EX-2.1 2 ex2-1.htm

 

Exhibit 2.1

 

AGREEMENT

for the sale and purchase of

ELECTRIC BLUE LIMITED

 

THE SELLERS (as defined in this Agreement) (1)
   
BLINK HOLDINGS B.V. (2)
   
BLINK CHARGING CO. (3)

 

Ref: Ellie.shanahan@burges-salmon.com

Burges Salmon LLP

www.burges-salmon.com

Tel: +44 (0)117 939 2000

Fax: +44 (0)117 902 4400

 

 

 

 

CONTENTS

  

Clause   Heading   Page
         
1   Definitions and Interpretation   1
         
2   Sale and Purchase of Shares   15
         
3   Consideration for the Shares   15
         
4   CONSIDERATION SHARES   16
         
5   Earn-Out   17
         
6   Options   17
         
7   Leakage   18
         
8   Completion   19
         
9   Warranties   19
         
10   Limitations on liability   20
         
11   Indemnities   21
         
12   Tax   22
         
13   Protection of Goodwill   22
         
14   Seller Undertakings   26
         
15   Access to Seller Information   27
         
16   Clean Break   28
         
17   No Claims Against the Group   28
         
18   Announcements   29
         
19   Confidentiality   29
         
20   Further Assurance   31
         
21   Guarantees   32

 

 

 

 

22   Assignment and Successors   32
         
23   Waiver   33
         
24   Notices   33
         
25   Sellers’ Representative   35
         
26   Conflict with other Agreements   36
         
27   Entire Agreement   36
         
28   Contracts (Rights of Third Parties) Act 1999   37
         
29   Costs   37
         
30   Payments And Interest   37
         
31   Set-Off   38
         
32   Claims against Professional Advisers   41
         
33   Execution and Counterparts   41
         
34   Variations   41
         
35   Invalidity   41
         
36   Continuing Obligations   42
         
37   Remedies   42

 

Schedule 1 - The Sellers 43
   
Schedule 2 - The Company and Subsidiaries 47
Part A - The Company 47
Part B - The Subsidiaries 48
   
Schedule 3 - Completion Arrangements 50
Part A - Sellers’ obligations on Completion 50
Part B - Buyer’s obligations on Completion 53
   
Schedule 4 - Warranties 54
Part A - Fundamental Warranties 55
Part B - General Warranties 57
Part C - Tax Warranties 96

 

 

 

 

Schedule 5 - Limitations on liability 103
   
Schedule 6 - EB Sites 110
Part A - Leasehold Properties 110
   
Schedule 7 - Tax Schedule 113
   
Schedule 8 - Escrow Account and Escrow Shares 133
   
Schedule 9 - Continuing Contracts 138
   
Schedule 10 - Earn-Out 139
Part A - Definitions 139
Part B - Earn-Out Payments 143
Part C - Preparation of Earn-Out Statements 145
Part D - Expert 148
Part E - Conduct during Earn-Out Period 150
Part F - Example Earn-Out Calculations 152
   
Schedule 11 - Permitted Leakage 155
   
Schedule 12 156
   
Schedule 13 - Options table 158
   
Schedule 14 - Buyer and Blink warranties 159

 

 

 

 

THIS AGREEMENT is made on 22 April 2022

 

BETWEEN:

 

(1)THE PERSONS whose names and addresses are set out in Schedule 1 (together the “Sellers”);

 

(2)BLINK HOLDINGS B.V. a limited liability company (besloten vennootschap) incorporated, organised and existing under the laws of Netherlands whose principal place of business is at Mr. Treublaan 7, 1097DP Amsterdam, Netherlands under number 82103569 (the “Buyer”); and

 

(3)BLINK CHARGING CO. a NASDAQ listed company whose registered office is 605 Lincoln Road, Miami Beach, FL 33139-3024, United States (“Blink”).

 

BACKGROUND

 

1The Company is a private company limited by shares and registered in England and Wales. Further information relating to the Company and its Subsidiaries are set out in Schedule 4.

 

2The Sellers hold legal and beneficial title to the number of Shares (for the avoidance of doubt including those Shares resulting from the exercise of the Options) set out opposite their respective names in Schedule 2 and have the power and authority to transfer legal and beneficial ownership of such Shares to the Buyer at Completion.

 

3The Sellers have agreed to sell, and the Buyer has agreed to purchase, the Shares (being the entire issued share capital of the Company as at Completion) in accordance with the terms of this Agreement.

 

4The Buyer is a wholly owned subsidiary of Blink. Blink is a party to this Agreement for the purposes of the issuance of the Consideration Shares only.

 

THE PARTIES AGREE AS FOLLOWS:

 

1Definitions and Interpretation

 

1.1In this Agreement unless the context otherwise requires:

 

Accounts” means the audited consolidated accounts of the Group for the financial year ended on the Accounts Date, copies of which are in the Data Room;

 

Accounts Date” means 31 December 2020;

 

Agreed Form” means, in relation to a document, in the form clearly and expressly agreed between the Sellers’ Representative and the Buyer or on their behalf on or before the Completion Date;

 

Agreement” means this sale and purchase agreement (as amended from time to time);

 

1

 

 

“Blink’s Stock Price” means dollar volume-weighted average price for Blink common stock on The Nasdaq Capital Market as calculated in accordance with clause 3.3(b);

 

Business Day” means a day on which clearing banks are open in London for ordinary banking business, excluding Saturdays, Sundays and any day which is a public holiday in England and Wales or the Netherlands;

 

Buyer’s Announcement” means the announcement in relation to the Proposed Transaction to be released by the Buyer;

 

Buyer Payment” means any amount payable by the Buyer or any other member of the Buyer’s Group including any such amounts satisfied by way of Cash Consideration, the issue and allotment of Completion Consideration Shares and/or Earn-Out Consideration Shares to any of the Sellers (or any of their connected persons) under or in connection with any of the Transaction Documents;

 

Buyer’s Group” means the Buyer, its subsidiaries, the ultimate holding company of the Buyer and any subsidiary of the ultimate holding company of the Buyer from time to time, each being “a member of the Buyer’s Group”;

 

Buyer’s Solicitors” means Burges Salmon LLP of One Glass Wharf, Bristol BS2 0ZX;

 

Calnan Family Loans” means:

 

  (a) the loan agreement dated 16 October 2017 made between (i) Tim Calnan; and (ii) Electric Blue Ltd;

 

  (b) the loan agreement dated 16 October 2017 made between (i) Emma Calnan; and (ii) Electric Blue Ltd;

 

  (c) the loan agreement dated 16 October 2017 made between (i) Nicola Calnan; and (ii) Electric Blue Ltd; and

 

  (d) the loan agreement dated 16 October 2017 made between (i) Mark Calnan; and (ii) Electric Blue Ltd.

 

Cash Consideration” has the meaning given to it in clause 3.1(a);

 

CBILS Loan” means the loan facility of up to £458,000 provided to EB Charging Ltd under the Coronavirus Business Interruption Scheme the terms of which are set out in document 4.1.3 of the Data Room;

 

CJRS” means the Coronavirus Job Retention Scheme established and governed by the CJRS Treasury Directions;

 

2

 

 

CJRS Treasury Directions” means the CJRS Treasury Directions made under sections 71 and 76 of the Coronavirus Act 2020;

 

Claim” means any claim for breach of any of the Warranties, other than a Fundamental Warranty Claim;

 

Claims Amount” means the aggregate sum of £8,000,000;

 

Companies Acts” means the Companies Acts as defined in section 2 of the Companies Act 2006;

 

Company” means Electric Blue Limited, details of which are set out in Part A of Schedule 2;

 

Completion” means completion of the sale and purchase of the Shares in accordance with this Agreement;

 

Completion Date” means the date of this Agreement;

 

Confidential Information” means all information relating to the business, customers, financial or other affairs of the Company or any other Group Company which is not in the public domain (including information concerning future proposals, business plans and sales targets);

 

Completion Consideration Shares” means the shares of common stock, par value $0.001 per share, of Blink, to be issued by Blink to the Sellers on Completion in accordance with clause 4 with an aggregate value equal to £2,500,000;

 

Consideration Shares” means the Completion Consideration Shares, the Escrow Shares and the Earn-Out Consideration Shares;

 

Contract” means any contract, agreement, arrangement, obligation, understanding, commitment or liability to which any Group Company is party and which creates legally binding obligations on that Group Company (but excluding any contract relating to an EB Site);

 

Counsel” means a barrister (qualified to practice in England and Wales) of not less than 10 years standing, having experience in claims similar to the Outstanding Claim;

 

COVID-19” means the 2019 outbreak of the novel coronavirus disease;

 

CTA 2009” means the Corporation Tax Act 2009;

 

CTA 2010” means the Corporation Tax Act 2010;

 

Data Protection Laws” has the meaning set out in paragraph 19.2 of Part B of Schedule 4;

 

Data Room” means the electronic data room comprising the documents and other information made available by the Sellers to the Buyer contained on the Project Xenon USB memory stick as listed on the data room index in the Agreed Form attached to the Disclosure Letter;

 

3

 

 

Deeds of Release and Termination” means the deeds of release and termination in the Agreed Form in respect of all security granted by certain Group Companies under the Existing Facilities and certain Group Companies’ obligations under the Existing Facilities to be entered into on the Completion Date;

 

Disclosed” means fairly disclosed (in such a manner and with sufficient details to enable a reasonable buyer of a company to make an informed assessment of the nature and scope of the matter disclosed) in or under the Disclosure Letter;

 

Disclosure Letter” means the disclosure letter of the same date as this Agreement from the Sellers to the Buyer;

 

Draft Earn-Out Statement” has the meaning given to it in Part A of Schedule 10;

 

Due Amount” means the amount (if any) due for payment by any relevant Sellers to the Buyer in respect of a Qualifying Claim;

 

Earn-Out Consideration Amount” has the meaning given to it in Part A of Schedule 10;

 

Earn-Out Consideration Shares” means the shares of common stock, par value $0.001 per share, of Blink, to be issued by Blink to the Sellers in accordance with clause 5 and Schedule 10 hereof;

 

Earn-Out Period” has the meaning given to it in Part A of Schedule 10;

 

EB Sites” means the sites described in Part A of Schedule 6;

 

Encumbrance” means any security, mortgage, charge, pledge, assignment, title retention, lien, assignation, hypothecation or other form of security, trust, right of set off or other third party right, claim or encumbrance including any right of option or pre-emption howsoever created or arising or any other agreement or arrangement having similar effect (or an agreement or commitment to create any of them);

 

Escrow Account” means the escrow account to be opened in the name of the Escrow Agent and operated in accordance with the terms of the Escrow Agreement;

 

“Escrow Agent” means JP Morgan Chase Bank;

 

Escrow Agreement” means the escrow agreement in the Agreed Form between the Sellers, the Buyer and the Escrow Agent in respect of the Escrow Account;

 

Escrow Amount” means £500,000;

 

Escrow Fund” means the Escrow Amount (or any part thereof as the case may be) plus all interest accruing on the same from time to time less all amounts deducted from the same from time to time, in each case in accordance with Schedule 8;

 

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Escrow Shares” means shares of Blink common stock with par value $0.001 per share, with a value equal to £500,000, that would otherwise be issuable as part of the Completion Consideration Shares or the Earn-out Consideration Shares (as applicable) less all amounts deducted from the same from time to time, in each case in accordance with Schedule 8;

 

Escrow Shares Release Date” means the date falling 18 months from the Completion Date;

 

Ethex Bond Agreement” means the agreement entered into on 10 April 2019 between Electric Blue Limited and the bondholders (as defined therein) in the form set out at document 4.1.6 of the Data Room;

 

Ethex Bond Repayment Date” means the date 90 calendar days from the Completion Date;

 

Exchange Rate” means, with respect to a particular currency for a particular day, the spot rate of exchange (the closing mid-point) for that currency into sterling on such date as published in the London edition of the Financial Times first published thereafter or, where no such rate is published in respect of that currency for such date, at the rate quoted by Barclays Bank plc as at the close of business in London on such date;

 

Existing Facilities” means:

 

  (a) the debenture dated 25 January 2022 made between: (i) the Company; and (ii) Hard Yards Global Limited;
     
  (b) the debenture dated 25 January 2022 made between: (i) the Company; and (ii) Kenya Matsumoto;
     
  (c) the CBILS Loan;
     
  (d) the loan agreement dated 16 October 2017 made between (i) Tim Calnan; and (ii) Electric Blue Ltd;
     
  (e) the loan agreement dated 16 October 2017 made between (i) Emma Calnan; and (ii) Electric Blue Ltd;
     
  (f) the loan agreement dated 16 October 2017 made between (i) Nicola Calnan; and (ii) Electric Blue Ltd; and
     
  (g) the loan agreement dated 16 October 2017 made between (i) Mark Calnan; and (ii) Electric Blue Ltd.

 

EV to Equity Bridge” means the excel spreadsheet in Agreed Form between the parties named “EV to Equity Bridge”;

 

Flexible Furlough” means a period of Furlough during which employees also work on a part-time basis, and “Flexibly Furloughed” shall be interpreted accordingly;

 

5

 

 

 

Fondcroft Parties” has the meaning given to it in clause 13.6(h) of this Agreement;

 

Fundamental Warranties” means the Warranties set out in Part A of Schedule 4;

 

Fundamental Warranty Claim” means a claim for breach of any of the Fundamental Warranties;

 

Furlough” means a temporary period of leave which satisfies the terms of the CJRS during which employees are not working but are kept on the payroll, and “Furloughed” shall be interpreted accordingly;

 

General Warranty Claim” means a claim for breach of the Warranties set out in Part B of Schedule 4;

 

Group” means the Company and the Subsidiaries and “Group Company” and “member of the Group” means any one of them;

 

Guarantee” means any guarantee, suretyship, indemnity, letter of comfort or other assurance, security or right of set off given or undertaken by a person (whether directly or by way of counter indemnity) to secure or support the obligations (actual or contingent) of any other person;

 

HMRC” means HM Revenue & Customs (and any successor(s) to it);

 

IHTA 1984” means the Inheritance Tax Act 1984;

 

Indemnity Claim” means any claim under any indemnity contained in clause 11;

 

Intellectual Property Rights” means all patents, trade marks, service marks and design rights (in each case whether or not registered or capable of registration), moral rights, copyright, rights in databases, utility models and all similar property rights, together with the rights subsisting in inventions, designs, drawings, processes, software and computer programmes, topography rights, know-how, trade or business secrets, business, brand or domain names or logos, confidential information (including the Confidential Information), rights in get-up and trade dress, goodwill or the style of presentation of goods or services or any similar right or asset or process capable of protection anywhere in the world including applications and the right to apply for registration or protection of the same;

 

ITA 2007” means the Income Tax Act 2007;

 

ITEPA 2003” means the Income Tax (Earnings and Pensions) Act 2003;

 

Investment and Shareholders’ Agreement” means the investment and shareholders’ agreement dated 6 January 2020 in respect of the Company, as subsequently amended and varied from time to time including pursuant to a deed of variation dated 13 July 2020;

 

6

 

 

Leakage” means each and any of the following:

 

(a)any actual or deemed dividend or other distribution (whether in cash or in specie) declared, paid or made by any Group Company to any Seller or any of their Related Persons;

 

(b)any payment by any Group Company to any Seller or any of their Related Persons in connection with the issue, purchase, repurchase, redemption, repayment or cancellation of any share capital, loan capital or other securities of any Group Company, or any other return of capital to any Seller or any of their Related Persons;

 

(c)any repayment of principal or payment of interest on or other payment in connection with any debt by any Group Company to any Seller or any of their Related Persons;

 

(d)any other payment, right or benefit of any nature made, conferred or granted by any Group Company to, on or for the benefit of any Seller or any of their Related Persons (including any ex gratia payments, royalty payments, management fees, monitoring fees, service or directors’ fees, salary, pension contributions, bonuses or other remuneration or compensation of any kind);

 

(e)any transfer, sale or other disposal at an undervalue or surrender of any assets, rights or other benefits by any Group Company to or for the benefit of any Seller or any of their Related Persons;

 

(f)any purchase by any Group Company from any Seller or any of their Related Persons of any assets or services not on arm’s length terms or otherwise at an overvalue to the average market value then prevailing;

 

(g)any Group Company assuming, incurring or discharging any liability or obligation of or for the benefit of any Seller or any of their Related Persons;

 

(h)the provision of any Guarantee or the creation of any Encumbrance by any Group Company in favour or for the benefit of (including in respect of the obligations or liabilities of) any Seller or any of their Related Persons;

 

(i)any waiver, discount, deferral, release or discharge by any Group Company of:

 

(i)any amount, obligation or liability owed to it by any Seller or any of their Related Persons; or

 

(ii)any claim against any Seller or any of their Related Persons;

 

(j)provided always that the Company repays the amount of £491,415.31 (being the total amount of principal and outstanding interest to be repaid under the Ethex Bond Agreement on the Ethex Bond Repayment Date as set out in the EV to Equity Bridge) on the Ethex Bond Repayment Date in accordance with the terms of the Ethex Bond Agreement, any additional amounts (whether principal, interest or otherwise) payable by the Company in relation to the Ethex Bond Agreement;

 

7

 

 

(k)any Group Company paying, incurring or otherwise assuming liability for any fees, costs or expenses (including professional advisers’ fees, consultancy fees, transaction bonuses, finder’s fees, brokerage or other commission) in connection with:

 

(i)the Proposed Transaction; or

 

(ii)any of the matters referred to in paragraphs (a) to (i) above;

 

(l)any agreement, arrangement or other commitment by any Group Company to do or give effect to any of the matters referred to in paragraphs (a) to (j) above,

 

at any time during the period from the Locked Box Accounts Date up to (and including) Completion; and

 

(m)any Tax incurred or that becomes payable by any Group Company as a result of or which is directly referable to any of the matters referred to in paragraphs (a) to (l) above,

 

but excluding any Permitted Leakage;

 

Leakage Claim” a claim under the undertakings given by the Sellers in clause 7.1;

 

Leasehold Properties” means the leasehold properties set out in Part C of Schedule 6 and “Leasehold Property” means any one of them or part or parts of any one of them;

 

Liability Amount” has the meaning given in clause 31.2(a);

 

Locked Box Accounts” means the unaudited accounts of the Company and the Group as at the Locked Box Accounts Date, a copy of which is contained in the “locked box balance sheet” tab of the document at 20.8.1 of the Data Room;

 

Locked Box Accounts Date” means 31 December 2021;

 

Lock-up Agreement” means the Lock-Up Agreement in the form annexed hereto as Schedule 12, to be entered into by each of the Sellers and Blink on Completion setting out the restrictions on dispositions during the Lock-up Period in respect of the Consideration Shares;

 

Lock-up Period” has the meaning given to it in clause 4.1;

 

Losses” means any and all losses, liabilities, damages, compensation, awards, costs (including legal costs), charges, fines, penalties, expenses, actions, proceedings, claims and demands, in each case of any nature whatsoever;

 

8

 

 

M Bull and T Mazzone Proceeds” means an amount equal to £21,720.83 to be paid by the Buyer to the Company to allow the Company to pay to M Bull and T Mazzone such amount less any applicable Tax in consideration for the sale of their Shares in accordance with clause 3.1(d);

 

Management Accounts” means the management accounts relating to each Group Company and the consolidated management accounts for the Group for each complete month from the Accounts Date to and including February 2022;

 

Option Documents” means the documents relating to the exercise by the Optionholders of the Options, each in the Agreed Form;

 

Optionholders” has the meaning given in clause 6;

 

Options” has the meaning given in clause 6;

 

Outstanding Claim” means a Relevant Claim that has been notified by the Buyer to any of the Sellers or the Sellers’ Representative, but which is not yet a Qualifying Claim or a Seller Determined Claim at the time that the relevant Buyer Payment is due and payable;

 

Pension Scheme” has the meaning given in paragraph 11.1 of Part B of Schedule 4;

 

Permitted Leakage” means the permitted payments, agreements, arrangements and other matters or circumstances set out or described in Schedule 11;

 

Permitted Representatives” means:

 

(a)in relation to the Buyer, each member of the Buyer’s Group and their respective directors, officers, employees, agents, advisers, accountants and consultants; and

 

(b)in relation to each Seller, the Sellers’ Representative and the Sellers’ respective advisers and accountants;

 

Pre-Contractual Statement” has the meaning given to it in clause 27.3;

 

Properties” means the Leasehold Properties and the EB Sites and “Property” means any one of them or any part or parts of any one of them;

 

Proposed Transaction” means the sale and purchase of the Shares contemplated by this Agreement;

 

Purchase Price” means the aggregate purchase price for the Shares as set out in clause 3.1

 

Qualifying Claim” means a Relevant Claim:

 

(a)which is agreed in writing between the Buyer and the relevant Sellers or the Sellers’ Representative as to both liability and quantum; or

 

(b)in respect of which a final and binding judgment against the relevant Sellers has been given in a court of competent jurisdiction (or in any arbitration to which the Buyer and the relevant Sellers or the Sellers’ Representative have agreed in writing to be subject);

 

9

 

 

 

Related Person” means in relation to a Seller any of that Seller’s connected persons, provided that for these purposes:

 

(a)no Group Company shall be a Related Person of any Seller;

 

(b)no member of the Buyer’s Group shall be a Related Person of any Seller; and

 

(c)no Seller shall be a Related Person of any other Seller;

 

Release Date” means the first anniversary of the Completion Date;

 

Relevant Claim” means any claim by the Buyer against any of the Sellers under any of the Transaction Documents;

 

Relevant Optionholders” means each of David Gee, Matthew Bill, Tony Mazzone and Trevor Watt;

 

Relief” has the meaning given to it in the Tax Schedule;

 

Reserved Sum” has the meaning given in clause 31.2(a);

 

Respective Proportions” means, in relation to the Sellers, the proportions set out opposite their respective names in column 4 of the table in Schedule 1;

 

Seller Determined Claim” means a Relevant Claim:

 

(a)which is unconditionally withdrawn by the Buyer by notice in writing to the relevant Sellers or Sellers’ Representative; or

 

(b)in respect of which a final and binding judgment (against which there is no right to appeal or the right of appeal has expired) against the Buyer has been given in a court of competent jurisdiction (or in any arbitration to which the Buyer and the relevant Sellers or Sellers’ Representative have agreed in writing to be subject);

 

Seller Payment” means any amount payable by any of the Sellers (or any of their connected persons) to the Buyer or any other members of the Buyer’s Group under or in connection with any of the Transaction Documents except in connection with a Relevant Claim;

 

Sellers’ Announcement” means the announcement in the Agreed Form in relation to the Proposed Transaction to be released by the Sellers;

 

10

 

 

Sellers’ Nominated Account” means the Sellers’ Solicitors’ bank account at:

 

Bank Bank of Scotland
Bank address 33 Old Broad Street, London BX2 1LB
Account name
Account number
Sort code

 

or, in relation to any payment to be made following Completion, such other bank account as notified by the Sellers’ Representative to the Buyer in writing at least three Business Days prior to the date on which the relevant payment is due;

 

Sellers’ Representative” means Alexander James Calnan or such other person appointed from time to time in accordance with the provisions of clause 25;

 

Sellers’ Solicitors” means Birketts LLP of 106 Leadenhall Street, London EC3A 4AA

 

Shareholder Loans” means the shareholder loans made by: (i) Kenya Matsumoto in the sum of £200,000; and (ii) Hard Yards Global Limited in the sum of £200,000 secured pursuant to their respective Existing Facilities;

 

Shares” means the shares capital of the Company set out against each Seller’s name in the table in Schedule 1 which together comprise the entire issued share capital of the Company;

 

“Simon Blagden” means Simon Blagden of 9 Great Chesterford Court, London Road, Great Chesterford, Essex, CB10 1PF, United Kingdom

 

Subsidiaries” means the subsidiaries of the Company, details of which are set out in Part B of Schedule 2;

 

Surviving Obligations” means any liability, obligation or commitment arising:

 

(a)pursuant to the Contracts set out in Schedule 9; or

 

(b)pursuant to the Transaction Documents,

 

details of which have been Disclosed;

 

Tax” and “Taxation” have the meaning given to those terms in the Tax Schedule;

 

Tax Authority” and “Taxation Authority” have the meaning given to those terms in the Tax Schedule;

 

“Tax Claim” means any Tax Covenant Claim and/or any Tax Warranty Claim;

 

Tax Covenant” means the covenants given by the Sellers in paragraph 2 of the Tax Schedule;

 

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Tax Covenant Claim” means any claim under the Tax Covenant;

 

Tax Schedule” means Schedule 7;

 

Tax Warranties” means the Warranties set out in Part C of Schedule 4;

 

Tax Warranty Claim” means any claim for breach of any of the Tax Warranties;

 

TCGA 1992” means the Taxation of Chargeable Gains Act 1992;

 

Transaction Documents” means this Agreement, the Disclosure Letter and any other documents in the Agreed Form;

 

Transfer Agent” means Worldwide Stock Transfer LLC of One University Plaza, Suite 505, Hackensack, NJ 07601;

 

Transfer Requirements” means complying with the U.S. Securities and Exchange Commission (“SEC”) Rule 144 exemption, which allows public resale of restricted stock by a non-affiliate of the issuer under certain circumstances after retaining the Consideration Shares for a six (6) month holding period (subject to the current public information requirement) and no such current information requirement after one year. The following documentation must be provided to Blink’s Transfer Agent following the holding period to remove the restrictive legend on the Consideration Shares in connection with the resale: (i) a legal opinion letter; (ii) a seller representation letter; (iii) a broker representation letter; and (iv) payment of a standard processing fee;

 

Undertaking” means the undertaking issued by the Buyer’s Solicitors to the Sellers’ Solicitors on or about the date hereof in the Agreed Form;

 

US Escrow Agreement” means the US escrow agreement in the Agreed Form between the Sellers, the Buyer and the US Escrow Agent in respect of the Escrow Shares;

 

US Escrow Agent” means Olshan Law;

 

VATA” has the meaning given to it in the Tax Schedule; and

 

Warranties” means the warranties given pursuant to clause 9 and set out in Schedule 4.

 

1.2In this Agreement unless the context otherwise requires:

 

(a)a reference to a clause, paragraph or Schedule is to a clause or paragraph of, or Schedule to, this Agreement;

 

(b)a reference to the singular includes the plural and vice versa, and a reference to any gender includes every gender;

 

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(c)a reference to a person includes any person, individual, works council, employee representative body, firm, company, government, state or agency of a state, local or municipal authority, government or regulatory body or any undertaking, joint venture, association or partnership (whether or not having separate legal personality and irrespective of the jurisdiction or law under which it was incorporated or exists);

 

(d)a reference to a company includes any company or body corporate irrespective of the jurisdiction or law under which it was incorporated or exists;

 

(e)the expressions “allotment”, “debenture”, “financial year”, “group undertaking” and “undertaking” shall have the same meanings in this Agreement as are attributed to them by the Companies Acts;

 

(f)the expression “holding company” shall mean a holding company (as defined by section 1159 of the Companies Act 2006) or a parent undertaking (as defined by section 1162 of the Companies Act 2006);

 

(g)the expression “subsidiary” shall mean a subsidiary (as defined by section 1159 of the Companies Act 2006) or a subsidiary undertaking (as defined by section 1162 of the Companies Act 2006) and “subsidiaries” shall be construed accordingly. In the case of a limited liability partnership, references to voting rights in section 1159 of the Companies Act 2006 shall mean the members’ rights to vote on all or substantially all matters which are decided by a vote of the members;

 

(h)the expression “full title guarantee” shall have the same meaning in this Agreement as is attributed to it by the Law of Property (Miscellaneous Provisions) Act 1994 save that the word “reasonably” shall be deleted from the covenant set out in section 2(1)(b) of that Act, and the covenant set out in section 3(1) of that Act shall not be qualified by the words “other than any charges, encumbrances or rights which that person does not and could not reasonably be expected to know about”;

 

(i)the expressions “ordinary course of business”, “ordinary and usual course” or “business in the ordinary course” mean the ordinary and usual course of business of the Group (including the operational and commercial policies, practices and procedures) as conducted by the respective Group Company in the 24 months preceding the Completion Date;

 

(j)references to “sterling” or “pounds sterling” or “£” are references to the lawful currency from time to time of England;

 

(k)for the purposes of applying a reference to a monetary sum expressed in sterling an amount in a different currency shall be deemed to be an amount in sterling translated at the Exchange Rate at the relevant date (which in relation to a Claim, Fundamental Warranty Claim, Leakage Claim or Tax Covenant Claim, shall be the date of receipt of notice of that Claim);

 

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(l)a reference to “includes” or “including” means including without limitation;

 

(m)the expression “to the extent” and “to the extent that” shall not be interpreted as simply having the same meaning as “if”;

 

(n)a reference to “writing” or “written” includes any method of representing or reproducing words in a visible and legible form excluding email unless otherwise expressly provided in this Agreement;

 

(o)a reference to a statute or a provision of a statute includes any statutory instrument, regulations or other subordinate legislation made from time to time under that statute or that provision;

 

(p)a reference to a statute, enactment, statutory provision, subordinate legislation, EU directive or regulation, code or guideline includes, in each case:

 

(i)any amendment, consolidation or re-enactment of it in force from time to time; and

 

(ii)any statute, enactment, statutory provision, subordinate legislation, EU directive or regulation, code or guideline which it amends, consolidates or re-enacts,

 

provided that, as between the parties, no such amendment, consolidation or re-enactment made after the Completion Date shall apply for the purposes of this Agreement if and to the extent that it would impose any new or increased liability on any party;

 

(q)a reference to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, body, official, Tax or any legal or accounting concept or thing shall, in respect of any relevant jurisdiction other than that of England, be deemed to include, or be construed as references to, the term or concept which most nearly approximates to it in that jurisdiction; and

 

(r)a reference to a time of day is a reference to London time.

 

1.3A person shall be deemed to be connected with another if that person is connected with such other within the meaning of sections 1122 and 1123 CTA 2010, save that for these purposes, the term “company” (as defined in section 1123 CTA 2010) shall include a limited liability partnership.

 

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1.4All obligations, undertakings and liabilities of the Sellers under or pursuant to this Agreement are, unless otherwise stated, several.

 

1.5The headings in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.

 

1.6The Schedules form part of this Agreement and have the same force and effect as if set out in the body of this Agreement. Any reference to this Agreement includes the Schedules.

 

2Sale and Purchase of Shares

 

2.1On and subject to the terms of this Agreement, each Seller shall sell and the Buyer shall purchase the Shares set out opposite that Seller’s name in column 3 of the table in Schedule 1 with effect from Completion.

 

2.2The Shares shall be sold with full title guarantee and free from all Encumbrances and together with all rights and benefits attaching or accruing to the Shares at Completion (including the right to receive all distributions and dividends declared, paid or made in respect of the Shares after Completion).

 

2.3The Sellers undertake to the Buyer to procure the irrevocable and unconditional waiver of any rights of pre-emption over the Shares (or other rights to restrict the transfer of the Shares) conferred on any person.

 

3Consideration for the Shares

 

3.1The total consideration for the Shares (the “Purchase Price”) is:

 

(a)£9,096,652.35 (the “Cash Consideration”);

 

(b)the Completion Consideration Shares to be issued by Blink to the Sellers on Completion in their Respective Proportions to be issued in accordance with clause 3.3; and

 

(c)the Earn-Out Consideration Amount (if any) which shall be satisfied by way of the issuance of Earn-Out Consideration Shares by Blink to the Sellers in their Respective Proportions in accordance with clause 5 and Schedule 10.

 

3.2Subject to the conditions of this Agreement:

 

(a)an amount equal to £8,556,031.52 (being the Cash Consideration less the aggregate of the Escrow Amount, the Option Withheld Amount and the M Bull and T Mazzone Proceeds) shall be paid by the Buyer to the Sellers on Completion in their Respective Proportions in accordance with clause 30 and the terms of the Undertaking;

 

(b)the Escrow Amount shall be paid on Completion by the Buyer into the Escrow Account in accordance with the terms of the Undertaking; and

 

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(c)the Option Withheld Amount to be paid on Completion by the Buyer to the Company in accordance with the terms of the Undertaking; and

 

(d)the M Bull and T Mazzone Proceeds to be paid on the Completion Date by the Buyer to the Company in accordance with the terms of the Undertaking; and

 

(e)Blink shall instruct the Transfer Agent to issue the Escrow Shares to the US Escrow Agent within five Business Days of Completion and the Escrow Shares shall be withheld from being part of the Completion Consideration Shares in accordance with Schedule 8; and

 

(f)Blink will instruct the Transfer Agent to issue the Completion Consideration Shares (less the Escrow Shares) to the Sellers in their Respective Proportions within five Business Days of Completion.

 

3.3It is expressly acknowledged by the parties that:

 

(a)the number of the Completion Consideration Shares to be issued will be calculated based on the GBP/USD Exchange Rate on the Completion Date; and

 

(b)the number of Completion Consideration Shares to be received by the Sellers will be calculated based on the dollar volume-weighted average price for Blink common stock on The Nasdaq Capital Market during the 30 consecutive trading days up to and including the Completion Date (for each day, beginning at 9:30:01 a.m., Eastern time, and ending at 4:00:00 p.m., Eastern time) as calculated as at the Completion Date.

 

3.4In the event that, as at the Completion Date, the Consideration Shares would equal or exceed 20% of the then outstanding shares of Blink common stock or 20% of the voting power of Blink, then (i) the Consideration Shares shall be reduced to an amount equal to 19.9% of the then outstanding shares of Blink common stock or 19.9% of the voting power of Blink, as applicable, and (ii) the Cash Consideration shall be increased by an amount equal to such reduction of the number of shares of Blink common stock constituting the Consideration Shares, multiplied by Blink’s stock price. For the avoidance of doubt, the aggregate total Purchase Price shall not change as a result of this clause 3.4.

 

3.5Any payments made by any Seller to the Buyer under this Agreement shall be treated to the extent possible as an adjustment to the price paid for the Shares.

 

4CONSIDERATION SHARES

 

4.1Subject to and in accordance with the terms of the Lock-up Agreement, each Seller undertakes to the Buyer and Blink that they shall not, on or before the last day of the month that is 6 months after the Completion Date and/or 6 months following the issue of any Consideration Shares (the “Lock-up Period”) sell, transfer or otherwise dispose or create any Encumbrance over, any of their Consideration Shares (or any interest in them), or enter into any agreement to do so.

 

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5Earn-Out

 

5.1The Earn-Out Consideration Amounts shall be calculated in accordance with the provisions of Schedule 10.

 

5.2Each Draft Earn-Out Statement shall be prepared and agreed (or otherwise determined) in accordance with the provisions of Schedule 10.

 

5.3The Earn-Out Consideration Shares shall be issued in accordance with the provisions of Part B of Schedule 10.

 

5.4The aggregate value of all Earn-Out Consideration Shares to be issued pursuant to this Agreement shall be limited to, and shall not in any circumstances exceed £5,000,000.

 

6Options

 

6.1In this clause 6 the following expressions have the following meanings:

 

Option Exercise Amount” means the amount payable by each Optionholder to exercise their Options, as set out opposite their name in the column entitled “Option Exercise Amount” in the Options Table;

 

Option Tax Amount” means the income tax and employee’s National Insurance contributions (or equivalent charges in any jurisdiction) calculated as arising on exercise of the Options by each Optionholder and as set out opposite their name in the column entitled “Option Tax Amount” of the Options Table;

 

Option Withheld Amount” has the meaning given in clause 6.2;

 

Optionholders” means the persons listed in the Options Table;

 

Options Table” means the table at Schedule 13 setting out details of the Options, including the Option Exercise Amount and Option Tax Amount for each Optionholder;

 

Options” means the options granted by the Company to the Optionholders pursuant to the terms of Share Scheme 1 and the subsequent option agreements entered into between such Optionholders and the Company true and complete copies of which are contained in the Data Room; and

 

Share Scheme 1” means the Company’s EMI option scheme dated 20 June 2019.

 

6.2The Optionholders each authorise, instruct and direct the Buyer to withhold the Option Exercise Amount and the Option Tax Amount (if applicable) from the amount of the Cash Consideration that would otherwise be payable to them on Completion, and to pay such amounts (together the “Option Withheld Amount”) on their behalf to the Company on Completion in satisfaction of each Optionholder’s obligation (if applicable) to pay the Option Exercise Amount and the Option Tax Amount to the Company.

 

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6.3Following Completion, the Buyer shall procure that the Option Withheld Amount is applied by the Company to:

 

(a)satisfy the Option Exercise Amount payable on the exercise of the Options; and

 

(b)account to HMRC for an amount equal to the Option Tax Amount in accordance with its obligations under the UK PAYE system and all applicable laws.

 

7Leakage

 

7.1Subject to Completion having occurred, each Seller severally undertakes to pay to the Buyer within 10 Business Days of written demand from the Buyer, an amount in cash equal to the value or amount of any Leakage received by, or which has benefitted, that Seller or any of their Related Person.

 

7.2Any Leakage falling within:

 

(a)paragraph (j) and (k)(i) (and any corresponding Leakage under paragraph (l)) of the definition of Leakage shall be deemed to have been received by each of the Sellers in their Respective Proportions;

 

(b)paragraph (j)(ii) (and any corresponding Leakage under paragraph (l)) of the definition of Leakage shall be deemed to have been received by each of those Sellers who, or whose Related Persons, received or benefitted from the relevant Leakage referred to in paragraphs (a) to (i) of the definition of Leakage to which it relates (the “Primary Costs Leakage”) in the proportions that the amount or cash equivalent value of such Primary Costs Leakage which that Seller or its Related Persons received or benefitted from bears to the aggregate amount or cash equivalent value of such Primary Costs Leakage; and

 

(c)paragraph (m) of the definition of Leakage shall be deemed to have been received by each of those Sellers who, or whose Related Persons, received or benefitted from the relevant Leakage referred to in paragraphs (a) to (l) of the definition of Leakage to which it relates (the “Primary Tax Leakage”) in the proportions that the amount or cash equivalent value of such Primary Tax Leakage which that Seller or its Related Persons received or benefitted from bears to the aggregate amount or cash equivalent value of such Primary Tax Leakage.

 

7.3Subject to clause 7.5, a Seller shall not be liable for a Leakage Claim unless the Buyer has given that Seller or the Sellers’ Representative written notice of it on or before the date which is 9 months following the Completion Date.

 

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7.4The parties acknowledge and agree that notwithstanding any other provision of this Agreement none of the provisions of clause 10.1 or Schedule 5 shall apply to any Leakage Claim.

 

7.5Nothing in this clause 7 shall apply to limit the liability of any Sellers in respect of any Leakage Claim which arises or is increased as a consequence of, or which is delayed as a result of, fraud, wilful concealment, wilful misconduct or dishonesty by that Seller or any of their Related Persons or any of their respective directors, officers, employees or agents and this clause shall have overriding effect against all other provisions of this Agreement.

 

8Completion

 

8.1Completion shall take place immediately after the execution of this Agreement

 

8.2Completion shall take place at the offices of the Buyer’s Solicitors or as the parties may otherwise agree.

 

8.3At Completion:

 

(a)the Sellers shall deliver or perform (or procure that there is delivered or performed) all those documents, items and actions listed in relation to the Sellers in Part A of Schedule 3; and

 

(b)the Buyer shall deliver or perform (or procure that there is delivered or performed) all those documents, items and actions listed in relation to the Buyer in Part B of Schedule 3.

 

8.4The Buyer shall not be obliged to complete the purchase of any of the Shares unless the purchase of all the Shares is completed simultaneously but completion of the purchase of some Shares shall not affect the rights of the Buyer with respect to its rights to the other Shares.

 

9Warranties

 

9.1Each Seller (in respect of itself and the Shares set opposite that Seller’s name in column 3 of the table in Schedule 1) severally warrants to the Buyer and its successors in the terms of the Fundamental Warranties set out in paragraphs 1, 2.1, 2.3, 2.7, 3 and 4 of Part A of Schedule 4 as at the Completion Date.

 

9.2Each Seller severally warrants to the Buyer and its successors in the terms set out in Schedule 4 (other than the Fundamental Warranties set out in paragraphs 1, 2.1, 2.3, 2.7 and 3 of Part A of Schedule 4) as at the Completion Date.

 

9.3The Warranties (other than the Fundamental Warranties) are qualified if and to the extent of those matters Disclosed.

 

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9.4The Buyer shall not be entitled to bring a Claim in respect of which it had actual knowledge:

 

(a)of the relevant facts, matter or circumstances giving rise to such Claim; and

 

(b)that such facts, matters and circumstances were capable of giving rise to Claim,

 

in each case as at the date of this Agreement.

 

9.5For the purposes of clause 9.4, actual knowledge of the Buyer means the actual knowledge (and not the imputed or constructive knowledge) of Miko de Haan, Michael Rama, Aviv Hillo Esq., or Maria Schagen.

 

9.6Each of the Warranties is separate and independent and (except where expressly provided to the contrary in this Agreement) shall not be restricted or limited by the terms of any other Warranty, the Tax Schedule or by any other term of this Agreement and the Buyer shall have a separate claim and right of action in respect of every breach of each such Warranty.

 

9.7Where any statement in Schedule 4 is qualified as being made “so far as the Sellers are aware” or “to the best of the knowledge, information and belief of the Sellers” or any similar expression that statement shall not be qualified in the manner stated unless the Sellers establish that they have made all reasonable enquiries of the directors of each Group Company, Jennifer Smith, and Matthew Greenwood, to establish the truth and accuracy of that statement.

 

9.8The Sellers undertake to the Buyer and each member of the Group and their respective directors, officers, employees, agents and advisers that the Sellers shall not, and shall procure that none of their connected persons shall, make or pursue any claim or other action against any Group Company or any of their respective directors, officers, employees, agents or advisers arising out of, or in connection with, this Agreement, any other Transaction Document or any information or advice supplied or omitted to be supplied by any such person in connection with the Warranties, this Agreement or any other Transaction Document, save where such a claim arises out of or in connection with the fraud or wilful misconduct of any such person.

 

9.9The Buyer and Blink jointly and severally warrant to the Sellers and their successors in the terms of the warranties set out in Schedule 14 at the Completion Date.

 

10Limitations on liability

 

10.1Except where expressly provided to the contrary in this Agreement, the liability of the Sellers under the Warranties shall be subject to the limitations on liability and other provisions set out in Schedule 5.

 

10.2The parties acknowledge and agree that notwithstanding any other provision of this Agreement:

 

(a)none of the provisions of clause 10.1 or Schedule 5 (other than paragraph 3.1 of Schedule 5) shall apply to any Fundamental Warranty Claim or to any claim for breach of clause 2; and

 

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(b)no disclosure shall be permitted or accepted against any of the Fundamental Warranties.

 

and this clause 10.2 shall have overriding effect against all other provisions of this Agreement. 

 

10.3The provisions of Schedule 5 shall not apply to any claim which arises or is increased as a consequence of, or which is delayed as a result of, fraud, wilful concealment, wilful misconduct or dishonesty by any Seller or any of their connected persons and this clause shall have overriding effect against all other provisions of this Agreement.

 

10.4Save as otherwise expressly provided in Schedule 5, none of the provisions of Schedule 5 shall apply to any claims under this Agreement other than Claims.

 

10.5If any claim is made against the Sellers under this Agreement, the Sellers shall not plead the Limitation Act 1980 against any such claim.

 

10.6If any liability of one or some but not all of the Sellers is, or becomes, illegal, invalid or unenforceable in any respect, that shall not affect or impair the liabilities of the other Sellers under this Agreement.

 

11Indemnities

 

11.1With effect from Completion, the Sellers shall indemnify the Buyer from and against, and undertake to pay to the Buyer on demand a sum equal to, any and all Losses suffered or incurred by the Buyer or any Group Company arising out of or in connection with:

 

(a)any matters arising out of or in connection with any dispute relating to the services agreement made between EB Technologies Ltd and KwikPay Limited dated 1 August 2018 and any claim brought by KwikPay Limited (or any member of its respective group) against any Group Company in respect of such services agreement or any other commercial arrangement between any Group Company and KwikPay Limited or any of its connected persons;

 

(b)any matters arising out of or in connection with the termination of the contract of employment of Daniel O’Hara and the subsequent transfer of shares, including any claims made against the Company by any current or former Employee or Worker employed or engaged by any member of the Group in respect of the conduct of Dan O’Hara;

 

(c)any matters arising out of or in connection with the open trademark dispute between the Company and Arnold & Richter Cine Technik GmbH & Co. Betriebs KG in respect of the UK trade marks numbers 3639409, 3652189 & 3652197; and

 

(d)any matters arising out of or in connection with any Personal Data Breach (as defined in the Data Protection Laws) by any Group Company occurring on or prior to Completion and any breach of the Sellers’ obligations to provide fair processing information as required under Data Protection Laws occurring on or prior to Completion.

 

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11.2The parties acknowledge and agree that notwithstanding any other provision of this Agreement none of the provisions of clause 10.1 or Schedule 5 (other than paragraph 3.1 of Schedule 5) shall apply to any Indemnity Claim.

 

12Tax

 

12.1The provisions set out in the Tax Schedule shall have effect on and from Completion.

 

13Protection of Goodwill

 

13.1Each Seller severally undertakes to the Buyer and each Group Company that without the prior written consent of the Buyer they shall not (and shall procure that none of their connected persons shall) directly or indirectly, in any capacity, either by themselves or in conjunction with any other persons or through their employees or agents or otherwise, and whether on their own behalf or on behalf of any other person or otherwise howsoever:

 

(a)for a period of 24 months after Completion carry on, be engaged, concerned or interested in any capacity (whether for reward or otherwise) in, or provide any technical, commercial or professional advice to, or in any way assist any business which is or is about to be engaged in the development, manufacture, production, distribution or sale of the Restricted Products or any of them or the supply of the Restricted Services or any of them in the Prohibited Area in competition with all or any part of the business of any Group Company as carried on at or during the 24 months prior to Completion;

 

(b)for a period of 24 months after Completion in competition with any Group Company solicit business from or canvass any Customer or Prospective Customer if such solicitation or canvassing is in respect of the Restricted Products or the Restricted Services;

 

(c)for a period of 24 months after Completion in competition with any Group Company, accept orders for Restricted Products or Restricted Services from any Customer or Prospective Customer;

 

(d)for a period of 24 months after Completion solicit or induce or attempt to solicit or induce any person who at Completion was a director, manager, salesman or Senior Employee of any Group Company to cease working for or providing services to any Group Company whether or not any such person would thereby commit any breach of contract provided that this shall not apply in relation to any person who:

 

(i)answers a bona fide public advertisement placed by or on behalf of the Seller or their relevant connected person in relation to a post available to members of the public generally without there having been any previous contact between the Seller or any of their connected persons (or any person acting on behalf of the Seller or any such connected person) and such person; or

 

(ii)is made redundant or whose employment is terminated at any time by any member of the Buyer’s Group;

 

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(e)for a period of 24 months after Completion employ or otherwise engage any person who at Completion was a director, manager, salesman or Senior Employee of any Group Company provided that this shall not apply in relation to any person who:

 

(i)answers a bona fide public advertisement placed by or on behalf of the Seller or their relevant connected person in relation to a post available to members of the public generally without there having been any previous contact between the Seller or any of their connected persons (or any person acting on behalf of the Seller or any such connected person) and such person; or

 

(ii)is made redundant or whose employment is terminated at any time by any member of the Buyer’s Group;

 

(f)for a period of 24 months after Completion solicit or induce or attempt to solicit or induce any Supplier to cease supplying, or to materially reduce its supply of, goods and/or services to any Group Company or in any other way interfere or seek to interfere with the relationship between any Group Company and any Supplier; or

 

(g)assist any other person to do any of the foregoing things.

 

13.2In this clause 13 the following expressions have the following meanings:

 

Acting in Concert” means, in relation to a group of persons who pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition by any of them, either directly or indirectly, of shares or securities in a company.

 

Competitive Business”: means a business whose primary operations are:

 

(a)the development, manufacture, production, distribution or sale of the Restricted Products or any of them; or

 

(b)the supply of the Restricted Services or any of them,

 

in the Prohibited Area in competition with all or any part of the business of any Group Company as carried on at or during the 24 months prior to Completion.

 

Customer” means any person, firm, company or other organisation whatsoever to whom or which any Group Company distributed, sold or supplied its products and/or its services at, or during the 24 months prior to, Completion;

 

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Prohibited Area” means the United Kingdom and Ireland;

 

Prospective Customer” means any person, firm, company or other organisation whatsoever with whom or which any Group Company had negotiations or discussions regarding the possible distribution, sale or supply of its products or services at, or during the 24 months prior to, Completion;

 

Restricted Products” means:

 

(a)all products which are developed, manufactured, produced, distributed, deployed or sold by any Group Company at, or during the 24 months prior to, Completion; and

 

(b)any other products which are of a type similar to and competing with any of the products referred to in (a) above;

 

Restricted Services” means:

 

(a)all services which are supplied by any Group Company at or during the 24 months prior to Completion; and

 

(b)any other services which are competitive with any of the services referred to in (a) above;

 

Senior Employee” means an employee of any Group Company who:

 

(a)was employed in a senior managerial capacity;

 

(b)was a director;

 

(c)has an annual salary of £50,000; or

 

(d)has participated in discussions relating to the transaction which is the subject of this Agreement; and

 

Supplier” means any person, firm, company or other organisation whatsoever who supplied goods or services to any Group Company at, or during the 24 months prior to, Completion.

 

13.3Each Seller agrees with the Buyer that each of the undertakings in this clause 13 is a separate and independent undertaking.

 

13.4Each Seller agrees with the Buyer that each of the undertakings in this clause 13 is reasonable and necessary for the protection of the value of the Shares and any Group Company and that, having regard to that fact, those undertakings do not work harshly on them and that they have had the opportunity to take independent advice on all of them.

 

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13.5While each undertaking in this clause 13 is considered to be reasonable, if any undertaking or undertakings set out in it shall for any reason be found to be void or voidable but would be valid and enforceable if some part or parts of the particular undertaking or undertakings were deleted, modified, restricted or limited in any particular manner (including any reduction in duration or geographical scope) then each Seller and the Buyer agrees that such undertaking or undertakings shall apply with such deletions, modifications, restrictions or limitations as may be necessary to make it valid and enforceable.

 

13.6The undertakings in this clause 13 shall not prevent:

 

(a)any Seller (or any of their connected persons), as a passive investor, from holding in aggregate up to five per cent of the shares of any competing company the shares of which are listed or dealt in on a recognised investment exchange (as defined in section 285 of the Financial Services and Markets Act 2000);

 

(b)any Seller (or any of their connected persons) from engaging in or performing such other activities as the Buyer (acting reasonably) shall have explicitly consented to in writing and the Buyer agres to use its reasonable endevours to respond to any such request for consent with 10 Business Days of receipt of a substantiated written request provided by the relevant Seller to the Buyer (and, for the purposes of this clause 13(b) it shall be reasonable for the Buyer to reject a request for consent if the consent requested is for an investment in a business which could after a fair consideration of all relevant circumstances be considered to be an investment in a Competitive Business);

 

(c)David Palmer from continuing his employment with BP;

 

(d)each of Kieran Gallagher, Sameer Khatri, Fred Wallet and David Harrison from continuing their employment with Vitol;

 

(e)Mark Calnan and Paul Walsh continuing their employment and directorships with Qarma Solutions Limited (company number 09801369);

 

(f)Kevin Stringer or Kevin Stringer Consulting Limited (company number 12386024) from providing consultancy or research services or technical sales support to third parties who provide Restricted Products or Restricted Services, including (without limitation) to Aryium Limited (13908183) or Flowbird Group and/or their subsidiaries;

 

(g)any five of the following named individuals (Samuel Norman, Dave Palmer, Iain Gannon, Andrew Scarlett, Kenya Matsumoto, Sameer Khatri, David Harrison, Fred Wallet and Kieran Gallagher) (the “5 Permitted Investors”) from holding as a passive investment up to 10% shares of the share capital of companies active in the same sector as the Company provided no such company is a Competitive Business and provided that none of the 5 Permitted Investors shall make any such investments whilst Acting in Concert;

 

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(h)any Seller (or any of their connected persons) from maintaining any investment in any company where such investment was completed prior to the date of this Agreement;

 

(i)Leo Bedford or Fondcroft Services Limited (company number 01328900) (together the “Fondcroft Parties”) from performing any act which would otherwise be in breach of clause 13.1 if such act relates to a Prospective Customer which

 

(i)was known to the Fondcroft Parties or had dealings with the Fondcroft Parties before the date of this Agreement, or was introduced to the Fondcroft Parties by a source which is, as far as the Fondcroft Parties are aware (having made all reasonable enquiries), unconnected with any Group Company; and/or

 

(ii)has directly advertised to the Fondcroft Parties its requirement for services that the Fondcroft Parties provides as at the date of this agreement, or its requirement for such services was generally available to the public (other than as a result of any disclosure by the Fondcroft Parties in breach of the Investment and Shareholders’ Agreement or any other obligations of confidentiality to which the Fondcroft Parties are bound); or

 

(j)Leo Bedford continuing his employment and/or directorships with EP Convergence Limited (company number 13881935) and EP Group Corporate Holdings Limited (company number 13667463) and/or their subsidiaries.

 

14Seller Undertakings

 

14.1Each Seller severally undertakes to the Buyer and each Group Company that they shall not and shall procure that none of their connected persons shall at any time after Completion (in the case of any Seller employed or engaged by any Group Company for the time being, except in the proper performance of such Seller’s duties as set out in their terms of employment or engagement with the relevant Group Company,) directly or indirectly, in any capacity, either by themselves or in conjunction with any other persons or through their employees or agents or otherwise, and whether on their own behalf or on behalf of any other person or otherwise howsoever:

 

(a)use or display the name EB Charging (or any name including the words “EB” or “Electric Blue”) or any other trade or business name or distinctive mark or logo or domain name used by or in the business of any Group Company during the 24 months prior to Completion or anything intended or in the reasonable opinion of the Buyer likely to be confused with any of them (together the “Names and Marks”) including the use of the Names and Marks on any building owned by the Seller (or any of their connected persons) or on any stock, products, packaging, stationery, websites, catalogues, price lists, brochures or other promotional material;

 

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(b)in the course of carrying on any trade or business, claim, represent or otherwise indicate any present association with any Group Company or any member of the Buyer’s Group; or

 

(c)do or say anything which is likely to damage the goodwill or reputation of any Group Company or any member of the Buyer’s Group or which may lead any person to cease to do business with any Group Company or any member of the Buyer’s Group on substantially equivalent terms to those previously offered or not to engage in business with any Group Company or any member of the Buyer’s Group.

 

14.2If any of the Sellers or any of their connected persons own after Completion any Intellectual Property Rights which are used in, held for use in or relate to the business of any Group Company, the relevant Sellers shall procure that such Intellectual Property Rights are transferred to the relevant Group Company, the Buyer or a company nominated by the Buyer (at the Buyer’s election) for nominal consideration as soon as practicable after becoming aware of the same after Completion.

 

14.3If any domain name which is used in, held for use in or relates to the business of any Group Company is registered in the name of (or any right to it is otherwise held by) any of the Sellers or any of their connected persons, the relevant Sellers shall procure that such registration (or such right) is assigned or novated to the relevant Group Company, the Buyer or its nominee (at the Buyer’s election) for nominal consideration as soon as practicable after Completion.

 

15Access to Seller Information

 

15.1Each Seller acknowledges that the Buyer may need access, from time to time, after Completion to certain accounting and tax records and information held by the Sellers (or any of their connected persons) or which the Sellers (or any of their connected persons) have a right to obtain if and to the extent such records and information are relevant to any Group Company or their respective businesses and relate to events occurring at or prior to Completion (the “Seller Information”), and agrees that, it shall and shall procure that each of their relevant connected persons shall:

 

(a)properly retain and maintain such Seller Information until the seventh anniversary of the Completion Date or such earlier date as the Buyer or a member of the Buyer’s Group agrees in writing that such retention and maintenance is no longer necessary; and

 

(b)subject to reasonable prior notice allow the Buyer and its officers, employees, agents, auditors and representatives to inspect, review and make copies of such Seller Information as the Buyer may deem necessary or appropriate from time to time, during normal business hours and at the expense of the Buyer.

 

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16Clean Break

 

16.1The Buyer (for itself and as agent on behalf of each Group Company) and each Seller (for themselves and as agent on behalf of each of their connected persons) hereby agree that save:

 

(a)as provided or expressly contemplated in the Transaction Documents (including any rights and benefits conferred on any Group Company under the terms of the Transaction Documents); and

 

(b)for the Contracts details of which are set out in Schedule 9,

 

all Contracts between each Group Company and the Sellers (or any of their connected persons) shall be terminated on and with effect from Completion without any liability under such Contracts or as a result of such termination, notwithstanding any notice periods and or termination obligations which would otherwise need to be complied with under such Contracts.

 

17No Claims Against the Group

 

17.1Save for any Surviving Obligations and other than pursuant to the Service Agreements to be entered into on Completion, if and to the extent that any such liability, obligation or commitment referred to in paragraph 6.4 of Schedule 4 exists, the Sellers irrevocably and unconditionally:

 

(a)agree with the Buyer and each Group Company that the Sellers shall not (and undertake to procure that none of their respective connected persons shall) at any time bring any claim or other action of any kind against any Group Company or any of its directors, officers or employees in relation to any such liability, obligation or commitment;

 

(b)waive (and undertake to procure that each of their connected persons shall waive) any and all rights which they may have or be entitled to exercise or which may arise (now or in the future and whether now known or not) in relation to any such liability, obligation or commitment; and

 

(c)release (and undertake to procure that each of their connected persons shall release) each Group Company from any and all liabilities, obligations and commitments which may be owing by any Group Company to any of them,

 

and the Sellers shall indemnify the Buyer from and against, and undertake to pay to the Buyer on demand a sum equal to, any and all Losses suffered or incurred by the Buyer or any Group Company arising as a result of or in connection with any failure of the Sellers to comply with their obligations under this clause 17.1.

 

17.2This clause 17 shall not exclude any liability, obligation or commitment arising directly out of any fraud or dishonesty on the part of any Group Company.

 

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18Announcements

 

18.1Subject to clauses 18.2 and 19.4, and save for the Buyer’s Announcement and the Seller’s Announcement, no announcement, circular or communication relating to this Agreement or any other Transaction Document or the arrangements contemplated by the Transaction Documents shall be made or issued by or on behalf of any party or by any of their respective Permitted Representatives on or after Completion without the prior written approval of the Buyer, such approval not to be unreasonably withheld or delayed provided that:

 

(a)this clause 18.1 shall not apply to announcements or communications made or sent by any of the Buyer’s Permitted Representatives to customers, clients or suppliers of any member of the Buyer’s Group after Completion if and to the extent that they inform them of the sale and purchase of the Shares; and

 

(b)any of the Buyer’s Permitted Representatives shall be entitled to refer to the Proposed Transaction (excluding the terms and conditions of the Proposed Transaction that are not otherwise publicly available) and/or the existence of this Agreement or any other Transaction Document in any marketing material relating to any financing of any member of the Buyer’s Group (including whether by way of public securities issue or otherwise) and, in each case, any replacement or refinancing thereof from time to time.

 

18.2The restriction in clause 18.1 shall not apply if and to the extent that the announcement, circular or communication is required by law, any governmental or regulatory body or by the rules of any stock exchange.

 

18.3If the exception in clause 18.2 applies, the party making the announcement, issuing the circular or other communication shall, if and to the extent permitted by law or regulation, use its reasonable endeavours to consult with the other party in advance as to its form, content and timing and reflect any reasonable comments provided.

 

19Confidentiality

 

19.1Subject to clause 19.4, each party shall (and shall procure that their respective Permitted Representatives shall) treat as confidential and not disclose or use any information received or obtained as a result of negotiating, entering into or performing this Agreement or any of the other Transaction Documents which relates to:

 

(a)the provisions or subject matter of, or negotiations leading to, this Agreement or any of the other Transaction Documents; or

 

(b)(in relation to the obligations of the Buyer or any of its Permitted Representatives) any Seller; or

 

(c)(in relation to the obligations of any Seller or any of their respective Permitted Representatives) the Buyer or any other member of the Buyer’s Group,

 

and shall use all reasonable endeavours to prevent the unauthorised use or disclosure of any such information.

 

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19.2Subject to clause 19.4, each Seller shall (and shall procure that their respective Permitted Representatives shall) treat as confidential and not disclose or use any Confidential Information and shall use all reasonable endeavours to prevent the unauthorised use or disclosure of any Confidential Information.

 

19.3Each Seller hereby acknowledges that Blink is a publicly-traded U.S. company, subject to laws and regulations under the Securities and Exchange Act of 1934 (as amended) (the “Act”), which prohibits inter alia insider trading on the basis of material nonpublic information and disclosure of material nonpublic information. The Sellers may have received or exposed to certain Confidential Information or other information that constitutes material nonpublic information under § 240.10b5-1 of the Act with respect to Blink or the Consideration Shares. In addition, the Sellers hereby acknowledge and agree that this Agreement and/or the Proposed Transaction are confidential and constitute material nonpublic information.

 

19.4Any party or any of their respective Permitted Representatives may disclose or use information which would otherwise be confidential if and to the extent:

 

(a)they are required to do so by law, any regulatory or governmental body (including any Taxation Authority) to which it is subject wherever situated or any stock exchange on which the shares of any party (or, where applicable, any member of their group) are listed or admitted to trading (provided that, other than in connection with a disclosure to a Taxation Authority, the disclosing party shall (if reasonably practicable) first inform the other party of its intention to disclose such information and take into account the reasonable comments of the other party);

 

(b)the disclosure is made:

 

(i)in the case of the Buyer (or any of its Permitted Representatives) to any of the Buyer’s Permitted Representatives;

 

(ii)in the case of a Seller (or any of their Permitted Representatives) to any of that Seller’s Permitted Representatives,

 

and is reasonably required for purposes connected with this Agreement or any of the other Transaction Documents and the relevant Permitted Representatives are made aware of the confidential nature of the relevant information;

 

(c)the disclosure is to a Taxation Authority either in connection with the Tax affairs of the person making the disclosure or for the purposes of submitting any instrument executed pursuant to this Agreement for stamping;

 

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  (d) the information has come into the public domain through no fault of that party (or any of their Permitted Representatives);

 

(e)the disclosure or use is reasonably required for the purposes of any judicial or arbitral proceedings arising out of this Agreement or any other Transaction Document; or

 

(f)the disclosure is made by or on behalf of the Buyer or any of its Permitted Representatives to any proposed purchaser of, investor in and/or current or potential provider of debt finance to (including any agent, trustee or professional adviser acting on behalf of such debt finance provider) the Buyer’s Group or any part of it together with the professional advisers and representatives of any of the foregoing, if and to the extent that such disclosure is reasonably required in order to facilitate the proposed purchase, investment and/or provision of debt finance and provided that such information is disclosed on a confidential basis.

 

19.5Notwithstanding any other provision of this clause 19 the Buyer shall not be restricted, following Completion, in its use of any information which relates solely to the Group or its business or, in respect of information which relates to both the Group and any of the Sellers (or any of their connected persons), in its use of such information if and to the extent it relates to the Group or its business and not to the relevant Sellers (or any of their connected persons) or their businesses.
  
20Further Assurance
  
20.1At any time on or after Completion, each Seller shall and, so far as they are able, shall procure that any relevant third party shall execute all such documents prepared by the Buyer and take such steps and provide all such assistance as the Buyer shall reasonably require to vest the full title to the Shares in the Buyer (or its nominee) and to give the Buyer (or its nominee) the full benefit of all the provisions of the Transaction Documents.
  
20.2Each Seller declares that for so long as they remain the registered holder of any of the Shares after Completion they shall:

 

(a)hold the Shares registered in their name and all dividends and other distributions declared, made or paid in respect of them and all rights arising out of or in connection with them on trust for the Buyer and its successors in title; and
   
(b)deal with such Shares and all such dividends, distributions and voting and other rights relating to such Shares as the Buyer may direct.

 

20.3By way of security to secure the performance of each Seller’s obligations under clause 20.2, each Seller irrevocably appoints the Buyer as their attorney to execute any and all documents, instruments and proxies which the Buyer may in its absolute and unfettered discretion require to enable the Buyer to exercise all voting and other rights attaching to the Shares and to attend and vote at all general meetings of the Company from Completion to the day on which the Buyer or its nominee is entered in the register of members of the Company and/or any Group Company as the holder of the Shares.

 

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20.4As soon as reasonably practicable following Completion, the Buyer and the Management Sellers shall (subject to professional tax advice) work together in good faith to put in place agreed incentive arrangements for those employees of the Group identified by the Buyer and the Management Sellers.
  
21Guarantees
  
21.1If following Completion:

 

(a)the Buyer becomes aware of any Guarantee given by, or binding on, any Group Company in respect of any debt, liability (whether actual or contingent) or other obligation of the Sellers (or any of their connected persons) or any person other than a Group Company; and
   
(b)the Buyer gives written notice to the Sellers containing reasonable details of such Guarantee,

 

the relevant Sellers shall use all reasonable endeavours to procure the absolute and unconditional release of each Group Company (without cost to any Group Company) from such Guarantee. Following Completion and pending the release of all Guarantees referred to in this clause 21 the relevant Sellers shall indemnify the Buyer from and against, and undertake to pay to the Buyer on demand a sum equal to, any and all Losses suffered or incurred by the Buyer or any Group Company arising out of or in connection with any such Guarantee.

 

22Assignment and Successors
  
22.1Except as set out in this clause 22, no party may assign, transfer, grant any security interest over, hold on trust or otherwise dispose or deal in any way with all or any of its rights or obligations arising under this Agreement.
  
22.2The Buyer may, without the consent of the Sellers, assign all or any part of the benefit of this Agreement to any member of the Buyer’s Group (and may be assigned by any such member to or in favour of any other member of the Buyer’s Group) provided that if such assignee ceases to be a member of the Buyer’s Group all benefits relating to this Agreement assigned to such assignee shall be deemed automatically by that fact to be re-assigned to the Buyer immediately before such cessation.
  
22.3The Buyer may, without the consent of the Sellers, assign and/or charge the benefit of this Agreement to any bank(s) and/or financial institution(s) lending money or making other financing facilities available to the Buyer (or any member of the Buyer’s Group) or acting as agent or trustee on behalf of such banks and/or institutions for the acquisition of the Shares (or, in each case, in connection with any replacement or refinancing thereof from time to time) but so that notwithstanding any such assignment by way of security, the Sellers may, unless and until they receive written notice of enforcement of the relevant security interest, deal with the Buyer (or the relevant other member of the Buyer’s Group) in connection with all matters arising under this Agreement.

 

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22.4If an assignment is made in accordance with this clause 22, the liabilities of the Sellers and the Buyer under this Agreement shall be no greater than such liabilities would have been if the assignment had not occurred.
  
22.5This Agreement shall be binding on the personal representatives, successors and/or permitted assigns of the parties.
  
23Waiver
 
23.1No single or partial exercise, nor the temporary or partial waiver, of any right, power or remedy by any party nor the failure or delay by any party to exercise or enforce, in whole or in part, any right, power or remedy relating to this Agreement or any other Transaction Document, shall (except if and to the extent covered by any such temporary or partial waiver) constitute a waiver by that party of, or impair or preclude any other or further exercise or enforcement by that party of, that or any other right, power or remedy.
  
23.2The Buyer may, in its discretion, in whole or in part release any liability or waive any of its rights with regard to any one or more of the Sellers without in any way prejudicing or affecting the liability of or its rights against any other of the Sellers in respect of the same or a like liability.
  
23.3The giving by any party of any consent shall not prejudice the rights of that party to withhold or give consent to the doing of any similar act.
  
23.4No waiver by any party of any remedy or right provided in this Agreement or by law shall have effect unless given by written notice signed by a duly authorised officer of the Buyer or by the relevant Sellers. Any such waiver may be given subject to any conditions thought fit by that party.
  
24Notices
  
24.1Any notice or other communication to be made or given to a party under this Agreement (a “Notice”) shall be:

 

(a)in writing in the English language;

 

(b)sent by one of the following permitted methods:

 

(i)hand delivery;

 

(ii)first class or special (or other recorded) delivery pre-paid post; or

 

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(iii)international signed-for air-mail;

 

(c)sent to the relevant postal address as set out in clause 24.3; and

 

(d)deemed to be delivered or served as set out in clause 24.4.

 

24.2Any Notice to be made or given under this Agreement to or by all or any of the Sellers shall be properly made or given if it is sent to or made or given by either the relevant Sellers or the Sellers’ Representative.

 

24.3The postal addresses of each of the parties for the purposes of delivery or service of a Notice are:

 

(a)in the case of the Buyer, as set out below:

 

Postal address   Marked for the attention of:
Mr. Treublaan 7, 1097DP Amsterdam, Netherlands   Miko de Haan, Managing Director

 

(b)in the case of a Seller (whether in their capacity as a Seller or Sellers’ Representative) the postal address for the relevant Seller as set out opposite that person’s name in column 2 of the table in Schedule 1,

 

or, subject to clause 25.3 in relation to the Sellers’ Representative, such other address in the United Kingdom a party may notify to the other parties from time to time, provided that notice of any change shall only be effective on the date falling five Business Days after it is delivered or served in accordance with this clause 24 or such later date, if any, specified in the notice of change.

 

24.4A Notice (provided it is properly addressed) shall be deemed to be delivered or served as follows:

 

Permitted method   Date of deemed delivery or service
Hand delivery   At the time of delivery or service
First class or special (or other recorded) delivery pre-paid post   10 a.m. on the second Business Day after posting
International signed-for air-mail   10 a.m. on the fifth Business Day after posting

 

provided that in relation to delivery or service by hand, in any case where delivery or service would be deemed to have taken place after 5.00 p.m. on a Business Day and before 10.00 a.m. on the next Business Day, such Notice shall be deemed to have been delivered or served at 10.00 a.m. on the latter of such Business Days.

 

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24.5References in this clause 24 to times of the day are to those times in the location of receipt.
  
25Sellers’ Representative
  
25.1Each of the Sellers hereby irrevocably appoints and authorises the Sellers’ Representative to act as their agent and representative pursuant to the Transaction Documents at all times with full power and authority in their name and on their behalf or otherwise to bind each and any of the Sellers and the Buyer and any other person may rely, without inquiry, upon any action of the Sellers’ Representative as being the act of each and any of the Sellers in all matters referred to in the Transaction Documents. Each of the Sellers hereby ratifies and confirms all that the Sellers’ Representative shall do or cause to be done by virtue of that appointment as Sellers’ Representative.
  
25.2Without prejudice to the generality of clause 25.1,

 

(a)whether or not such terms refer to the Sellers’ Representative, wherever under the terms of the Transaction Documents all or any of the Sellers are entitled or obliged to exercise or enforce any right or discretion, take any action (including incurring any cost or approving, signing or executing and/or delivering any deed, agreement or other document), give or receive any direction, consent, waiver or notice and/or agree any matter (save if and to the extent expressly provided to the contrary in the relevant Transaction Document) such right or discretion may be validly exercised or enforced, such action may be validly taken, such direction, consent or notice may be validly given or received, and/or such matter may be validly agreed by or to the Sellers’ Representative for and on behalf of all or any of the Sellers; and
   
(b)each of the Sellers irrevocably authorises and appoints the Sellers’ Representative as their agent to accept service on their behalf of any process in any legal action or proceedings relating to or arising out of or in connection with any of the Transaction Documents, their subject matter or formation and such service shall be deemed complete in relation to each or any of the Sellers whether or not forwarded to or received by each or any of the Sellers.

 

25.3In the event of the death or incapacity of the Sellers’ Representative the Sellers agree to appoint, by simple majority, a successor within the 15 Business Day period immediately following such death or incapacity (provided that such successor Sellers’ Representative is a Seller and their address for the purposes of clause 24 is in the United Kingdom) and, if they fail to do so, the Buyer may by notice in writing appoint any one of the Sellers as the Sellers’ Representative. The Sellers’ Representative may also be replaced by a simple majority vote of the Sellers from time to time provided that such successor Sellers’ Representative is a Seller and their address for the purposes of clause 24 is in the United Kingdom. The appointment of such successor or replacement shall take effect:

 

(a)where appointed by the Sellers, once the proposed appointee has agreed in writing to accept the appointment and such appointment has been notified to the Buyer in writing in accordance with clause 24; and
   
(b)where appointed by the Buyer, upon such notice from the Buyer.

 

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25.4Except as provided in clause 25.3 the Sellers may not replace the Sellers’ Representative or appoint an additional representative.
  
26Conflict with other Agreements
  
26.1If there is any conflict between the terms of this Agreement and any other agreement, this Agreement shall prevail (as between the parties to this Agreement and as between the relevant Sellers or their connected persons and any members of the Buyer’s Group) unless:

 

(a)such other agreement expressly states that it overrides this Agreement in the relevant respect; and
   
(b)the relevant Sellers and the Buyer are either also parties to that other agreement or otherwise expressly agree in writing that such other agreement shall override this Agreement in that respect.

 

27Entire Agreement
  
27.1Subject always to clause 27.2, each party acknowledges and agrees with the others that:

 

(a)the Transaction Documents constitute the entire agreement and understanding between the parties in connection with the arrangements contemplated by this Agreement and supersede and extinguish any Pre-Contractual Statement not expressly set out in the Transaction Documents;
   
(b)they are entering into the Transaction Documents in reliance upon only the Transaction Documents and that they are not relying upon any Pre-Contractual Statement unless it is expressly set out in the Transaction Documents; and
   
(c)they shall not have any rights or remedies in relation to any Pre-Contractual Statement unless it is expressly set out in the Transaction Documents.

 

27.2This clause shall not exclude any liability in respect of any Pre-Contractual Statements made or given fraudulently or dishonestly by any party.

 

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27.3In this clause “Pre-Contractual Statement” means any promise, warranty, representation, covenant, undertaking, agreement, term or condition or statement of whatever nature relating to the arrangements contemplated by this Agreement or any of the other Transaction Documents made or given by any party or on their behalf at any time prior to the execution of this Agreement.
  
27.4Each party acknowledges that they have received independent legal advice as to the terms of this Agreement, including the provisions and effect of this clause, and agrees that the provisions of this clause are fair and reasonable.
  
28Contracts (Rights of Third Parties) Act 1999
  
28.1Without prejudice to any express provision of this Agreement pursuant to which any rights are conferred upon or rights or liability may be assigned or transferred to any third party, for the purpose of the Contracts (Rights of Third Parties) Act 1999 the parties do not intend that any term of this Agreement should be enforceable by any person who is not a party to this Agreement except if and to the extent set out in this clause 28.
  
28.2The third parties referred to in this Agreement shall have the right to enforce only those clauses which refer to them in accordance with the terms of the Contracts (Rights of Third Parties) Act 1999 provided that such rights:

 

(a)shall not be assignable by any of those persons; and

 

(b)are subject to the terms and conditions of this Agreement.

 

28.3The parties may amend, vary or terminate this Agreement in such a way as may affect any rights or benefits given to any third party under this Agreement which are directly enforceable against the parties under the Contracts (Rights of Third Parties) Act 1999 without the consent of such third parties who may not veto any such amendment, variation or termination.
  
29Costs
  
29.1Except where this Agreement or any other Transaction Document expressly provides otherwise, each party shall be responsible for its own legal, accountancy and other costs and expenses incurred in relation to the Proposed Transaction and the negotiation, preparation and implementation of this Agreement and the other Transaction Documents.
  
30Payments And Interest
  
30.1Unless otherwise stated in any other provision of this Agreement any payment of any amount to be made pursuant to this Agreement by the Buyer to any of the Sellers shall be made to the Sellers’ Nominated Account.
  
30.2The Sellers’ Solicitors are hereby authorised by the Sellers to receive payment of any amount referred to in clause 30.1.

 

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30.3Payment of any amount referred to in clause 30.1 to the Sellers’ Nominated Account including for the avoidance of doubt:

 

(a)the Cash Consideration;
   
(b)the repayment of the Shareholder Loans; and
   
(c)the repayment of the Calnan Family Loans,

 

shall constitute a good and complete discharge to the Buyer in respect of its obligation to pay such amounts and the Buyer shall not be concerned with the distribution of the monies so paid or be answerable for the loss or misapplication of such sum.

 

30.4Any payment made to the Sellers’ Nominated Account in respect of an amount payable to any of the Sellers (or any of their connected persons) shall be received by the recipient in the Sellers’ Nominated Account as nominee for and on behalf of each relevant Seller (or such connected persons) and the recipient shall account for the same to each such Seller (or such connected persons) (or as such Seller may direct) and until it does so shall hold such amount on trust for such persons.
  
30.5If any party defaults in the payment when due of any sum payable under this Agreement (whether payable under its terms or by agreement or by a court order or otherwise) the liability of that party shall be increased to include interest on such sum from and including the date when such payment was due up to and including the date of actual payment (as well after as before judgment) at the annual rate which is the aggregate of 3% per annum and the base rate from time to time of Barclays Bank plc. Such interest shall accrue from day-to-day and shall be compounded annually.
  
30.6For the avoidance of doubt Buyer’s obligation is to issue such number of Consideration Shares as calculated in accordance with clause 3.3 and Schedule 10 to the Seller’s in their Respective Proportions. To the extent that the Respective Proportions are incorrect, the Buyer shall not be concerned with or answerable for any such innacuracy.
  
31Set-Off
  
31.1Without prejudice to clause 31.2, but otherwise notwithstanding any other provision of any of the Transaction Documents, if at (or prior to) the time that any Buyer Payment is due and payable, a Relevant Claim has become a Qualifying Claim and a Seller Payment (or ay part of it) is outstanding, the Buyer shall be entitled (at its sole discretion) to satisfy all (to the extent possible) or part of any relevant Sellers’ liability to pay the Seller Payment by way of set-off against the Buyer Payment then payable to them, and to treat its obligation to make such Buyer Payment as being reduced (or extinguished) by an amount equal to the value of the Seller Payment so setoff and the Buyer shall have no liability to satisfy such amount of the Buyer Payment as is equal to the value of the Seller Payment so set off.

 

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31.2Without prejudice to clauses 31.1, but otherwise notwithstanding any other provision of any of the Transaction Documents, if at (or prior to) the time that any Buyer Payment is due and payable there is an Outstanding Claim, the Buyer shall be entitled (at its sole discretion) to:

 

(a)withhold from the Buyer Payment then due and payable to any relevant Sellers an amount equal to the amount of the Outstanding Claim (the “Liability Amount”) provided that the Buyer has obtained, at the Buyer’s cost, an opinion from Counsel that on the balance of probabilities, the Buyer has a chance of success in respect of the Outstanding Claim and has provided a copy of that opinion to the relevant Sellers or the Sellers’ Representative, or, if lower, (without prejudice to clause 31.3) the full amount of such Buyer Payment (the “Reserved Sum”); and
   
(b)defer payment of the Reserved Sum until such time as the Outstanding Claim has become a Seller Determined Claim.

 

31.3If the Reserved Sum withheld by the Buyer from a Buyer Payment pursuant to clause 31.2 is less than the Liability Amount in respect of the relevant Outstanding Claim then each time a subsequent Buyer Payment is due and payable to any relevant Sellers (and if and to the extent that the relevant Outstanding Claim has not became a Qualifying Claim or a Seller Determined Claim on or before such time), the Buyer shall be entitled (at its sole discretion) to make a withholding from each such Buyer Payment until such time as the aggregate amount withheld in respect of the relevant Outstanding Claim is equal to the Liability Amount.
  
31.4Where a Reserved Sum has been withheld by the Buyer pursuant to clause 31.2 in respect of an Outstanding Claim, then if and to the extent that it becomes a Seller Determined Claim the Buyer shall no longer be entitled to withhold payment of such amount of the Buyer Payment and, save if and to the extent that the Buyer is entitled to set off or withhold the same in respect of any other Qualifying Claim or Outstanding Claim in accordance with clauses 31.1, 31.2 or 31.3, shall pay the Reserved Sum to the Sellers’ Nominated Account within 10 Business Days of the Outstanding Claim becoming a Seller Determined Claim.
  
31.5Where a Reserved Sum has been withheld by the Buyer pursuant to clause 31.2 in respect of an Outstanding Claim, then if and to the extent that it becomes a Qualifying Claim the Buyer shall:

 

(a)be entitled (at its sole discretion) to satisfy all (if and to the extent possible) or part of any relevant Sellers’ liability to pay the Due Amount (or such part of it) in respect of the Qualifying Claim by way of set-off against the corresponding Reserved Sum, and to treat its obligation to pay the Reserved Sum as being reduced by an amount equal to the value of the Due Amount so set off and the Buyer shall have no liability to satisfy such amount of the relevant Buyer Payment as is equal to the value of the Due Amount so set off; and

 

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(b)after the Buyer has exercised its rights pursuant to clause 31.5(a), and save to the extent that the Buyer is entitled to set-off or withhold payment of such amount (or any part of such amount) in respect of any other Qualifying Claim or Outstanding Claim in accordance with clauses 31.1, 31.2 or 31.3, the Buyer shall pay the balance of the relevant Reserved Sum (if any) to the Sellers’ Nominated Account within 10 Business Days of the Outstanding Claim becoming a Qualifying Claim.

 

31.6Nothing in this clause 31 shall require the Buyer to exercise its rights of set off or withholding or prejudice, limit or otherwise affect:

 

(a)any right or remedy the Buyer may have against the Sellers from time to time arising under any of the Transaction Documents; or
   
(b)the Buyer’s right to recover against the Sellers, whether before or after the Buyer Payment is made in accordance with this Agreement.

 

31.7No set off or withholding made under this clause 31 shall extinguish the liability of any of the Sellers or otherwise prevent or restrict the Buyer’s right to recover in respect of any Relevant Claim if and to the extent that such liability exceeds the amount of the Buyer Payment so set off or withheld.
  
31.8Any amount set off or withheld pursuant to this clause 31 and which would otherwise have been payable to any of the Sellers shall be deemed to have been received by the relevant Sellers for the purposes of paragraph 1.3 of Schedule 5 and shall not operate to impose any reduction in the Purchase Price or otherwise affect the liability of any of the Sellers in respect of any Claims or Tax Covenant Claims.
  
31.9For the purposes of this clause 31 (including for such purposes any defined terms and expressions used in this clause 31), references to:

 

(a)the Sellers shall be deemed to be references to the Sellers or such of their connected persons as the context may require; and
   
(b)the Buyer shall be deemed to be references to the Buyer or such other members of the Buyer’s Group as the context may require,

 

and the Sellers and the Buyer shall procure that such connected persons or the Buyer’s Group respectively shall comply with and give effect to this clause 31 as if they were party to this Agreement.

 

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32Claims against Professional Advisers
  
32.1Save in respect of fraud on the part of the Buyer’s professional advisers, each of the Sellers irrevocably and unconditionally agree with the Buyer and its professional advisers that they will not bring any claim or other action whatsoever in relation to any matter arising out of or in connection with this Agreement whether such exists now (and whether or not it is known to any of the Sellers as at the Completion Date) or in the future (a “Professional Claim”), against any professional advisers of the Buyer. If any such Professional Claim exists, each of the Sellers irrevocably and unconditionally waive the right to bring any form of claim against or recover any sums from any of the Buyer’s professional advisers in relation to any Professional Claim and unconditionally and irrevocably release the Buyer’s professional advisers from any liability in respect of any such Professional Claim. For the purposes of the Contracts (Rights of Third Parties) Act 1999 the parties intend that the terms of this clause 32 should be enforceable by any relevant professional adviser of the Buyer.
  
33Execution and Counterparts

 

33.1This Agreement shall be valid, binding and enforceable against a party only when executed by an authorised individual on behalf of the party by means of:

 

(a)a DocuSign® or other electronic signature;

 

(b)an original, manual signature; or

 

(c)a faxed, scanned or photocopied manual signature, and

 

each DocuSign® or other electronic, faxed, scanned or photocopied manual signature shall for all purposes have the same validity, legal effect and admissibility in evidence as an original manual signature and the parties hereby waive any objection to the contrary.

 

This Agreement may be entered into in the form of any number of counterparts, each executed by one or more of the parties, all of which taken together shall constitute one and the same instrument.

 

34Variations
  
34.1No purported variation of this Agreement shall be effective unless it is in writing and is duly executed by the Buyer and the Sellers’ Representative.
  
35Invalidity
  
35.1Each provision or part-provision of this Agreement is severable and distinct from the others. If any such provision or part-provision is or becomes invalid, illegal or unenforceable, that provision or part-provision shall be deemed modified if and to the extent necessary to make it valid, legal and enforceable. If such modification is not possible then that provision or part-provision shall be deemed not to form part of this Agreement. Any such modification to or deletion of that provision or part-provision shall not affect or impair the validity, legality or enforceability of the remainder of this Agreement.

 

41

 

 

36Continuing Obligations
  
36.1All provisions of this Agreement which are capable of performance after Completion, which are capable of having or taking effect following Completion and all warranties, covenants, indemnities, agreements and other undertakings contained in this Agreement shall remain in full force and effect notwithstanding Completion.
  
37Remedies
  
37.1Except as expressly provided in this Agreement, the rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
  
38Governing Law and Jurisdiction
  
38.1This Agreement and any and all matters (including any contractual or non-contractual rights and obligations) arising out of or in connection with this Agreement, its subject matter or formation shall be governed by and construed in accordance with English law.
  
38.2Each of the parties irrevocably:

 

(a)agrees that the English courts will have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement (including any non-contractual rights and obligations) and the documents to be entered into pursuant to it and, accordingly, that proceedings arising out of or in connection with this Agreement or any such documents will be brought in such courts; and
   
(b)submits to the jurisdiction of such courts and waives any objection to proceedings being brought in any such court on the ground of venue or on the ground that the proceedings have been brought in an inconvenient forum.

 

38.3Each of the parties irrevocably agrees that any process in any legal action or proceedings relating to or arising out of or in connection with this Agreement, its subject matter or formation may (if consistent with the applicable court rules) be served on them in accordance with clause 24.

 

IN WITNESS whereof this Agreement has been entered into as a deed on the date set out on page 1.

 

42

 

 

Schedule 1

 

The Sellers

 

   

(1)

Name

 

(2)

Address

 

(3)

Shares

 

(4)

Respective Proportions

(%)

  

(5)

Cash Consideration

(£)

  

(6)

Completion Consideration Shares

 
    Alexander James Calnan    31,465 ordinary shares of £0.01 each
 
7,500 deferred shares of £0.01 each
   20.309%   1,847,407.06    507,716.19 
    Mark David Calnan    11,016 ordinary shares of £0.01 each   7.110%   646,783.29    177,753.11 
    Paul Vincent Walsh                            10,459 ordinary shares of £0.01 each   6.751%   614,080.10    168,765.41 
    Leo Bedford    3,274 ordinary shares of £0.01 each   2.113%   192,226.62    52,828.95 

 

43

 

 

    Karen and Tim Taylor    2,425 ordinary shares of £0.01 each   1.565%   142,379.22    39,129.56 
    Peter David Calnan    7,488 ordinary shares of £0.01 each   4.833%   439,643.54    120,825.64 
    David Patrick Houten    10,247 ordinary shares of £0.01 each   6.614%   601,632.93    165,344.60 
    Diane Houten    3,374 ordinary shares of £0.01 each   2.178%   198,097.93    54,442.54 
    Andrew George Scarlett    12,945 ordinary shares of £0.01 each   8.355%   760,040.82    208,879.26 
    Lindsay Jane Scarlett    764 ordinary shares of £0.01 each   0.493%   44,856.79    12,327.83 
    Iain Gannon    11,817 ordinary shares of £0.01 each   7.627%   693,812.47    190,677.97 
    Kevin Stringer and Joss Soulie-Mansanne    2,714 ordinary shares of £0.01 each   1.752%   159,347.30    43,792.84 

 

44

 

 

    Damien McGlue    290 ordinary shares of £0.01 each   0.187%   17,026.79    4,679.41 
    Kenya Matsumoto    13,982 ordinary shares of £0.01 each   9.024%   820,926.29    225,612.20 
    Kieran Gallagher    7,917 ordinary shares of £0.01 each   5.110%   464,831.46    127,747.94 
    Sameer Khatri    8,585 ordinary shares of £0.01 each   5.541%   504,051.79    138,526.73 
    David Harrison    4,481 ordinary shares of £0.01 each   2.892%   263,093.31    72,304.98 
    Fred Wallet    2,826 ordinary shares of £0.01 each   1.824%   165,923.16    45,600.06 
    Samuel Norman    3,504 ordinary shares of £0.01 each   2.262%   205,730.63    56,540.20 
    David Palmer    2,910 ordinary shares of £0.01 each   1.878%   170,855.06    46,955.48 

 

45

 

 

  David Gee    240 ordinary shares of £0.01 each   0.155%   14,091.14    3,872.62 
   Matthew Bull    195 ordinary shares of £0.01 each   0.126%   11,449.05    3,146.50 
   Tony Mazzone    390 ordinary shares of £0.01 each   0.252%   22,898.10    6,293.00 
   Trevor Watt    240 ordinary shares of £0.01 each   0.155%   14,091.14    3,872.62 
   Jennifer Smith    39 ordinary shares of £0.01 each   0.025%   2,289.81    629.30 
   Hard Yards Global Limited    1,347 ordinary shares of £0.01 each   0.869%   79,086.52    21,735.06 
Total        154,934 ordinary shares of £0.01 each
 
7,500 deferred shares of £0.01 each
   100%   9,096,652.32    2,500,000.00 

 

46

 

 

Schedule 2

 

The Company and Subsidiaries

 

Part A

 

The Company

 

Name:   ELECTRIC BLUE LIMITED
Date and place of incorporation:  

17 February 2015

England and Wales

     
Registered number:  

09444791

     
Registered office:  

Beech House (unit 1) Beech Industrial Centre

Porters Wood

St. Albans

Hertfordshire

AL3 6PQ

     
Issued share capital:  

154,934 ordinary shares of £0.01 each

     
Shareholders and number of shares held:  

As set out in Schedule 1.

     
Directors:  

Simon Blagden

Alexander Calnan

David Houten

Imran Khatri

Paul Walsh

     
Secretary:  

None

     
Auditors:  

None

     
Outstanding Charges:  

Companies House charge code: 094447910002

Date created: 25 January 2022

Persons entitled: Hard Yards Global Limited

Companies House charge code: 094447910001

Date created: 25 January 2022

Persons entitled: Kenya Matsumoto

 

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Part B

 

The Subsidiaries

 

Name:   EB CHARGING LTD
Date and place of incorporation:  

17 February 2015

England and Wales

     
Registered number:   09444771
     
Registered office:  

Beech House (unit 1) Beech Industrial Centre

Porters Wood

St. Albans

Hertfordshire

AL3 6PQ

     
Issued share capital:   100 ordinary shares of £1.00 each
     
Shareholders and number of shares held:   The Company: 100 ordinary shares of £1.00 each
     
Directors:  

Alexander Calnan

Jennifer Smith

     
Secretary:   None
     
Auditors:   None
     
Outstanding Charges:  

Companies House charge code: 094447710001

Date created: 26 May 2021

Persons entitled: General Subsidiary 2 Limited

 

48

 

 

Name:   EB TECHNOLOGIES LTD
Date and place of incorporation:  

17 February 2015

England and Wales

     
Registered number:   09444868
     
Registered office:  

Beech House (unit 1) Beech Industrial Centre

Porters Wood

St. Albans

Hertfordshire

AL3 6PQ

     
Issued share capital:   100 ordinary shares of £1.00
     
Shareholders and number of shares held:   The Company: 100 ordinary shares of £1.00 each
     
Directors:  

Alexander Calnan

Jennifer Smith

     
Secretary:   None
     
Auditors:   None
     
Outstanding Charges:   None

 

Name:   EB INFRASTRUCTURE LTD
Date and place of incorporation:  

29 June 2018

England and Wales

     
Registered number:   11441156
     
Registered office:  

Beech House (unit 1) Beech Industrial Centre

Porters Wood

St. Albans

Hertfordshire

AL3 6PQ

     
Issued share capital:   100 ordinary shares of £1.00
     
Shareholders and number of shares held:   The Company: 100 ordinary shares of £1.00 each
     
Directors:  

Alexander Calnan

Jennifer Smith

     
Secretary:   None
     
Auditors:   None
     
Outstanding Charges:   None

 

49

 

 

Schedule 3

 

Completion Arrangements

 

Part A

 

Sellers’ obligations on Completion

 

1On Completion the Sellers shall deliver to the Buyer or the Buyer’s Solicitors:

 

Shares and shares in Subsidiaries

 

1.1duly executed and completed stock transfer forms in respect of the Shares in favour of the Buyer or as it may direct;
  
1.2a copy of any power of attorney under which a stock transfer form or any other Transaction Document has been executed on behalf of any Seller;
  
1.3the share certificates in respect of the Shares;
  
1.4share certificates in respect of all issued shares in the capital of each of the Subsidiaries (or an express indemnity in a form satisfactory to the Buyer in the case of any missing certificate); and
  
1.5such waivers or consents as the Buyer may require to enable the Buyer or its nominees to become the registered holders of the Shares;

 

Books and records

 

1.6the original certificate of incorporation of the Company, any certificates of incorporation on change of name of the Company, originals of the certificates of incorporation and/or originals of the certificates of incorporation on change of name of each Subsidiary;
  
1.7(as agent for each Group Company) each Group Company’s statutory registers (written up to the Business Day immediately preceding the Completion Date) and its common seal (if any);
  
1.8the security and authentication codes for the Companies House WebFiling service and Protected Online Filing Scheme for each Group Company;

 

Release of security and banking arrangements

 

1.9the duly executed Deeds of Release and Termination in respect of the Existing Facilities or equivalent letters of release;
  
1.10evidence in a form satisfactory to the Buyer that each Group Company is released from all Encumbrances and Guarantees given by, or binding on them in respect of any debt, liability or other obligation of any person other than a Group Company;

 

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1.11evidence in a form satisfactory to the Buyer that all change of control consents required have been obtained and each third party has irrevocably and unconditionally waived any and all right of termination arising in connection with that change of control;
  
1.12in relation to the bank accounts of each Group Company bank statements and reconciliation statements dated on the Completion Date for all such bank accounts;

 

Resignations

 

1.13duly signed resignation letter in the Agreed Form from Simon Bladgen, David Houten, Imran Khatri and Paul Walsh, to take effect from Completion;

 

Property documents

 

1.14the title deeds and any other documents in their possession relating to the Properties;

 

Other Transaction Documents

 

1.15the Disclosure Letter duly executed by the Sellers;
  
1.16the Escrow Agreement duly executed by the Sellers Representative;
  
1.17the US Escrow Agreement duly executed by the Sellers Representative;
  
1.18the Lock-up Agreement duly executed by the Sellers;
  
1.19a settlement agreement in the Agreed Form between inter alia the Company, Fondcroft Services Limited and Leo Bedford duly executed by each of the parties thereto;
  
1.20the service agreement in the Agreed Form between Alexander Calnan and EB Charging Limited duly executed by Alexander Calnan and EB Charging Limited;
  
1.21the service agreement in the Agreed Form between Jennifer Smith and EB Charging Limited duly executed by Jennifer Smith and EB Charging Limited;
  
1.22a duly signed letter in the Agreed Form from Alexander Calnan to the Company confirming that on Completion he ceased to be a registrable person (within the meaning of section 790C of the Companies Act 2006) in relation to the Company;
  
1.23the Option Documents, duly executed or signed (as required) by the Optionholders; and
  
1.24a deed of termination in respect of the Investment and Shareholders’ Agreement duly executed by the Sellers;
  
1.25a duly executed US tax form W-8BEN from each Seller receiving Consideration Shares pursuant to the terms of this Agreement;
  
1.26a stock power form from each of the Sellers in respect of the Escrow Shares; and

 

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1.27A statement for each bank account of each Group Company evidencing the amount standing to the credit or debit of the relevant account as at the close of business on the Business Day prior to Completion.

 

Board resolutions of the Group Companies

 

2On Completion the Sellers shall procure that resolutions of the board of directors of each Group Company are passed by which the following business is transacted:
  
2.1(in the case of the Company only) the stock transfer forms referred to in paragraph 1.1 of this Part A are approved for registration (subject only to their being duly stamped);
  
2.2such persons as the Buyer may notify to the Sellers’ Representative are appointed as directors of each Group Company, such appointments to take effect immediately after Completion;
  
2.3the resignations referred to in paragraph 1.13 of this Part A are accepted;
  
2.4all existing instructions given to bankers in respect of the operation of its bank accounts are revoked and authority is given in favour of such persons as the Buyer may nominate to operate such accounts;
  
2.5the registered office of each Group Company is changed to such address as the Buyer may notify to the Sellers’ Representative, such change to take effect immediately after Completion;
  
2.6the service agreements between Alexander Calnan, Jennifer Smith and the relevant Group Company are approved and entered into by the Company; and
  
3the Sellers shall procure that a copy of the minutes (certified by a duly appointed officer of the relevant company as true and correct) of each such duly held board meeting is delivered to the Buyer or the Buyer’s Solicitors on Completion.

 

Repayment of amounts owing to the Group

 

4On Completion the Sellers shall repay or procure repayment of the following:
  
4.1the Shareholder Loans, repayment of which the relevant Sellers agree will constitute full and final settlement of all amounts (whether principal, interest or otherwise) owing by the Company in relation to the Shareholder Loans; and
  
4.2the Calnan Family Loans, repayment of which the relevant Sellers agree will constitute full and final settlement of all amounts (whether principal, interest or otherwise) owing by the Company in relation to the Calnan Family Loans.

 

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Part B

 

Buyer’s obligations on Completion

 

Documents to be delivered

 

1On Completion the Buyer shall deliver to the Sellers’ Representative or the Sellers’ Solicitors:
  
1.1the Escrow Agreement duly executed by the Buyer;
  
1.2the US Escrow Agreement duly executed by the Buyer;
  
1.3the Lock-up Agreement duly executed by the Buyer and Blink;
  
1.4a copy of a resolution (certified by a duly appointed officer of the Buyer as true and correct) of the board of directors of the Buyer authorising the execution of and the performance by the Buyer of its obligations under this Agreement and each of the Transaction Documents to be executed by the Buyer;
  
1.5a copy of a resolution of Blink approving the Transaction and each of the Transaction Documents to be executed by it; and
  
1.6a duly signed letter from Blink to the Company confirming that it is a registrable relevant legal entity (within the meaning of section 790C of the Companies Act 2006) in relation to the Company.

 

Payment of the consideration

 

2On Completion the Buyer shall:
  
2.1make those payments set out in clause 3.2(a) to 3.2(d) in accordance with the terms thereof; and
  
2.2pay an amount equal to £286,250 to General Subsidiary 2 in repayment of the CBILS Loan in accordance with the Undertaking.
  
3Within five Business Days of Completion, Blink shall:
  
3.1instruct the Transfer Agent to issue the Completion Consideration Shares to the Sellers and the Escrow Shares to be held in escrow by the US Escrow Agent in accordance with clauses 3.2(e) and 3.2(f); and
  
3.2deliver to the Sellers’ Representative or the Sellers’ Solicitors:

 

(a)a duly executed book statement in respect of the Completion Consideration Shares to be issued at Completion to that Seller and enter the Seller’s name in the register of shareholders of Blink as the holder of those Completion Consideration Shares; and
   
  (b)
copies of stock certificates in relation to the Escrow Shares.

 

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Schedule 4

 

Warranties

 

In this Schedule 4 (and in each defined term or expression used in this Schedule 4) each reference to the Company shall be deemed (unless the context otherwise requires) to include each Group Company.

 

In this Schedule 4 each of the Warranties shall be construed so that it shall apply to and with the same effect in relation to each jurisdiction outside of England and Wales in which the Group’s business is or has been carried on and without prejudice to the generality of the foregoing shall be interpreted in accordance with clause 1 of this Agreement.

 

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Part A

 

Fundamental Warranties

 

1Power To Sell
  
1.1Each Seller has the legal right and full power and authority to enter into and perform their obligations under this Agreement and each other Transaction Document to which they are a party in accordance with their terms.
  
1.2When executed, each Seller’s obligations under this Agreement and each other Transaction Document to which they are a party will be legal, valid, binding and enforceable in accordance with their terms.
  
1.3The entry into and performance by each Seller of this Agreement and each other Transaction Document to which they are a party will not:

 

(a)result in a breach of or constitute a default of:

 

(i)any laws or regulations in any relevant jurisdiction or of any order, decree or judgment of any court or any governmental or regulatory authority; or
   
(ii)any agreement or undertaking to which any Seller is a party; or

 

(b)require any Seller to obtain any consent or approval of, or give any notice to or make any registration with, any governmental or regulatory authority.

 

2Shares and Constitution

 

Incorporation and capacity

 

2.1The Company is a company which is duly incorporated and validly existing under the laws of its jurisdiction of incorporation and has full power and authority to carry on its business.

 

Shares in the Company

 

2.2The Shares have been lawfully allotted and issued and are fully paid or credited as fully paid.
  
2.3The Shares listed in Part A of Schedule 2 constitute the entire issued share capital of the Company.
  
2.4No loan capital or other security (other than the Shares) of the Company is in issue.
  
2.5No person other than the Sellers have any legal or beneficial entitlement to the Shares.
  
2.6There is no Encumbrance on any of the Shares, no commitment to create any such Encumbrance has been given and no person has claimed to be entitled to an Encumbrance on the Shares.

 

55

 

 

2.7There is no contract, agreement, arrangement, obligation, understanding, commitment or liability in respect of, and no person has any right requiring the allotment, issue, sale, transfer, conversion, purchase, redemption or repayment of or any other interest (including any options or pre-emption rights) in any of the Shares or any share in the capital of the Company (other than the Shares) or any loan capital or other securities of the Company (in each case whether issued or not).

 

Shares in the Subsidiaries

 

2.8The shares in the capital of each Subsidiary have been lawfully allotted and issued and are fully paid or credited as fully paid.
  
2.9

The shares in the capital of each Subsidiary listed in Part B of Schedule 2 constitute the entire issued share capital of that Subsidiary.

 

2.10No loan capital or other security (other than the shares listed in Part B of Schedule 2) of any Subsidiary is in issue.
  
2.11The Subsidiaries are wholly owned by the Company free from any Encumbrance and no person other than the Company has any legal or beneficial entitlement to any shares in the capital of any Subsidiary.
  
2.12There is no Encumbrance on any issued shares in the capital of any of the Subsidiaries (or any unissued share capital, loan capital or other securities of any of the Subsidiaries), no commitment to create any such Encumbrance has been given and no person has claimed to be entitled to an Encumbrance on any issued shares in the capital of any of the Subsidiaries (or any unissued share capital, loan capital or other securities of any of the Subsidiaries).
  
2.13There is no Contract and no person has any right requiring the allotment, issue, sale, transfer, conversion, purchase, redemption or repayment of or any other interest (including any options or pre-emption rights) in any share in the capital of any of the Subsidiaries or any loan capital or other securities of any of the Subsidiaries (in each case whether issued or not).

 

3Company Insolvency
  
3.1No order has been made for the winding up of the Company, or the making of an administration order in respect of the Company, or the appointment of a liquidator, receiver (including an administrative receiver), administrator, trustee, custodian or other official in respect of all or any part of the assets of the Company and so far as the Sellers are aware no petition has been presented, resolution passed, meeting convened or other steps taken.
  
3.2The Company is not insolvent or unable to pay its debts within the meaning of section 123 Insolvency Act 1986 and has not stopped paying its debts as they fall due.
  
4Seller Insolvency
  
4.1No statutory demand has been issued against any Seller nor are there any grounds for believing any Seller is unable to pay any debts within the meaning of section 268 of the Insolvency Act 1986.
  
4.2No order has been made for any Seller’s bankruptcy or for the appointment of a receiver over any assets of any Seller and so far as the Sellers are aware, no petition has been presented for any Seller’s bankruptcy or for the appointment of a receiver.
  
4.3No Seller has entered into an individual voluntary arrangement pursuant to the Insolvency Act 1986 and so far as the Sellers are aware no proposal has been made in respect of an individual voluntary arrangement.
  
4.4No event analogous to any of the circumstances mentioned in any of the above sub-paragraphs has occurred in relation to any Seller outside England.

 

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Part B

 

General Warranties

 

1Shares And Constitution

 

Constitutional documents

 

1.1The articles of association of the Company available for inspection in the electronic records kept by the Registrar of Companies in England and Wales (the “Registrar of Companies”) at the close of business on the date two Business Days prior to the Completion Date are true and complete, have not been amended since such date and have embodied therein or annexed thereto a copy of every resolution or agreement required to be filed with the Registrar of Companies pursuant to the Companies Acts.

 

Books and records

 

1.2All statutory books, books of account and other records of the Company required to be kept by applicable laws and regulations (the “Records”) are true and complete and have been properly prepared and maintained in accordance with all applicable legal and regulatory requirements and no notice or allegation that any is incorrect or should be rectified has been received by the Company and all such Records belonging to the Company or which ought to be in its possession are in its possession or under its control.
  
1.3If and to the extent that any Records are maintained or stored electronically:

 

(a)the Company is the owner of any hardware and software required to access, maintain, copy and use such Records, and such ownership is not shared with any other person; and
   
(b)such Records are adequately backed up.

 

1.4In relation to its register of people with significant control, the Company has at all times complied with its duties under section 790D (Duty to investigate and obtain information) and section 790E (Duty to keep information up-to-date) of the Companies Act 2006.
  
1.5All documents which should have been delivered to the Registrar of Companies are accurate and have been properly delivered.
  
1.6No warning notice or restrictions notice has been issued under Schedule 1B (Enforcement of disclosure requirements) of the Companies Act 2006 in respect of any shares or voting rights in, or any right to appoint or remove any member of the board of directors of, the Company.

 

57

 

 

Subsidiaries and interests

 

1.7Other than the Subsidiaries, the Company:

 

(a)has no, has never had and has not agreed to acquire any interest in the share capital of, or other investment in, any undertaking;
   
(b)has no, has never had and has not agreed to acquire any interest in any branch, agency, establishment, operations or other assets whatsoever outside the United Kingdom;
   
(c)is not, has never been and has not agreed to become a member of any limited liability partnership, partnership or other unincorporated association, joint venture or consortium (other than a bona fide trade association);
   
(d)does not and has never controlled or taken part in the management of any company or business organisation nor has it agreed to do so; and
   
(e)is not in relation to any company or limited liability partnership registered in the United Kingdom, a registrable relevant legal entity within the meaning of section 790C Companies Act 2006.

 

1.8The Company has no shadow directors.
  
2Accounts

 

General

 

2.1The Accounts:

 

(a)give a true and fair view of the assets, liabilities, financial position and state of affairs of the Company, the Subsidiaries and the Group as a whole as at the Accounts Date;
   
(b)give a true and fair view of the profits or losses of the Company, the Subsidiaries and the Group as a whole for the financial year ended on the Accounts Date;
   
(c)make full provision for all actual liabilities (including any deferred taxation);
   
(d)include in the notes disclosure of all contingent liabilities; and
   
(e)make full provision for:

 

(i)bad or doubtful debts (if known);
   
(ii)the depreciation of assets;
   
(iii)the future cost of any unfunded commitments under any pension scheme involving the Company or any Subsidiary.

 

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2.2The Accounts have been prepared in accordance with applicable law and accounting principles and practices in force and applicable to the Company, the Subsidiaries and the Group at the Accounts Date.
  
2.3The Accounts have been prepared using the accounting policies and practices and the assumptions and estimation techniques adopted and applied in preparing the audited financial statements of the Company, the Subsidiaries and the Group for the three financial years preceding the financial year to which the Accounts relate.

 

Unusual factors

 

2.4The results shown by the Accounts and the audited accounts (including any consolidated accounts) for each of the preceding three financial periods of the Company, the Subsidiaries and the Group have not (save as fairly disclosed therein) been affected by any exceptional, extraordinary, unusual, infrequent or non-recurring item or by any other factor.

 

Management Accounts

 

2.5The Management Accounts have been prepared with due care and attention, on a basis consistent with the Accounts and give a fair and reasonable view of the assets and liabilities of the Company, the Subsidiaries and the Group as at their date and of the profits and losses or income and expenditure for the period in respect of which they have been prepared and are not inaccurate or misleading in any material respect.

 

Locked Box Accounts

 

2.6The Locked Box Accounts have been prepared with due care and attention, on a basis consistent with the Accounts and give a true and fair view of the assets and liabilities of the Company, the Subsidiaries and the Group as at the Locked Box Accounts Date and of the profits and losses for the period in respect of which they have been prepared and are not inaccurate or misleading in any material respect.

 

Debts

 

2.7Save as provided for in the Accounts or the Management Accounts, all debts due to the Company will so far as the Sellers are aware realise their full amount in cash in accordance with the Company’s normal terms for payment.

 

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3Changes since the Accounts Date

 

General

 

3.1Since the Accounts Date:

 

(a)there has been no (and there have been no circumstances likely to give rise to any) material adverse change in the financial or trading position or prospects of the Company;
   
(b)the Company’s business has been carried on in the ordinary course, on arm’s length terms and so as to maintain the same as a going concern;
   
(c)there has been no material change in the nature of the business carried on by the Company or in the manner in which such business is conducted;
   
(d)the Company has not issued or agreed to issue any share or loan capital;
   
(e)otherwise than in the ordinary course of business, the Company has not entered into any transaction or assumed or incurred any liabilities or made any payment not provided for in the Accounts;
   
(f)the Company has not offered price reductions, discounts or allowances on sales of stock or services or provided them at less than cost to an extent that may materially affect its profitability;
   
(g)save for the ordinary business of an annual general meeting, no resolution of the members of the Company has been passed;
   
(h)the Company has paid its creditors within the time limits agreed with such creditors;
   
(i)the Company has not discounted or released any debts due to the Company (other than for any debts where full provision was made in the Accounts for such bad debt);
   
(j)there has been no unusual increase or decrease in the level of stock of the Company;
   
(k)no dividends or other distributions have been declared, made or paid or agreed to be paid by the Company; and
   
(l)the Company has not issued or allotted or purchased, redeemed or repaid or otherwise reduced any of its share capital or loan capital or other securities (or agreed to do any of the same).

 

4Assets

 

Ownership and condition

 

4.1All assets (tangible and intangible, but excluding any Property) used by the Company are legally and beneficially owned by the Company free from any Encumbrance or adverse claim and are in the possession of or under the control of the Company.

 

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4.2The Company owns all assets (tangible and intangible but excluding any Property) which it needs to carry on its business.

 

4.3Where any assets (excluding Property) are used but not owned by the Company or any facilities or services are provided to the Company by a third party, no event of default has occurred or is subsisting which entitles (or with the passage of time and/or giving of notice would entitle) any third party to terminate any agreement or licence in respect of the provision of such facilities or services.

 

4.4All plant and equipment owned or used by the Company:

 

(a)is in good working condition (fair wear and tear excepted, and for the purposes of this Warranty fair wear and tear shall take into account the fact that chargers, being public infrastructure, are outside and exposed to the elements);

 

(b)has been regularly and properly serviced and maintained (in the case of chargers, only to the extent that the Company’s contractual obligations in respect of those chargers require it to provide service and maintenance), and;

 

(c)complies with appropriate safety regulations.

 

None is dangerous, in need of replacement or surplus to requirements.

 

Capital expenditure

 

4.5Complete and accurate details of the capital commitments of the Company have been Disclosed.

 

Hire purchase and leased assets

 

4.6All bills of sale, hire-purchase, credit or conditional sale, leasing, rental or other similar agreements to which the Company is a party have been entered into in the ordinary course of business and complete and accurate details of the material terms of all such agreements have been Disclosed and no party is in breach of any such agreement.

 

Stock

 

4.7Stock and work in progress have been valued in the Accounts at the lower of cost and net realisable value.
  
4.8The level of the Company’s stock is appropriate having regard to the current and anticipated levels of business.
  
5Trading And Contracts

 

Warranties and representations

 

5.1Save for any warranty implied by law or contained in its standard terms of business, the Company has not given any warranty, guarantee, indemnity or made any representation in respect of goods or services supplied or agreed to be supplied by it.

 

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Material customers and suppliers

 

5.2Complete and accurate details of all Contracts with customers and suppliers who in the financial period ended on the Accounts Date accounted respectively for five per cent. or more of the sales by or supplies to the Company (“Material Counterparties”) have been Disclosed.
  
5.3No Material Counterparty has ceased, or threatened to cease to do business with, or reduced or threatened to reduce in any material respect the extent to which it does business with, the Company and there has been no material adverse change in the basis or terms on which any Material Counterparty does business with the Company;

 

Effect of sale

 

5.4Neither any Transaction Document nor any document to be executed at or before Completion will:

 

(a)entitle a customer or supplier to cease or reduce trading or alter the terms on which it deals with the Company and so far as the Sellers are aware no customer or supplier is likely to do so; or
   
(b)result in breach of or an event of default under, or require the consent of a person under, or enable a person to terminate a Contract or result in the creation, crystallisation or enforcement of any Encumbrance over any asset of the Company.

 

Breach and enforceability of Contracts

 

5.5Neither the Company nor any other party to a Contract has given notice to terminate the same.
  
5.6There is no ground for termination, avoidance or repudiation of, or a material change in the terms of, any Contract on grounds of breach by the Company.
  
5.7No party to a Contract is in material breach of the same and so far as the Sellers are aware there are no circumstances which might result in such a breach.

 

Material Contracts

 

5.8No Contract:

 

(a)is outside the ordinary course of business or otherwise than on arm’s length terms;
   
(b)is of a long term nature (that is, unlikely to have been fully performed in accordance with its terms within six months after the date on which it was entered into or undertaken);

 

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(c)is incapable of lawful termination (which for these purposes shall include without the payment of compensation) by the Company at any time on no more than three months’ notice;
   
(d)is likely to result in a loss to the Company or which cannot readily be fulfilled by the Company on time without undue expenditure of money, effort or personnel;
   
(e)places the Company under any prospective or material contingent liability in respect of any disposal by the Company of any of its assets;
   
(f)involves the grant of any sole or exclusive rights by or to the Company;
   
(g)is for the supply of goods and/or services by or to the Company on terms under which retrospective or future discounts, price reductions or other financial incentives are given;
   
(h)relates to distributorship, agency, marketing or licencing;
   
(i)involves payments by or to the Company by reference to fluctuations in any index or the rate of exchange for any currency or commodity;
   
(j)relates to any joint venture, consortium, partnership or other association (other than a bona fide trade association); or
   
(k)confers any power of attorney or other authority to any person to enter into any Contract on behalf of the Company (other than to directors or employees to enter into routine trading contracts in the normal course of their duties),

 

and the Company has no outstanding offer capable of acceptance which could give rise to any of the same.

 

5.9In the 18 months prior to the Completion Date, no contract, arrangement, transaction or commitment involving the Company has either been terminated or discharged by frustration, nor has the performance of any obligation thereunder been suspended or otherwise materially varied, in each case for a reason associated with COVID-19.

 

Defective products and services

 

5.10The Company has not manufactured, sold or provided any product or service which was faulty, defective or dangerous or did not comply with any warranty or representation (express or implied) made in respect of it or any law, regulation, standard and requirement applicable to the product or service.

 

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5.11In the last year the Company has not manufactured, sold or provided any product or service:

 

(a)to any customer in respect of which the Company has received a complaint and which has resulted in a loss to the Company of more than £5,000 in respect of the incident complained of; or
   
(b)where there have been more than five consumer complaints received by the Company in respect of the same stock keeping unit during the same calendar month; or
   
(c)where the Company has issued a product recall or advised any of its customers to do so.

 

Business continuity

 

5.12The Company has in place, in accordance with all applicable regulatory requirements, an adequate fully documented business continuity and crisis management plan which would enable the maintenance or prompt restoration of business-critical functions upon the occurrence of any unplanned interruption, event or circumstance that may significantly impair the ability of the Company to carry on its business, including any civil emergency, pandemic or civil unrest.

 

6Transactions With The Sellers And Directors

 

Connected persons

 

6.1There is not, nor during the past six years has there been, any Contract to which the Company is a party and in which any of the Sellers (or any of their connected persons) or any other person beneficially interested in the share capital of the Company at that time or any director of the Company (except for service agreements) or any person connected with any of them is or has been interested.

 

6.2None of the Sellers (nor any of their connected persons) nor any director of the Company has any interest in any other company or business which has a close trading relationship with or is in competition with the Company.

 

Indebtedness to/from the Sellers

 

6.3There is no outstanding indebtedness or other liability (actual or contingent) on any account whatever owing by the Company to any of the Sellers (or any of their connected persons) or from any of the Sellers (or any of their connected persons) to the Company.

 

6.4Except for any Surviving Obligations and other than pursuant to the Service Agreements to be entered into on Completion:

 

(a)no Group Company has any liability, obligation or commitment of any kind to any of the Sellers (or any of their respective connected persons); and

 

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(b)no circumstances or arrangements exist under which any Group Company could have any liability, obligation or commitment of any kind to any of the Sellers (or any of their respective connected persons).

 

7Finance

 

Bank accounts

 

7.1Complete and accurate details of all bank accounts of the Company have been Disclosed.

 

Financial Debt

 

7.2The Company does not have outstanding any obligation to any person for the payment or repayment of money, whether present or future, actual or contingent in respect of:

 

(a)moneys borrowed and debit balances at banks or other financial institutions;
   
(b)any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
   
(c)any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
   
(d)the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with generally accepted accounting principles, be treated as a finance or capital lease;
   
(e)receivables sold or discounted (other than any receivables if and to the extent they are sold on a non-recourse basis and meet any requirements for de-recognition under generally accepted accounting principles);
   
(f)any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
   
(g)any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price;
   
(h)any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
   
(i)the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs 7.2(a) to 7.2(h) above,

 

any such obligation being “Financial Debt”.

 

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7.3The total amount borrowed by the Company from any source does not exceed its agreed facilities or any limitation on borrowing.
  
7.4There is no Encumbrance affecting the Company or any of its assets other than the charges listed in Schedule 2.
  
7.5The Company has not:

 

(a)factored or discounted any of its debts; or
   
(b)engaged in financing of a type which would not need to be shown or reflected in the Accounts; or
   
(c)waived any right of set-off it may have against any third party.

 

Indebtedness owed to the Company

 

7.6The Company has not lent or agreed to lend money which has not been repaid to it (other than credit arising in the ordinary course of business), does not own the benefit of any debt (other than debts arising in the ordinary course of business) and does not hold any security in respect of obligations owed to it by any other person.

 

Events of default

 

7.7No event has occurred or is subsisting or been alleged or so far as the Sellers are aware is likely to arise which:

 

(a)is an event of default under or a breach of or otherwise will lead to any obligation to repay or give security under any Financial Debt of the Company (or with the passage of time and/or the giving of any notice will be/do the same); and/or
   
(b)will lead (or with the passage of time and/or the giving of any notice will lead) to the creation, crystallisation or enforcement of any Encumbrance over any asset of the Company or any Encumbrance created in connection with any Financial Debt of the Company, guarantee, indemnity or other obligation of the Company becoming enforceable.

 

Guarantees and indemnities

 

7.8The Company is neither a party to nor has any liability (including any prospective or contingent liability) under any Guarantee or other agreement to secure or support an obligation of a third party.
  
7.9The Company is not dependent on or supported by any Guarantee or other similar obligation or comfort given by another person.

 

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COVID-19 support schemes

 

7.10The Data Room contains full details of the Company’s participation in any corporate borrowing schemes or other business support measures facilitated by the UK government or any local authority in connection with COVID-19 (“COVID-19 Facilities”), including the Coronavirus Business Interruption Loan Scheme, Coronavirus Bounce Back Loan Scheme, the Coronavirus Large Business Interruption Loan Scheme, the COVID Corporate Financing Facility, the Coronavirus Future Fund, any infection control or other grants, any scheme for free provision of personal protective equipment, or any business rates rebate (but excluding, for the purposes of this Warranty, the CJRS), including copies of all documents relating to such participation. The Company has not done, or omitted to do, any act which could result in all or part of any such assistance becoming repayable early or being forfeited or withheld.
  
7.11The Company has not contravened or otherwise failed to comply with the terms and conditions of any of the COVID-19 Facilities.

 

Grants

 

7.12Complete and accurate details of any levy or charge payable by the Company and of each grant or subsidy or other financial assistance received (and not fully repaid) or receivable by the Company from any source have been Disclosed and the Company has not done, or omitted to do, any act which could result in all or part of any such assistance becoming repayable early or being forfeited or withheld.
  
8Intellectual Property Rights
  
8.1Complete and accurate details of any Intellectual Property Rights of which the Company is, or has applied to be, registered as proprietor, including as to registration (and applications therefor), priority and renewal dates, have been Disclosed.
  
8.2Complete and accurate details of the unregistered trade marks and copyright or design right works which are material to the Company have been Disclosed.
  
8.3Except for the IP Agreements (as defined in paragraph 8.11 below), the Company is the sole unencumbered legal and beneficial owner capable of transferring with full title guarantee and, where registered, the sole registered proprietor of all Intellectual Property Rights used or required by it in connection with its business.
  
8.4The Intellectual Property Rights owned by the Company are valid, subsisting and enforceable and, so far as the Sellers are aware, there are no circumstances (other than the non-payment of renewal fees not yet due) whereby any of the Intellectual Property Rights owned or used by the Company could be invalidated, revoked, not granted or not renewed in whole or in part. All renewal fees regarding the Intellectual Property Rights owned or used by the Company due on or before the Completion Date have been paid in full.

 

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8.5All patentable inventions made by employees of the Company and used or intended to be used in the business of the Company were made in the normal course of the duties of the employees concerned and there are no outstanding or potential claims against the Company under any contract or under Section 40 of the Patents Act 1997 or any equivalent provision of any foreign law providing for employee compensation or ownership in respect of any rights or interests in Intellectual Property Rights.

 

Infringement

 

8.6The Company has not infringed and is not infringing, either directly or, so far as the Sellers are aware through any other person, the Intellectual Property Rights of any third party.
  
8.7So far as the Sellers are aware none of the Intellectual Property Rights owned by the Company have been or are being infringed by any third party and no third party has threatened such infringement in writing.
  
8.8There has been, and is, no breach of confidence, passing off or actionable act of unfair competition by any third party in relation to the Company’s business or assets, and no such breach of confidence, passing off or actionable act of unfair competition is anticipated.
  
8.9None of the Intellectual Property Rights used or required by the Company in connection with its business, are the subject of any current, pending or, so far as the Sellers are aware, threatened challenge, claim or proceeding, including for opposition, cancellation, invalidity, entitlement, revocation or rectification and, so far as the Sellers are aware there are no facts or matters which might give rise to any such challenge, claim or proceeding.
  
8.10No moral rights have been asserted or are likely to be asserted which would affect the use of any Intellectual Property Rights used or required in the business of the Company.

 

Use of third party intellectual property rights

 

8.11True and complete copies of all Contracts whereby:

 

(a)the Company uses or exploits any Intellectual Property Rights belonging to a third party (save for licences relating to the use of Software which is commercially available “off the shelf” on standard terms); or
   
(b)the Company has licensed or otherwise permitted, expressly or by implication, any use whatsoever of any Intellectual Property Rights

 

(together the “IP Agreements”) are contained in the Data Room (or, where not reduced to writing, are accurately described in the Disclosure Letter).

 

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8.12All the IP Agreements are valid and binding and none has been the subject of any breach or default by any party or of any event which with notice or lapse of time or both would constitute a breach or default.
  
8.13So far as the Sellers are aware no IP Agreement is or will become liable to termination because of any breach by or on behalf of the Company or the transaction contemplated by this Agreement.
  
8.14Where the IP Agreements are of such a nature that they could be registered with the appropriate authorities and such registration would have the effect of strengthening the Company’s rights and/or there is a requirement for registration, the IP Agreement have been so registered.
  
8.15By carrying on business in the ordinary course the Company is not liable to pay any royalty or like fee.

 

Confidential Information

 

8.16Other than in the ordinary course of business under the terms of a written confidentiality agreement there has been no disclosure of or agreement to disclose to any person other than the Buyer, employees or former employees of the Company any material Confidential Information, commercial or industrial know-how or the trade secrets of the Company.
  
8.17So far as the Sellers are aware there has been and is no unauthorised disclosure or misuse by the Company of any Confidential Information or know-how belonging to a third party.
  
8.18The Company has taken all necessary steps commensurate to its size and resources to maintain the confidentiality of all Confidential Information.

 

General

 

8.19The Company does not use or otherwise carry on its business under any name other than its corporate name.
  
8.20The Intellectual Property Rights which at or before the Completion Date are owned by the Company or licensed to it comprise all the rights and interests in Intellectual Property Rights necessary or convenient for the carrying on of the business of the Company to the extent that it is presently conducted.
  
9IT systems
  
9.1In this paragraph 9:

 

Cybersecurity Requirements” means all laws, regulations, codes, mandatory guidance, and standards, industry schemes and sanctions relating to security of network and information systems and security breach and incident reporting requirements which are from time to time applicable to the Company, including the Data Protection Laws;

 

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Databases” means the Systems Data that is owned, used by or has been compiled by the Company;

 

“Good Industry Practice” means the exercise of that degree of skill and care as would be expected from a leading company within the relevant industry or business sector;

 

Hardware” means any and all computer hardware (including network and telecommunications equipment) and mobile devices used in connection with the business of the Company;

 

IT Contracts” means all agreements or arrangements (whether or not in writing and including those currently being negotiated) under which any third party (including any Seller and any source code deposit agent) provides or will provide any element of, or services relating to, the IT Systems, including leasing, hire purchase, licensing, maintenance, website hosting, outsourcing, security, back-up, disaster recovery, insurance, cloud computing and other types of services agreements;

 

IT Systems” means the network and information systems that are owned, used, leased or licensed by or to the Company including: (i) the Hardware; (ii) the Software and (iii) all Databases;

 

Open-Source Software” means any software or Source Code that meets the definition set out at http://opensource.org/docs/osd or any libraries or code licensed from time to time under the General Public Licence (as set out at http://www.gnu.org/licenses/gpl.html) or any similar licence;

 

Security Incident” means any event having an actual material adverse effect on the security of the IT Systems and/or the Systems Data;

 

Software” means all computer programs currently used in connection with the business of the Company;

 

Systems Data” means the digital data (including personal and non-personal data) stored, processed, retrieved or transmitted by any element of the IT Systems; and

 

Virus” means any program which contains malicious code or infiltrates or damages a computer system without the owner’s informed consent or is designed to do so or which is hostile, intrusive or annoying to the owner or user and has no legitimate purpose.

 

IT Systems

 

9.2Complete and accurate details of all material IT Systems and IT Contracts have been Disclosed.
  
9.3The IT Systems and IT Contracts are adequate for the business of the Company.
  
9.4The Company is the owner of and in possession of the IT Systems free from Encumbrances. The Company has obtained all necessary rights from third parties to enable its exclusive and unrestricted use of the IT Systems as required for the business of the Company both before and after Completion.

 

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9.5All elements of the IT Systems:

 

(a)are functioning properly in accordance with all applicable specifications and with any service levels set out in the IT Contracts, and are fit for the purposes of the business of the Company;
  
(b)are not materially defective in any respect and have not been materially defective or materially failed to function during the last three years;
  
(c)do not contain any Virus or other extraneously-induced malfunction and have not within the last twelve months been infected by any Virus or so far as the Sellers are aware, accessed by any unauthorised person;
  
(d)have not suffered any failure or breakdown which has caused disruption or interruption to the business of the Company;
  
(e)have sufficient capacity, scalability and performance to meet the current requirements of the Company; and
  
(f)have been satisfactorily and regularly maintained, all versions of the Software used by the Company are currently supported by the respective owners or licensors of the Software and the IT Systems have the benefit of appropriate maintenance and support agreements.

 

9.6Without prejudice to the foregoing, no Open-Source Software has been included or used in, or in the development of, any element of the IT Systems and no element of the IT Systems in contravention of its applicable open-source licence terms and no third party is asserting or has in the last three years asserted any such contravention. operates in such a way that it is compiled with or linked to any Open-Source Software.
  
9.7Each of the Databases is complete and accurate and has not suffered any material loss or corruption during the last three years.
  
9.8The Company has implemented appropriate procedures in accordance with Good Industry Practice (including in relation to off-site working where applicable) for ensuring the security of the IT Systems and the confidentiality and integrity of the Systems Data.
  
9.9The Company has in place:

 

(a)a business continuity plan which is appropriate and proportionate to the Company’s size and resources and that would enable the business of the Company to continue if there were any significant damage to or destruction of some or all of the IT Systems; and
(b)an adequate data security breach plan.

 

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9.10Each such plan referred to in paragraph 9.9 above (true and complete copies of which are contained in the Data Room) complies with the Cybersecurity Requirements and best industry practice.
  
9.11The Company has not:

 

(a)breached the Cybersecurity Requirements; or
   
(b)suffered any Security Incident.

 

9.12So far as the Sellers are aware the IT Systems were developed in accordance with all applicable Cybersecurity Requirements and comply with all such requirements.
  
9.13The processing of any Systems Data on the IT Systems for the usual business purposes of the Company does not so far as the Sellers are aware breach any Cybersecurity Requirements.

 

IT Contracts

 

9.14The Company either owns the Hardware, or has been validly permitted to use the Hardware pursuant to the IT Contracts. Complete and accurate details of all Hardware, ownership of and rights to use such Hardware have been Disclosed.
  
9.15The IT Contracts are in full force and effect and are valid and binding.
  
9.16No act or omission has occurred which would, if necessary with the giving of notice or lapse of time, constitute a breach by the Company of any IT Contract, and so far as the Sellers are aware no act or omission has occurred which could, if necessary with the giving of notice or lapse of time, constitute a breach by the counterparty of any IT Contract.
  
9.17All fees and other payments payable by the Company under the IT Contracts have been paid when due and, there has been no breach of any IT Contract by the Company or any other party.
  
9.18There are and have been no claims, disputes or proceedings arising or, so far as the Sellers are aware, threatened under any of the IT Contracts.
  
9.19The Company has been validly permitted to use the Software pursuant to IT Contracts which are in full force and effect. Complete and accurate details of all material Software and the IT Contracts under which such Software is licensed by the Company have been Disclosed.
  
9.20None of the IT Contracts is liable to be terminated or otherwise materially affected by a change of control of the Company, and the Sellers have no reason to believe that any of the IT Contracts will not be renewed on the same or substantially the same terms when they expire.

 

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No Disputes

 

9.21The Company has not at any time had any dispute with any person relating to:

 

(a)the IT Systems;
   
(b)the IT Contracts; and/or
   
(c)proprietary or other rights in or to the Software.

 

Maintenance, escrow and security

 

9.22Other than in respect of standard off-the-shelf software, the Company has access to the source code of all Software.
  
9.23If the persons who provide maintenance and/or support services in respect of the IT Systems cease or are unable to do so, the Company has all the necessary rights and information to enable it or a third party to continue to maintain and/or support the IT Systems.
  
9.24The Company holds up-to-date functioning back-up copies of the Software.
  
10Directors, Workers and Employees
  
10.1