FAIRVIEW
Corporate Management Limited
C O N S U L T A N C Y
A G R E E M E N T
between
and
Fairview
Corporate
Management
Limited,
a
company incorporated in Scotland
under
the
Companies
Acts
(Registered Number SC255334)
and having its Registered Office at
Fairview 3 Hazelwood Court,
Hawick, TD9 7QF (hereinafter
referred to as the Company)
Beaconhouse
Educational
Services Limited, a company
incorporated in England & Wales
under the Companies Act and
having its Registered Office at
Lynton
House
7-12
Tavistock
Square,
London
WC1H
9LT
(hereinafter referred to as the
Client)
WHEREAS:
A
B
The Company offers a consultancy service in relation to acquisitions
and related matters, and is willing to provide such services to the
Client under the terms of this agreement (this Agreement); and
The Client wishes to benefit from certain skills and abilities of the
Company.
IT IS NOW THEREFORE AGREED AS FOLLOWS:
1 Definitions
1.1Unless the context otherwise requires the following words or phrases will
bear the following meaning:
Commencement Date
Fees
Force Majeure
means 16th May 2008
means the fees , costs and others payable by
the Client to the Company in relation to the
Services as set out in the Part Two of the
Schedule;
means a cause beyond the reasonable
control of the Company and includes but is
not limited to:
Act of God, explosion, flood, tempest, fire
or accident;
war or threat of war, sabotage,
insurrection,
civil
disturbance
or
requisition;
acts, restrictions, regulations, bye-laws,
prohibitions or measures of any kind on
the
part
of
any
governmental,
parliamentary or local authority;
strikes, lock-outs or other industrial
actions or trade disputes (whether
involving employees of the Company or of
a third party);
Man-Day
means a period of at least 8 hours work;
Schedule
means the Schedule in two parts annexed
and attached hereto;
Services
means the services to be performed by the
Company as set out in the Part One of the
Schedule;
Term
means one Man-Day
1.2In this Agreement:1.2.1 the clause headings are included for convenience only and shall not
affect the construction of this Agreement;
1.2.2 words denoting the singular shall include the plural and vice versa;
1.2.3 a reference to a person includes a reference to his or its executors,
administrators, successors and assignees;
1.2.4 references to persons shall be deemed to include references to natural
persons, firms, partnerships, companies, corporations, associations,
organisations, foundations and trusts (in each case whether or not
having separate legal personality); and
1.2.5 words and expressions defined in the Companies Act 1985 shall, where
the context so admits, bear the same meanings in this Agreement.
1.3References in this Agreement to statutory provisions shall (where the
context so admits and unless otherwise expressly provided) be
construed as references to those provisions as respectively amended,
consolidated, extended or re-enacted (whether before or after the date
of this Agreement) and to any orders, regulations, instruments or other
subordinate legislation made under the relevant statutes.
1.4Any reference to writing or written includes faxes and any nontransitory form of visible reproduction of words.
1.5The so-called "ejusdem generis" rule shall not apply and accordingly the
interpretation of general words shall not be restricted by being
preceded by words indicating a particular class of acts, matters or
things, or by being followed by particular examples.
1.6Words phrases acronyms or abbreviations which are not expressly defined in
this Agreement but which have a recognised or have particular meaning
in the Accounting Profession shall have that meaning in this Agreement
2 Commencement and Term
2.1
This Agreement will commence on the Commencement Date, and will
continue until either the earlier of :-
2.1.1 the expiry of the Term; or
2.1.2 this Agreement being terminated in accordance with clause 11 below,
it being acknowledged that certain of the obligations under this
Agreement endure beyond termination, including but not limited to
those contained within clause 8.
2.2
This Agreement may only be extended or renewed by mutual
agreement of the parties in writing.
2.3
During the Term, the Company may accept and perform engagements
for other companies, firms or persons which do not in the reasonable
opinion of the Company conflict with or materially impinge upon its
ability to provide the Services to the Client.
3 Services
3.1The Company will provide the Services to the Client for the Term.
3.2
The Company will provide the Services using reasonable care and skill.
4 Fees
4.1
The Client will pay the Company the Fees.
4.2
The Company will submit an invoice to the Client in respect of Fees
payable in relation to Services within seven days of the completed
assignment.
Expenses
5.1
The Client will reimburse the Company for any Client-approved
disbursements and other reasonable expenses (together Expenses)
which have been incurred by the Company in the provision of the
5.2
6
Services (appropriately evidenced by receipts or vouchers if required in
advance by the Client).
The Company will submit an invoice to the Client in respect any such
Expenses within seven days of the completed assignment.
Payment
6.1
Payment of any invoice issued in accordance with clauses 4 and 5 will
be made by the Client to the Company within 14 days of the date of
that invoice.
6.2
If the Client fails to pay to the Company any monies due under clauses
4 and 5 timeously in terms of clause 6.1, any amount which is
outstanding after such 14 day period shall bear interest from the date
of the invoice to which it relates until payment is received by the
Company at 4% per cent per annum over The Royal Bank of Scotland
plc base rate from time to time, compounded monthly on the first day
of each month.
Professional Indemnity Insurance
7
7.1
The Company will take out and maintain professional indemnity
insurance with a reputable insurance company for an amount thought
reasonable by the Company with regards to the nature of Services to
be provided to the Client and will supply to the Client, on reasonable
demand, details of the insurance then in place.
Confidential information
8.1
The Company will not disclose or use or cause to be disclosed or used,
at any time during or subsequent to this Agreement, any secret or
confidential information of the Client or any of the Clients clients or
customers or any other non-public information relating to the business,
financial or other affairs of the Client acquired by the Company except
as required by the Client in connection with the Companys
performance of this Agreement or as required by law.
8.2
The Client will not disclose or use or cause to be disclosed or used, at
any time during or subsequent to this Agreement, any secret or
confidential information of the Company or any of the Companys
clients or customers or any other non-public information relating to the
business, financial or other affairs of the Company acquired by the
Client except as required by the Company in connection with the
Clients performance of this Agreement or as required by law.
Force Majeure
9.1
If the Company is affected by Force Majeure it shall forthwith notify the
Client the nature and extent thereof.
9.2
The Company will not be deemed to be in breach of this Agreement, or
otherwise be liable to the Client, by reason of any delay in
performance, or non-performance, of any of its obligations (whether in
whole or part) under this Agreement to the extent that such a delay or
non-performance is due to any Force Majeure of which it has notified
the Client and the time for performance of any such obligation shall be
extended accordingly.
9.3If the Force Majeure in question prevails for a continuous period in excess
of [three] months, the Company shall be entitled to immediately
terminate this Agreement by notice.
10
Limitation of Liability
10.1
Except in respect of death or personal injury caused by the Companys
negligence, the Company will not be liable to the Client in any way for
any loss of profit or any special, indirect or consequential loss,
damage, costs expenses or other claims (whether caused by the
negligence of the Company, its servants or agents or otherwise) which
arise out of or in connection with this Agreement.
In respect of any liability not actually excluded under clause 10.1 (and
other than any liability in respect of death or personal injury caused by
the Companys negligence), the entire liability of the Company under
or in connection with this Agreement will be the lesser of (i) Two
Hundred and Fifty Thousand Pounds (250,000) or (ii) the amount
insured under the Companys professional indemnity insurance (the
amount of which sum being available to the Client under clause 7).
10.2
10.3
It is expressly acknowledged by the Client that the Company alone is
responsible for the provisions of the Services, and that no director,
officer, employee, agent or other person associated with the Company
has any personal liability (other than as a result of fraud) to the Client
or any third party arising out of any act or omission of the Company or
in relation to, in connection with or otherwise arising out of the
provision (or not as the case may be) of the Services.
11
Termination
11.1 Either party may by written notice summarily terminate this Agreement
with immediate effect if the other party:
11.1.1breaches any term of this Agreement which, in the case of a breach
capable of remedy, is not remedied by the relevant party within 7 days
of a written notice from the other party specifying the breach and
requiring its remedy;
11.1.2becomes insolvent or is unable to pay its debt or enters into voluntary
liquidation; or
11.1.3 conducts itself in any manner which, in the reasonable opinion of the
other party, brings or is likely to bring either or both of them into
disrepute.
11.2 Other than summary termination under clause 11.1 the Company or the
Client may, during the Term, terminate this Agreement by giving no
less than one calendar months notice.
12 Parties Status
12.1 The Company and Client agree and accept that nothing contained in
this Agreement will render the Company (or the Client) an employee,
agent or partner of the Client (or the Company).
13 Personal Agreement
13.1 This Agreement is personal to the Company and the Client, and neither
may sell, assign or transfer any duties, rights or interests created
under this Agreement without the prior written consent of the other.
14
Entire Agreement
14.1 This Agreement contains the entire agreement of the parties and it
supersedes any previous agreement between the parties in relation to
the matters with which it deals and represents the entire understanding
between the parties in relation to those matters. In addition no
warranties, undertakings or representations, other than those expressly
set out herein, have been made by or to any party hereto or have
induced any such party to enter into this Agreement.
14.2 This Agreement may only be modified in writing, signed by both parties,
and in the case of the Company no such agreement will be binding
upon it unless signed by a registered director.
15
Notices
15.1 Any notice to be given by one party to the other will only be validly
given if posted by prepaid recorded delivery first class post within the
mainland of the United Kingdom and correctly addressed to the party
to be served, and will be deemed served, on the earlier of actual
receipt or the third working day after sending.
15.2 For these purposes of this Agreement the parties addresses for service
are those stated at the beginning of this Agreement or such other
address as is notified to the other party in compliance with clause 15.1.
16
Governing law
16.1 This Agreement is governed by and to be construed in accordance with
Scots law and the parties submit to the exclusive jurisdiction of the
Scottish courts.
IN WITNESS whereof this Agreement consisting of this and the eight
preceding pages together with the Schedule in two parts is annexed and
executed as follows:
For and on behalf of the Company by William R Hodgins, a
director/authorised person at Fairview 3 Hazelwood Court, Hawick on the
16th May 2008:
Director / Authorised person
For and on behalf of the Client by Nassir Kasuri, a director/authorised person
at Beaconhouse Educational Services Limited on
the 2008:
Director / Authorised person
THIS IS PART ONE OF THE SCHEDULE REFERRED TO IN THE
FOREGOING CONSULTANCY AGREEMENT BETWEEN THE COMPANY
AND THE SUPPLIER.
Services
The following services are the Services provided for in the foregoing
agreement:
To provide intelligence and advice to enable strategic acquisitions within the
UK childcare sector:
Identify suitable acquisition targets based on pre-defined criteria
Establish initial contact with suitable targets and obtain necessary
information in order to evaluate the opportunity and achieve
exclusivity
Participate in the discussions and formulation of offers to purchase
THIS IS PART TWO OF THE SCHEDULE REFERRED TO IN THE
FOREGOING CONSULTANCY AGREEMENT BETWEEN THE COMPANY
AND THE CLIENT.
Fees
The following fees are the Fees provided for in the foregoing agreement:
0.5% of the acquisition value up to a maximum of 20,000 payable
only on the completion of a transaction.
The above fee will attract VAT at the prevailing UK Rate which is
currently 17.5%
For the avoidance of doubt, the above fee will be assumed to include
all travel and associated expenses.
The above fee will be eligible to be paid only on the basis of Fairview
Corporate Management Limited introducing the acquisition. In the
event that the Client introduces an opportunity and wishes the
company to participate in the evaluation and any associated matters
then a rate of 500 per day plus VAT plus travel expenses will be
payable.
FAIRVIEW
Corporate Management Limited
CONSULTANCY AGREEMENT
between
FARIVIEW CORPORATE MANAGEMENT LIMITED
and
BEACONHOUSE EDUCATIONAL SERVICES LIMITED
