Date) save to the extent that such cheques relate to debts taken into account in the Target Net Working Capital

“Cash Statement”		the statement of Cash as at the Completion Accounts Date

“Completion Accounts”		the statement of Net Working Capital prepared in accordance with paragraph 2

“Completion Accounts Date”		5pm 24 September 2004

“Net Working Capital”		the aggregate value of the current assets of the Company (excluding any intangible assets, intercompany loans, intercompany trading balances and Cash) less the aggregate amount of the current liabilities of the Company (but excluding intercompany loans, intercompany trading balances and Cash) as at the Completion Accounts Date as shown by the Completion Accounts

“Target Net Working Capital”		the sum of negative £1,205,690 (a liability of one million two hundred and four thousand pounds sterling)

“UK GAAP”		all applicable laws and accounting conventions, standards, principles and practices including Financial Reporting Standards, statements of Standard Accounting Practice and Audit Guidelines having current force which are generally accepted in the United Kingdom

2. Completion Accounts

2.1 The parties shall procure that forthwith after the Completion Accounts Date Completion Accounts of the Company and the Cash Statement shall be prepared in accordance with the provisions of this Schedule 8.

2.2 The Completion Accounts shall consist of a statement of the Net Working Capital as at 5.00 p.m. on the Completion Accounts Date.

2.3 The Completion Accounts shall:

2.3.1 apply the Agreed Accounting Principles;

2.3.2 apply and adopt the same judgments, bases and policies of accounting and valuation methods as applied or adopted for the purposes of the Management Accounts; and

2.3.3 be prepared under the historical cost convention in accordance with the requirements of UK GAAP.

If there is a conflict between the provisions set out in paragraph 2.3.1, 2.3.2 and 2.3.3, 2.3.1 shall prevail over 2.3.2 and 2.3.2 shall prevail over 2.3.3.

2.4 The Completion Accounts shall make no provision for the following items which shall also be excluded for the purposes of calculating the Net Working Capital:-

2.4.1 intercompany balances owed to/from the Vendor’s Group;

2.4.2 Cash;

2.4.3 the KP Claim and KP Counterclaim;

2.4.4 any liabilities in connection with the termination of the employment of Xxxx Xxxxxxxxx and any other officer and/or employee of the Company (except as provided in paragraph 2.5.4 below) on or after Completion; and

2.4.5 the payment of £46,648.35 to British Telecommunications plc in respect of outstanding invoices.

2.5 The Completion Accounts shall make the following provisions for the purposes of calculating Net Working Capital:

2.5.1 £68,000 for the claim by Cable & Wireless regarding low usage charges as detailed in the Disclosure Letter ;

2.5.2 £40,000 for the claims by Fibernet as detailed in the Disclosure Letter; and

2.5.3 £35,000 in respect of the termination of employment of Xxxxxxx Xxxxx.

3. Procedure

3.1 The Purchaser shall procure that within 2 months after the Completion Accounts Date the Purchaser shall deliver a final draft of the Completion Accounts to the Vendor (“Draft Completion Accounts”) and of the Cash Statement (“Draft Cash Statement”). If the Vendor does not serve a Dispute Notice (as defined below) in accordance with paragraph 3.2 the Draft Completion Accounts shall constitute the Completion Accounts and the Draft Cash Statement shall constitute the Cash Statement.

3.2 If within the period of 15 Business Days following delivery to the Vendor by the Purchaser of the Draft Completion Accounts, the Vendor shall notify the Purchaser in writing that it does not accept the Draft Cash Statement and/or that the Draft Completion Accounts comply with paragraph 2 (“Dispute Notice”) then the Vendor and the Purchaser shall use all reasonable endeavours to reach agreement upon adjustment of the said draft or drafts (as the case may be) within a further 10 Business Days. The Dispute Notice shall specify (a) which items are disputed, (b) the reasons therefor and, to the extent practicable, (c) the effect the Vendor believes that the items in dispute have on Net Working Capital and/or Cash (as the case may be). Only those items or amounts specified in the Dispute Notice shall be treated as being in dispute.

3.3 If the Vendor accepts in writing or the Vendor is deemed (pursuant to paragraph 3.1) to accept the Draft Cash Statement or that the Draft Completion Accounts comply with paragraph 2 then the Draft Completion Accounts shall be the Completion Accounts and/or the Draft Cash Statement shall be the Cash Statement (as appropriate) for the purposes of this Agreement and shall be final and binding on the parties.

3.4 In the event that the Vendor and the Purchaser are unable to reach agreement in the further period of 10 Business Days specified in paragraph 3.2 any matter in dispute and the amount of Net Working Capital or Cash (as the case may be) shall be referred to and determined by such independent accountant as they shall agree or, failing agreement within 2 Business Days of expiry of the period referred to in paragraph 3.2, to such accountant as shall be appointed on the application of either the Vendor or the Purchaser, by the President for the time being of the Institute of Chartered Accountants in England and Wales (the “Independent Accountant”). In giving his decision the Independent Accountant shall state what adjustments (if any) are to be made to the Draft Cash Statement and/or the Draft Completion Accounts in order that they shall comply with paragraph 2 and the amount of the Net Working Capital and/or Cash.

3.5 The Vendor and the Purchaser shall provide the Independent Accountant with such access to the books and records of the Group as the Independent Accountant may reasonably request. The Vendor and the Purchaser shall each be entitled to make representations to the Independent Accountant concerning the items and amounts set out in the Dispute Notice.

3.6 Any such decision of the Independent Accountant shall be final and binding on the Vendor and the Purchaser (save in the case of fraud or manifest error) and shall be given by the Independent Accountant as expert and not as arbitrator.

3.7 The costs of the Independent Accountant (if applicable) shall be borne as he or they shall direct or in the absence of such direction by the Vendor and the Purchaser in equal half shares.

3.8 The Vendor and the Purchaser shall give such assistance to each others accountants and to the Independent Accountant as may be reasonably required by them.

4. Adjustment of Consideration

4.1 When the Completion Accounts have become final and binding (whether under paragraph 3.3 or by virtue of a decision of the Independent Accountant) the Consideration shall be subject to the following adjustments:

4.1.1 there will be added thereto, the amount, if any, by which the Net Working Capital is greater than the Target Net Working Capital (the “Excess”); or

4.1.2 there will be deducted therefrom, the amount, if any, by which the Net Working Capital is less than the Target Net Working Capital (the “Deficit”).

provided that there shall be no adjustment to the Consideration if the Excess or the Deficit (as the case may be) is within 10 per cent (more or less) of the Target Net Working Capital.

4.2 Subject to the proviso to paragraph 4.1 an amount equal to the Excess or the Deficit shall be paid by the Purchaser or the Vendor (as the case may be) within 7 Business Days after the Completion Accounts have become final and binding as aforesaid.

4.3 When the Cash Statement has become final and binding (whether under paragraph 3.3 or by virtue of a decision of the Independent Accountant), the Vendor shall, if Cash is less than £739,132 (“Cash Deficit”), pay to the Purchaser the amount of the Cash Deficit within 7 Business Days after the Cash Statement has become final and binding as aforesaid. In the event that Cash is more than £739,132 (such amount being the “Cash Excess”) the Purchaser shall pay to the Vendor (or, at the Vendor’s election such Cash Excess may be deducted from the funds standing to the credit of the Retention Fund at that time) the amount of the Cash Excess within 7 Business Days after the Cash Statement has become final and binding as aforesaid.

4.4 Any amount not paid when due under this Schedule 8 shall carry interest on the amount to be paid at the annual rate of 3 per cent. above the base lending rate from time to time of HSBC Bank plc from the due date until the date of actual payment (as well after judgment as before).

4.5 All sums payable to the Purchaser under this Schedule shall first be settled from the Retention Fund and thereafter be paid in cash by telegraphic transfer to the Purchaser’s Solicitors (at Barclays Bank plc, Account Number 00000000, Sort Code 20-65-82) and payment to them will be a good and sufficient discharge to the Purchaser and the Vendor will not be further concerned as to the application of the moneys so paid and in respect of any payments to the Vendor the provisions of clause 3.3 shall apply.

SCHEDULE 9

Provisions regarding Retention Fund

The Retention Fund will be paid on Completion by the Purchaser into a joint on-demand interest bearing deposit account with Yorkshire Bank in the name of the Purchaser’s Solicitors and the Vendor’s Solicitors (the “Retention Fund Holders”) who will hold the Retention Fund as stakeholders upon trust for the Purchaser and the Vendor on the following terms:

1. Subject as provided in paragraphs 3 and 6, the Retention Fund Holders will pay £1,000,000 (one million pounds) of principal of the Retention Fund to the Vendor’s Solicitors in the manner provided in paragraph 6.1 of Schedule 5 at the expiration of six months from and including the date of Completion, together with fifty per cent. of the interest accrued on the balance standing to the credit of the Escrow Account, net of bank and electronic funds transfer charges.

2. Subject as provided in paragraphs 3 and 6, the Retention Fund Holders will pay the balance of the Retention Fund to the Vendor’s Solicitors in the manner provided in paragraph 6.1 of Schedule 5 at the expiration of one year from and including the date of Completion (including any interest accrued on the balance standing to the credit of the Escrow Account, net of bank and electronic funds transfer charges).

3. If prior to the expiration of the periods referred to in paragraph 1 and paragraph 2 (each a “Relevant Date”) the Purchaser shall have given written notice to the Vendor of a bona fide claim under or arising out of or in connection with this Agreement, the Warranties or under the Tax Covenant (“Claim”) the following provisions shall apply:

3.1 to the extent that such Claim shall not have been Settled (as hereinafter defined) by the Relevant Date then on receipt by the Vendor and Purchaser prior to the Relevant Date of an opinion of Counsel (instructed in accordance with paragraph 3.3 below) to the effect that on the balance of probabilities the Purchaser is likely to succeed in its Claim and specifying the quantum which is Counsel’s best estimate of the amount which the Purchaser will recover in the event of a successful Claim then the Purchaser shall be entitled to defer payment of such amount of the Retention Fund as is equal to such estimate pending the Claim being Settled and such amount (up to the maximum amount of the Retention Fund) shall be retained in the Escrow Account and the balance of any sum payable pursuant to paragraph 1 or paragraph 2 shall be paid to the Vendor’s Solicitors in accordance with such relevant paragraph;

3.2 as soon as possible following the Claim being Settled (and in any event within 10 Business Days thereof) there shall be paid to the Vendor from the Escrow Account a sum equal to the amount (if any) for which the Claim was Settled below the amount which was retained in the Escrow Account except that no such payment shall be required to the extent that there are additional unsettled Claims to which the provisions of this Schedule 9 shall have been applied. The amount of any Claim so Settled shall be treated as a reduction pro tanto of the Purchaser’s obligation to pay in whole or in part the Consideration and there shall be paid to the Purchaser

from the Escrow Account to the fullest extent possible an amount equal to the Settled Amount.

4. A Claim shall be regarded as “Settled” for the purpose of this Schedule 9 if either:

4.1 the Vendor and the Purchaser (or their respective Solicitors) shall so agree in writing; or

4.2 a Court has awarded judgement in respect of the Claim and either no right of appeal lies in respect of such judgement or the parties are debarred whether by passage of time or otherwise from exercising any such right of appeal or the parties in whose favour the right of appeal subsists fails to lodge such appeal within 28 days of such judgment

and “Settled Amount” shall mean the amount for which the Claim is Settled (including interest and costs).

5. For the purposes of paragraph 3.2, the Counsel to be instructed as herein provided shall be of such age and experience as is commensurate with the nature of and sums involved in the Claim being made and as shall be agreed upon by the Vendor and the Purchaser or in the absence of such agreement within 3 Business Days as shall be nominated at the request of either the Vendor or the Purchaser by the President for the time being of the Law Society (“Counsel”). The Counsel shall be instructed by the Purchaser’s Solicitors and the Purchaser’s Solicitors shall, in the first instance, provide the Vendor’s Solicitors with instructions to Counsel for their approval (such approval not to be unreasonably withheld or delayed). The reasonable comments and amendments of the Vendor’s Solicitors shall be included in the instructions to Counsel. In the event that the Vendor’s Solicitors fail to provide any such comments and amendments within 3 Business Days, the Purchaser’s Solicitors shall be entitled to instruct Counsel without further reference to the Vendor’s Solicitors. Such Counsel’s costs shall be borne by the Purchaser but shall be taken into account as costs as appropriate in connection with the settlement of the Claim.

6. Where any payment is made to the Purchaser out of the Escrow Account as provided in this Schedule, the Purchaser shall at the same time be entitled to a corresponding proportion of the interest accrued on the proportionate balance of the Retention Fund. Otherwise all interest accrued on the Retention Fund shall be payable to the Vendor at the time of payment to the Vendor out of the Retention Fund in accordance with this Schedule. All payments of interest to the Purchaser or the Vendor shall be made in accordance with their respective instructions and shall be less any tax on such interest for which the Retention Fund Holders may be accountable.

7. If any interest on sums due to the Purchaser will be included in any determination or award and paid to the Purchaser out of the Retention Fund then the amount of interest payable to the Purchaser under paragraph 6 will be reduced by the amount of such interest determined or awarded.

8. The amount of money in the Retention Fund is not to be regarded as imposing a limit on the amount of any compensation or indemnity which may be claimed by the Purchaser.

9. The Vendor and the Purchaser will execute the Retention Fund Instruction Letter and deliver it to its addressees, and will promptly take all such steps and promptly give all such other written instructions, as are necessary or desirable to give effect to the provisions of this Schedule.

10. The Purchaser shall only have direct recourse against the Vendor or the Vendor’s Guarantor to satisfy a Settled Amount in respect of a Claim, once the Retention Fund has either been exhausted or paid to the Vendor.

RETENTION FUND INSTRUCTION LETTER

From:	VIA XXX.XXXXX Europe B.V.; and

	Claranet Limited

TO:	Eversheds LLP
	Eversheds House
	00 Xxxxx Xxxxxxxxxxx Xxxxxx
	Xxxxxxxxxx
	X0 0XX


	Xxxxx Xxxxxx	{DATE} 2004
	00 Xxxxx Xxxxxx
	Xxxxxx
	XX0X 0XX

Dear Sirs

Retention Fund

This Retention Fund Instruction Letter relates to the Escrow Account as defined in an agreement (“the Share Purchase Agreement”) dated {DATE} 2004 between inter alia the Vendor and the Purchaser (each as defined in the Share Purchase Agreement) relating to the sale and purchase of the issued share capital of Via Xxx.Xxxxx UK Limited. Words and expressions defined in the Share Purchase Agreement shall, save as otherwise defined or as the context may require in this letter, have the same meanings in this letter.

We hereby jointly and irrevocably instruct you as follows:

1. You shall maintain the Retention Fund in a separately designated interest bearing deposit account with Yorkshire Bank plc, such account to be opened by instruction letter in the form annexed to this letter and bank mandate forms previously supplied to such bank and held in your joint names as stakeholders upon trust for us.

2. The Retention Fund shall be held on six month call unless you receive written instructions to the contrary signed on our behalf in accordance with paragraph 4 of this letter.

3. Any payments from the Retention Fund shall be made by you in accordance with the provisions of Schedule 9 of the Share Purchase Agreement. You shall not deal with the funds held from time to time in the Retention Fund except in accordance with the provisions of this Retention Fund Instruction Letter, Schedule 9 of the Share Purchase Agreement or any written instructions signed on our behalf in accordance with paragraph 5 of this letter.

4. You may (without making any further enquiries or checks) rely on and be protected in acting or refraining from acting on any written instructions, notice or request given by the Purchaser and the Vendor if provided by any one person for each of the Purchaser and the Vendor whose name and specimen signature is set out in the annexure to this letter and it shall not be necessary for you to enquire into the authority of any signatory or the authenticity of any such signature.

5. You may withdraw from the Retention Fund and account to the Inland Revenue for any amount of tax payable on the interest earned on the Retention Fund for which you are accountable.

6. You are authorised to pay any bank charges incurred in the conduct of the Retention Fund out of funds standing from time to time to its credit.

7. We shall each pay one half of your costs and expenses in relation to the establishment of the Retention Fund and its administration.

8. Neither of you shall be liable for any loss or damage occurring as a result of any act, mistake or omission made by you in good faith or by reason of any other matter or thing except where arising out of your fraud, wilful default or negligence.

9. We jointly and severally agree to indemnify each of you against all actions, proceedings, claims, demands, liabilities, costs and expenses which you may suffer or incur in connection with the performance of your obligations under this letter, save insofar as the same result from your fraud, wilful default or negligence.

10. The provisions of this letter will apply to and enure for the benefit of the partners and/or members for the time being of each of the firms respectively to whom it is addressed and to the partners and/or members of any firm resulting from any reconstitution or name change of either firm and references to “partners”, “members” or “firms” will include references to such partners, members or firms.

11. This letter shall be governed by and construed in accordance with English law.

Please indicate your acceptance of the instructions contained in this letter by signing and returning one of the two enclosed copies of this letter to each of us.

Yours faithfully


Claranet Limited



VIA XXX.XXXXX EUROPE HOLDINGS B.V.

Annex to Retention Fund Instruction Letter

Purchaser signatories

	[ ]
Name	Office	Signature


	[ ]
Name	Office	Signature

Vendor signatories


	[ ]
Name	Office	Signature


	[ ]
Name	Office	Signature

BANK INSTRUCTION LETTER

TO:

Yorkshire Bank

Manchester Regional Business Centre

The Chancery

Spring Gardens

Manchester

M2 17B

Dated

Dear Sirs

We, the undersigned, hereby request that you open an interest bearing deposit account in the joint names of Eversheds LLP and Xxxxx Xxxxxx subject to the following conditions:

1. Interest is to be credited to the account gross.

2. Withdrawals at any time or times from the deposit account are to be made in accordance with written instructions addressed to you, provided that they are signed by two of the authorised signatories listed below, one from Eversheds LLP and one from Xxxxx Xxxxxx.

3. You are entitled to deduct your reasonable and proper charges from the amount for the time being standing to the credit of the deposit account.

4. This authority will remain in force until revoked notwithstanding any change in the constitution or name of the firms specified below and will apply notwithstanding any change in the membership of the firms by death, bankruptcy, retirement or otherwise, or the admission of any new partner or partners.

5. Statements shall be supplied monthly to each of Eversheds LLP (for the attention of Xxxx Xxxxxxxx) and Xxxxx Xxxxxx (for the attention of Xxxxxx Xxxx).

List of Authorised Signatories

0.XXXX	0.XXXXXX HELD	3.SPECIMEN SIGNATURE
EVERSHEDS LLP

Xxxxx Xxxxx	Partner

Xxxxxxxx Blower	Partner

Xxxxxxxxxxx Xxxx	Partner

Xxxxxxxxxxx Xxxxxxx	Partner

XXXXX XXXXXX

Xxxxxx Xxxx		Partner

Xxxxxx Xxxxx		Partner

Xx Xxxxx		Partner

Xxxx Xxxxxxxxx		Partner

Yours faithfully



XXXXX XXXXXX			Date


EVERSHEDS LLP			Date

SCHEDULE 10

People of whom enquiry has been made for the purpose of Vendor awareness

Xxxx Xxxxxx Xxxxxx

Xxxx Xxxxxxxxx

Xxx Xxxxx

Xxxxxxx Xxxxx

Xxxxxxx Xxxxxxxxx

SCHEDULE 11

Identified Prospects under “Sales Radar”

Omitted.

SCHEDULE 12

Computer Equipment

Omitted.

SCHEDULE 13

Documents to be submitted to the Inland Revenue for adjudication (clause 24)

1. Agreement for the sale and purchase of the business and assets of Netlink Internet Services Limited dated 1 December 2000 between Netlink Internet Services Limited and VIA XXX.XXXXX UK Limited;

2. Agreement for the sale and purchase of the business and assets of U-Net Limited dated 1 December 2000 between U-Net Limited and VIA XXX.XXXXX UK Limited;

3. Agreement for the sale and purchase of the business and assets of I-Way Limited between 1-Way Limited and VIA XXX.XXXXX UK Limited; and

4. Agreement for the sale and purchase of the business and assets of Worldwide Web Services Limited dated 1 December 2000 between Worldwide Web Services.

SIGNED by Xxxx Xxxxxx

duly authorised on behalf of

VIA XXX.XXXXX EUROPE

HOLDING B.V.

in the presence of :

Witness Name:

Address:

Occupation:

Signature:	/s/


SIGNED by Xxxx Xxxxxx
duly authorised on behalf of
VIA XXX.XXXXX, INC
in the presence of:

Witness:

Address:

Occupation:

Signature:	/s/


SIGNED by Xxxxxxx Xxxxxx
duly authorised on behalf of
CLARANET LIMITED
in the presence of :

Witness:

Address:

Occupation:

Signature:

/s/

SIGNED by	Xxxxxxx Xxxxxx
duly authorised on behalf of
XXXXX.XXX HOLDINGS LIMITED
in the presence of :

Witness:

Address:

Occupation:

Signature:

Document Metadata

Table of Contents

A G R E E M E N T For the sale and purchase of the entire share capital of Via Net.Works UK Limited EVERSHEDS LLP Eversheds House Manchester M1 5ES Tel +44 (0) 161 831 8000 Fax +44 (0) 161 831 8888

0.XXXX

0.XXXXXX HELD

3.SPECIMEN
SIGNATURE

Document Metadata

A G R E E M E N T For the sale and purchase of the entire share capital of Via Net.Works UK Limited EVERSHEDS LLP Eversheds House Manchester M1 5ES Tel +44 (0) 161 831 8000 Fax +44 (0) 161 831 8888

(a) the personnel of the Purchaser and/or the Company in order to interview the personnel;

(b) any relevant premises, chattels, accounts, documents and records within the power, possession or control of the Purchaser and/or the Company in order to, at the Vendor’s own expense, examine and photograph and take copies of the accounts, documents and records.

(i) paragraphs 2.2, 4.4.1 and 4.5 shall not apply to clause 24.1; and

0.XXXX

0.XXXXXX HELD

3.SPECIMEN SIGNATURE

Document Metadata

3.SPECIMEN
SIGNATURE