Exhibit 10.76(a)


 


THIS AGREEMENT is made on 22
December, 2004


 


BETWEEN:


 


(1)                                  SIRVA UK LIMITED a company incorporated under the laws of England and Wales whose
registered office is at Heritage House, 345 Southbury Road, Enfield, Middlesex,
EN1 1UP (SIRVA UK);
and


 


(2)                                  MIDIDATA SPEDITION GmbH a company incorporated in Germany and registered in the Commercial
Register of Langen whose registered office is Ohmstrasse 12, 63225 Langen;


 


(3)                                  ALLIED ARTHUR PIERRE SA a company incorporated in Luxembourg and registered with the
Register of Trade and Companies in Luxembourg, whose registered office is at 112-114,
Rue du Kiem, L-8030 Strassen


 


(each a Seller and together the Sellers);


 


(4)                                  SIRVA WORLDWIDE, INC a company incorporated under the laws of the State of Delaware,
United States, whose registered office is at c/o Corporation Service Company,
2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, U.S.A. (the Sellers’ Guarantor)


 


(5)                                  WINCANTON TRANS EUROPEAN HOLDINGS GmbH a company incorporated under the laws of Germany and whose
registered office is at Antwerpener Strasse 24, 68219 Mannheim (Wincanton GmbH); and


 


(6)                                  WINCANTON TRANS EUROPEAN HOLDINGS BV a company incorporated under the laws of Holland whose registered
office is at Albert Plesmanweg 43g, 3088 GB Rotterdam, Netherlands (Wincanton BV)


 


(7)                                  WINCANTON HOLDINGS LIMITED a company incorporated under the laws of England and Wales whose
registered office is at Cale House, Station Road, Wincanton, Somerset, BA9 9AD
(Wincanton Holdings).


 


(Wincanton Holdings, Wincanton GmbH and
Wincanton BV together the Purchasers
and each a Purchaser).


 


WHEREAS:


 


(A)                              Each of the Sellers is the owner of those of the Shares set out
opposite its name in column 2 of Error! Reference source not found. of Error!
Reference source not found..


 


(B)                                With a view to the sale and purchase of the Target Companies, each
Seller has agreed to sell, and each of the Purchasers has agreed to purchase,
the Shares on the terms and subject to the conditions set out in this
agreement.


 


(C)                                Words and expressions used in this agreement shall have the meanings
set out in Schedule 1 unless the context otherwise requires.


 





















 


(D)                               In consideration of the Purchasers and the Sellers agreeing to the
terms and conditions of this agreement, the Sellers’ Guarantor and Wincanton
Holdings have, respectively, agreed to guarantee the obligations of the Sellers
and the Purchasers on the terms set out in this agreement.


 


IT IS AGREED as follows:


 


1.                                      SALE AND PURCHASE


 


1.1                                 Subject to and in accordance with this agreement:


 


(a)                                  each Seller agrees to sell and transfer and each Purchaser agrees to
purchase the particular Set of Shares for which that Seller and that Purchaser
is identified as the respective Seller or Purchaser in Error! Reference source not
found. of Error! Reference source not found., in each case with effect from Closing, together with all rights
attaching to them at Closing including the right to receive all distributions
and dividends declared, paid or made in respect of the relevant Shares on or
after Closing; and


 


(b)                                 each Seller shall sell the respective Shares free from all
Encumbrances and ownership and risk in those Shares shall (except as otherwise
set out in this agreement) pass to the relevant Purchaser with effect from
Closing.


 


1.2                                 The parties acknowledge that the transfers of the Shares shall be
completed on the basis of the share transfer and other arrangements set out or
referred to in Error!
Reference source not found. of Error! Reference source not
found..


 


2.                                      PRICE


 


2.1                                 The price for each Set of Shares (the Final Share Price for those Shares)
shall be the amount set out opposite that Set of Shares in column 3 of Error! Reference source not
found. of Error! Reference source not found. (being the Debt
Free/Cash Free Price for those Shares):


 


(a)                                  minus the External Debt of the Relevant Target Company;


 


(b)                                 plus the Cash of the Relevant Target Company;


 


(c)                                  plus the amount (if any) by which that Relevant Target Company’s Pro
Rata Percentage of the Aggregate Adjusted Net Book Value exceeds that Relevant
Target Company’s Pro Rata Percentage of €705,000, or minus the amount (if any)
by which that Relevant Target Company’s Pro Rata Percentage of the Aggregate
Adjusted Net Book Value is less than that Relevant Target Company’s Pro Rata
Percentage of €705,000.


 


2.2                                 The Sellers and the Purchasers agree that the Final Share Price for
each Set of Shares shall be calculated after Closing on the basis of the
applicable amounts agreed or determined in accordance with Error! Reference source not
found. (Post-Closing Financial Adjustments) and:


 


2





















 


(a)                                  if the Final Share Price of a Relevant Target Company is greater
than the Initial Share Price of that Relevant Target Company, then the relevant
Purchaser shall pay an amount equal to the difference to the relevant Seller;
or


 


(b)                                 if the Final Share Price of a Relevant Target Company is less than
the Initial Share Price of that Relevant Target Company, then the relevant
Seller shall pay an amount equal to the difference to the relevant Purchaser,


 


in each case
together with an amount equal to interest on such payment at LIBOR for the
period from (but excluding) the Closing Date to (and including) the due date
for payment, calculated on a daily basis. 
Any such payment shall be made within five Business Days of the date on
which the Closing Statement is agreed or determined, in accordance with the
provisions of clause 17.1 or 17.2 of this agreement, as the case may be.


 


2.3                                 The Final Share Price for each Set of Shares (subject to any further
adjustment, if applicable, pursuant to clause 2.5) shall be adopted for
all tax reporting purposes.


 


2.4                                 At Closing, each Purchaser shall pay to the relevant Seller an
amount in Euros equal to the Initial Share  Price for the relevant Set of Shares (the Initial Share Price
for a Set of Shares being the Debt Free/Cash Free Price for that Set of Shares:


 


(a)                                  minus the Estimated External Debt of the Relevant Target Company;
and


 


(b)                                 plus the Estimated Cash of the Relevant Target Company).


 


Such payments shall be made to such bank
accounts as are notified in writing by or on behalf of the Sellers to the
Purchasers no less than 2 Business Days prior to the Closing Date.  The Sellers shall, not less than 5 Business
Days prior to Closing, provide to the Purchasers their good faith estimate of
the Cash and External Debt for each Target Company, together with reasonable
documentary evidence (including bank statements and reconciliations where
relevant) and calculations to support those estimates.  The parties shall promptly discuss those
estimates in good faith and those estimates shall constitute the Estimated Cash
and Estimated External Debt of each Relevant Target Company for the purpose of
this agreement unless the Purchasers can demonstrate that the evidence and
calculations provided do not constitute a reasonable basis for the estimates
provided.  If the parties agree any
different estimates, then those instead shall constitute the Estimated Cash and
Estimated External Debt of each Relevant Target Company for the purpose of this
agreement.


 


2.5                                 If any payment is made in satisfaction of a liability arising under
a Sellers’ Obligation or a Purchaser Obligation, it shall be made on the
following basis:


 


(a)                                  if such payment is specifically referable to any particular Set of
Shares (or to any Target Company), it shall so far as possible adjust the price
paid for the relevant Set of Shares;


 


(b)                                 if such payment is not so specifically referable, it shall adjust: (i) the
price for such Shares as SIRVA UK (for itself and as agent for each other
Seller) and Wincanton Holdings (for itself and as agent for each other
Purchaser) agree to 


 


3





















 


be appropriate in the circumstances; or (ii) (subject
to any agreement under (i)) the price paid for the Shares in North American
(UK) Limited.


 


3.                                      CONDITIONS TO CLOSING


 


3.1                                 Closing shall be conditional on the sale and purchase of the Shares
(to the extent applicable) having been cleared, or deemed to have been cleared
in accordance with applicable regulation, by the German Federal Cartel Office
(the Bundeskartellamt) (BKA); for the
avoidance of doubt, it shall be deemed to have been cleared if the waiting
period of one calendar month from the date on which a complete filing has been
submitted to the BKA has expired without the BKA having informed the notifying
party that it has commenced an investigation of the transaction as described in
section 40(1) of the Act Against Restraints of Competition (Gesetz
gegen Wettbewerbsbeschränkungen)).


 


3.2                                 Each of the Sellers and each of the Purchasers shall notify the
other promptly upon becoming aware that the Condition has been fulfilled or
deemed to be fulfilled.


 


3.3                                 The Purchasers shall on the date of this agreement, or if that is
not reasonably practicable then by no later than the first business day in
Germany following the date of this agreement, submit to the BKA the
notification in the agreed form by fax and by courier.


 


3.4                                 The Purchasers shall have primary responsibility for obtaining the
approval required in order to satisfy the above Condition and shall take all
steps reasonably necessary for that purpose (including, where required, making
appropriate submissions, notifications and filings, in consultation with the Sellers,
as soon as reasonably practicable after becoming aware that they are required)
and, without limitation, the Purchaser shall so far as it is within its power
to do so (taking into account reasonable information and timing constraints as
well as the Sellers’ cooperation and assistance):


 


(a)                                  progress such submissions, notifications and filings with all
diligence;


 


(b)                                 provide all information which is requested or required by the BKA;


 


(c)                                  promptly notify the Sellers (and provide copies or, in the case of
non-written communications, details) of any communications from the BKA
relating to the Proposed Transactions;


 


(d)                                 communicate with the BKA in respect of any of the Proposed
Transactions only after having consulted with the Sellers or their advisers in
advance (and taken into account any reasonable comments and requests of the
Sellers and their advisers) and provide the Sellers (or their agents) with
copies of all such submissions, notifications, filings and other communications
in the form submitted or sent;


 


(e)                                  (without limiting (d) above) provide the Sellers (or their
advisers) with a final draft of all submissions, notifications, filings and
other communications to the BKA at such time as will allow the Sellers (or
their advisers) a reasonable opportunity to provide comments and for the
Purchaser to take account of any 


 


4





















 


reasonable comments of the Sellers (or
their advisers) on such drafts prior to their submission;


 


(f)                                    where permitted by the BKA, allow persons nominated by the Sellers
to attend all meetings (and participate in all telephone or other
conversations) with the BKA and to make oral submissions at such meetings (or
telephone or other conversations); and


 


(g)                                 regularly review with the Sellers the progress of the notifications
or filings to the BKA (including, where necessary, seeking to identify
appropriate commitments to address any antitrust concerns identified by the
BKA) and discussing with the Sellers the scope, timing and tactics of any such
commitments with a view to obtaining clearance from the BKA at the earliest
reasonable opportunity.


 


The Purchasers
shall not make any merger, competition or anti-trust filings with any
Governmental Entity which is not required under this clause 3.4 without
obtaining the prior consent of the Sellers to the making of such application
and the form and content of the relevant application.


 


3.5                                 The Sellers undertake (at their reasonable cost) to provide the
Purchasers and any Governmental Entity with any necessary information,
documents, cooperation and assistance reasonably required for the purpose of
making any submissions, notifications and filings to the BKA or any such other
Governmental Entity.


 


3.6                                 The first Business Day in London on or by which, prior to 4.00 p.m.,
all Conditions have been fulfilled to the satisfaction of the relevant party,
shall be deemed to be the Record
Date.


 


3.7                                 If any of the Conditions has not been fulfilled on or before the
Longstop Date, this agreement (other than the Surviving Provisions) shall
automatically terminate.  In such event,
the parties shall not have any claim under this agreement of any nature
whatsoever against each other or other person (except in respect of any rights
and liabilities which have accrued before termination or in relation to any of
the Surviving Provisions).


 


4.                                      PRE-CLOSING UNDERTAKINGS


 


4.1                                 During
the period from the date of this agreement to Closing, each of the Sellers and
the Purchasers shall perform its respective obligations set out in Error! Reference source not
found..


 


4.2                                 The Sellers shall use all their reasonable endeavours to procure
that no Intra Group Payables or Intra-Group Receivables are outstanding, at
Closing and shall procure that the shares in the capital of SIRVA Netherlands B.V.
are fully paid prior to Closing.


 


5.                                      CLOSING


 


5.1                                 Closing shall take place at the London offices of the Sellers’
solicitors on the last Business Day of the month in which the Record Date falls
(or, if the Record Date 


 


5





















 


is less than
three Business Days before the last Business Day of that month, on the last
Business Day of the following month) (the Closing Date), or such other date as
Wincanton Holdings (for itself and on behalf of each other Purchaser) and SIRVA
UK (for itself and on behalf of each other Seller) agree in writing.


 


5.2                                 At Closing (or such other time after Closing as may be specified in Error! Reference source not
found. of Error! Reference source not found.), each of the Sellers and the Purchasers shall deliver or perform
(or procure that there is delivered or performed) all those documents, items
and actions respectively listed in relation to that party or the members of the
Sellers’ Group or the Purchasers’ Group (as the case may be) in Error! Reference source not
found. of Error! Reference source not found..


 


5.3                                 The Tax Covenant shall come into full force and effect at Closing.


 


6.                                      WARRANTIES, UNDERTAKINGS AND
INDEMNITIES


 


6.1                                 Each Seller respectively warrants to the Purchaser of the applicable
Set of Shares and in relation only to itself, the applicable Set of Shares and
the applicable Target Company, as at the date of this agreement, in the terms
of the Warranties set out in Error! Reference source not found..  The Warranties are given
subject to:


 


(a)                                  any matters fairly disclosed by or under the terms of the Disclosure
Letter and any matters fairly disclosed by or under this agreement, the Hive-Out
Agreement or any other agreement or document referred to in this agreement;


 


(b)                                 the other limitations and qualifications set out in this clause 6
and in Error!
Reference source not found. and


 


(c)                                  the limitations and qualifications set out in the Tax Covenant
insofar as they are expressed to apply to the Tax Warranties.


 


6.2                                 The Purchasers acknowledge and agree that:


 


(a)                                  any Claims shall be subject to the limitations on liabilities and
other provisions set out in Error! Reference source not found., on and subject to the terms of that Schedule;


 


(b)                                 the Warranties are the only warranties or representations of any
kind given by or on behalf of the Sellers or any other member of the Sellers’
Group on which the Purchasers or any other member of the Purchaser Group may
rely in entering into this agreement; and


 


(c)                                  save as otherwise set out in any other Transaction Document, no
other statement, promise or forecast made by or on behalf of the Sellers or any
other member of the Sellers’ Group may form the basis of any claim by the
Purchasers or any other member of the Purchasers’ Group under or in connection
with this agreement or any Transaction Document; without limitation, the
Purchasers acknowledge and agree that no member of the Sellers’ Group makes any
representation or warranty as to the accuracy of any forecasts, estimates,
projections, statements of intent or statements of opinion 


 


6





















 


provided to the Purchasers or their
Affiliates or to its or their advisers on or prior to the date of this
agreement (including those contained in the Information Memorandum and any
documents in the Data Room), for the avoidance of doubt this sub-paragraph is
without prejudice to the Warranties.


 


6.3                                 None of the limitations in this clause 6 or Error! Reference source not
found. shall apply to any Claim which arises (or to
the extent that it is increased) as a consequence of fraud or fraudulent
misrepresentation by any member of the Sellers’ Group.


 


6.4                                 Each Purchaser respectively warrants to the Sellers in relation to
itself as at the date of this agreement in the terms of the warranties set out
in Error!
Reference source not found..


 


6.5                                 If, between the date of this agreement and Closing:


 


(a)                                  the Purchasers become aware that there has been any breach of the
Warranties as given on signing of this agreement or of any other term of this
agreement and that breach is material in the context of the businesses of the
Target Companies and of the Proposed Transaction taken as a whole; or


 


(b)                                 there has been an adverse change in the trading or financial
prospects of any of the Target Companies which is material in the context of
the businesses of the Target Companies and of the Proposed Transaction taken as
a whole,


 


the Purchasers
shall be entitled to rescind this agreement by notice in writing to the
Sellers.


 


For the purpose
of clause 6(b) the following shall be disregarded:


 


(a)                                  any adverse changes affecting capital or foreign exchange markets in
general or adverse changes in general economic conditions in the economies
and/or industries in which the Target Companies operate or by which they are
affected;


 


(b)                                 changes in laws, regulations or accounting practices; or


 


(c)                                  the effects of any action or steps taken pursuant to and in
accordance with this agreement, the Redemption or the Hive-Out Agreement.


 


6.6                                 The rights and remedies of the Purchaser in respect of any breach of
the Warranties or the Tax Covenant shall not be affected by Closing.


 


6.7                                 If any Claim is made, no Seller shall make any claim arising from or
in relation to that Claim, except in the case of fraud, against any of the
Target Companies or any director or employee of any Target Company on whom it
may have relied before agreeing to any terms of this agreement or authorising
any statement in the Disclosure Letter. 
This clause shall not preclude any Seller from claiming against any
other Seller under any right of contribution or indemnity to which it may be
entitled.


 


7





















 


6.8                                 The Sellers shall indemnify and hold harmless the Purchasers against
all losses, costs (including, without limitation expenses reasonably and
properly incurred) claims, liabilities and demands (together Losses) incurred or
suffered by the Purchasers and/or any Target Company in respect of:


 


(a)                                  without prejudice to the provisions of Error! Reference source not
found. to the extent that they apply on their terms
(for the avoidance of doubt, including without limitation being without
prejudice to the continuing application of paragraph 9 of Schedule 3), any
claim by any customer against any of the Target Companies resulting from events
arising prior to Closing relating to damaged or lost goods where that
individual claim is for an amount in excess of €100,000, Provided that no
Seller shall have any liability under this paragraph (a) in respect of any
claim unless and until the Purchasers have complied in full with paragraph Error! Reference source not
found. of Error! Reference source not found. in respect of the relevant claim and, once they have done so, the
Sellers shall only be liable in respect of the applicable Losses to the extent
(and only to the extent) that such Losses are not actually recovered under a
policy of insurance within 6 months of notification of the matter to the
relevant insurance provider;


 


(b)                                 Excluded Liabilities (as defined in the Hive-Out Agreement) to the
extent only that they comprise environmental and/or health and safety
liabilities of North American (UK) Limited;


 


(c)                                  compliance by North American (UK) Limited with its obligations and
undertakings under clauses 3, 11, 6 and 15 of the Hive-Out Agreement and any
claim made by a member of the Sellers’ Group under clause 2.1, 6.1 or 12 of the
Hive-Out Agreement;


 


(d)                                 any failure by Pickfords Limited to comply with its obligations
under the Hive-Out Agreement; and


 


(e)                                  any enforcement action by a relevant authority in relation to a
breach of any Environmental Laws as a result of noise emissions at the Venlo
Property:


 


(i)                  the Sellers shall not be liable for any losses under this paragraph (e) to
the extent that such losses have been increased as a result of noise emissions
at the Venlo Property being greater than prior to the date of this agreement as
identified in the Environmental Report.


 


(ii)               the
Sellers shall not have any liability under this paragraph (e) unless and
until the losses which would be indemnified under this paragraph (e) but
for this sub-paragraph (ii) exceed €25,000; and


 


(iii)            the
Sellers shall have no liability under this paragraph (e) in relation to
any enforcement action taken by a relevant authority as a result of the level
of noise emissions from the Venlo Property being higher than the levels at which
they stood prior to the date of this agreement as identified in the
Environmental Report.


 


8





















 


(for the
purpose of this agreement the indemnities given in clause 6.8(b),(c) and (d) are
together referred to as the Hive-Out Indemnities).


 


7.                                      CONDUCT OF NON-TAX CLAIMS


 


7.1                                 If the Purchasers become aware of any claim or potential claim by a
third party who is a customer of the Target Companies at the relevant time (a customer claim) or a
claim by a third party who is not a customer of the Target Companies at the
relevant time (a non-customer
claim) which might in either case result in a Non-Tax Claim
being made, the Purchasers shall:


 


(a)                                  in the case of any customer claim or non-customer claim, promptly
(and in any event within 21 days of it becoming aware of it) give notice of
such customer claim or non-customer claim to the Sellers and procure that the
Sellers and their representatives are given all reasonable facilities to
investigate it;


 


(b)                                 in the case of a non-customer claim, not make (and procure that each
member of the Purchasers’ Group shall not make) any admission of liability,
agreement or compromise with any person, body or authority in relation to that
non-customer claim without prior written approval of the Sellers (such consent
not to be unreasonably withheld or delayed) and, subject to the Purchasers or
the relevant member of the Purchasers’ Group being indemnified by the Sellers
against all reasonable out of pocket costs and expenses incurred in respect of
that non-customer claim:


 


(i)                  take (and procure that each member of the Purchasers’ Group shall
take) such action as to avoid, resist, dispute, appeal, compromise or defend
such non-customer claim as the Sellers shall reasonably require in writing;


 


(ii)     allow (or, as appropriate,
procure that the relevant member of the Purchasers’ Group shall allow) the
Sellers, if they wish, to take over the conduct of all proceedings and/or
negotiations of whatsoever nature arising in connection with the non-customer
claim (in which event the relevant Seller(s) shall keep the Purchasers
reasonably informed about the status and progress of the matter concerned) and
shall not make (and shall procure that each member of the Sellers’ Group shall
not make) any admission of liability, agreement or compromise with any person,
body or authority in relation to that non-customer claim without first having
consulted with the Purchasers in relation to it and having regard to any
reasonable comments made by any of them, in each case to the extent reasonably
practicable;


 


(iii)    provide (or procure that the
relevant member of the Purchasers’ Group shall provide) such co-operation,
information and assistance as the Sellers may reasonably require in connection
with the preparation of or and conduct of any proceedings and/or negotiations
relating to that non-customer claim.


 


9





















 


7.2                                 If any of the Purchasers makes a Non-Tax Claim against the Sellers
or notifies the Sellers of any customer claim or non-customer claim which might
lead to such a Non-Tax Claim being made, the Purchaser shall:


 


(a)                                  make available to accountants and other representatives appointed by
the Sellers such access to the personnel, records and information of that Target
Company as the Sellers reasonably request in connection with such Non-Tax
Claim, non-customer claim or customer claim; and


 


(b)                                 to the extent reasonably requested by the Sellers, use all
reasonable endeavours to procure that the auditors (both past and then current)
relating to any relevant Target Company make available their audit working
papers in respect of audits of the accounts of that Target Company for any
accounting period relevant to such Claim, non-customer claim or customer claim.


 


7.3                                 Without prejudice to the Purchasers’ general obligation at law to
mitigate any loss or damage which they may suffer in consequence of any breach
of the terms of this agreement or to the provisions of Schedule 3, the
Purchasers shall not, by reason of any breach of the terms of this clause 7, be
precluded from bringing any Non-Tax Claims against the Sellers but no Seller
shall be liable in respect of the relevant Non-Tax Claim to the extent that the
amount of it is increased, or is not reduced, as a result of any such breach.


 


8.                                      NO RIGHTS OF RESCISSION OR
TERMINATION


 


Subject to
clause 6.5, the sole remedy of the Purchasers for any breach of any of the
Warranties or any warranty or representation in any other Transaction Document
by the Sellers or any member of the Sellers’ Group shall be an action for
damages.  The Purchasers shall not be
entitled to rescind or terminate this agreement in any circumstances whatsoever
(whether before or after Closing), other than pursuant to any such rights which
arise in respect of fraudulent misrepresentation or under clause 6.5.


 


9.                                      POST-CLOSING UNDERTAKINGS


 


9.1                                 In relation to Inter-Company Trading Amounts, within 30 days of the
Closing Date:


 


(a)                                  the Purchasers shall procure that any Inter-Company Trading Amount
which is owed at Closing to any member of the Sellers’ Group is paid to the
relevant member of the Sellers’ Group; such payments shall be made in
accordance with clause 17.1; and


 


(b)                                 the Sellers shall procure that any Inter-Company Trading Amount
which is owed at Closing by any member of the Sellers’ Group is paid to the
relevant Target Company; such payments shall be made in accordance with
clause 17.2.


 


10





















 


9.2                                 Following Closing:


 


(a)                                  without prejudice to clause 16.4, the Sellers shall procure that
midiData Spedition GmbH changes its name to a name which does not include the “midiData”
name nor any name that is confusingly similar to it ;


 


(b)                                 the Purchasers shall procure that SIRVA Netherlands BV changes its
name to a name which does not include the “SIRVA” name nor any name that is
confusingly similar to it;


 


(c)                                  the Purchasers shall procure that North American (U.K.) Limited
changes its name to a name which does not include the “North American” name;
and


 


(d)                                 to the extent that such information has not already been provided by
the Target Companies prior to Closing, the Purchasers shall procure that the
Target Companies provide month end and year end reports and financial
information, in a form consistent with the accounting principles, policies,
treatments, practices and categorisations used in the reports submitted in
respect of the relevant Target Company for the purpose of the preparation of
the consolidated financial statements of SIRVA, Inc. and its affiliates
for the year ended 31 December 2003, for the preparation of the
consolidated accounts of SIRVA, Inc for the periods in respect of which such
information has yet to be provided prior to Closing (the Sellers undertake to
indemnify the Purchasers Group against any reasonable Costs suffered or
incurred by the Purchasers’ Group in relation to the provision of such
information after Closing).


 


10.                               GUARANTEES AND OTHER THIRD
PARTY ASSURANCES


 


10.1                           The Purchasers shall, and shall procure that the Purchasers’ Group
shall, use all reasonable endeavours (short of actual payment of any monies or
the substitution of the guarantee of any person other than a member of the
Purchasers’ Group) to procure that at, or as soon as reasonably practicable
after, Closing each member of the Sellers’ Group is released in full from all
Third Party Assurances listed in Error! Reference source not found. given by such company in respect of obligations of any Target
Company.  The Sellers shall procure that
all members of the Sellers’ Group provide all assistance reasonably requested
by the Purchasers in respect of such release.


 


10.2                           The Sellers shall at Closing, or as soon as practicable after
becoming aware of the relevant matter (whichever is later), procure the release
of the Target Companies from any guarantee, indemnity, counter-indemnity or
letter of comfort of any nature whatsoever given to a third party by a Target
Company in respect of any obligation of a member of the Sellers’ Group (if any)
and pending such release the Sellers undertake with the Purchasers (each for
themselves and on behalf of each of the Target Companies) to indemnify the
Purchasers and the Target Companies against any and all costs arising after
Closing under or by reason of that guarantee, indemnity, counter-indemnity
and/or letter of comfort (whether as a result of any breach by a member of the
Sellers’ Group after Closing of its obligations or otherwise).


 


11.                               INSURANCE


 


11.1                           Subject to the remainder of this clause 11, upon Closing, all
insurance cover for the Target Companies themselves provided in relation to
North American (UK) 


 


11





















 


Limited and
its employees, assets and operations shall cease (and the Purchasers
acknowledge that the Sellers shall be entitled to make arrangements with the
relevant insurer(s) accordingly) and neither North American (UK) Limited nor
any member of the Purchasers’ Group shall notify or pursue any claims under any
such cover after Closing.


 


11.2                           Any claims already notified to the relevant insurer by or on behalf
of North American (UK) Limited in accordance with the terms of the relevant
policy prior to Closing may be pursued after Closing on the terms of this
clause 11.  North American (UK) Limited
shall also be entitled, not later than two years after Closing (or at any later
date if the Sellers have consented in writing to such specific notification),
to notify claims in relation to insured events arising before Closing to the
relevant insurer in accordance with the terms of the applicable policy and any
such claim may then be pursued.


 


11.3                           At Closing, the Purchasers undertake to have obtained adequate
insurance coverage for the employees, assets and operations of North American
(UK) Limited for risks that would normally be insured against by a reasonable
person carrying on a business which is the same or equivalent to the business
carried on by that entity as of the date of this agreement, in the same
locations, having regard to the provisions of this clause 11 where and to the
extent applicable.


 


11.4                           Subject to clause 11.5, the Sellers and the Purchasers agree that
any claims which are allowed to be pursued under clause 11.2 in respect of
North American (UK) Limited shall be administered and collected by the Sellers’
claims administrators on behalf of North American (UK) Limited.  The Purchasers undertake to the Sellers to
indemnify the Sellers’ Group against any reasonable Costs (including, in
respect of management time, only direct costs of time reasonably provided by
senior management (defined as director level and above) of the Sellers or their
Affiliates, properly invoiced) and any tax on receipt of the proceeds suffered
or incurred by the Sellers’ Group in relation to any such claims.  The Sellers agree to progress such claims
with reasonable diligence and in accordance with the reasonable instructions of
the Purchasers and to keep the Purchasers informed (as soon as reasonably
practicable after receiving the information concerned) of all relevant
information in relation to such claims. 
The Purchasers shall co-operate with the Sellers to assist the Sellers
as they may reasonably request in connection with any such claims.  The Purchasers shall be entitled to be paid
any proceeds actually received under the relevant insurance policies (after
deducting any sums, in respect of which the Sellers’ Group are required to be
indemnified under this clause to the extent not previously reimbursed).


 


11.5                           If the Sellers fail to comply with their obligations under clause
11.4 in respect of any particular insurance claim, then the Purchasers shall be
entitled to take conduct of such claim and the provisions of clause 11.4 shall
cease to apply in respect of it (save that the Seller shall continue to be
entitled to indemnification in respect of that claim under the terms of clause
11.4 in respect of any action taken or Losses incurred in accordance with
clause 11.4.


 


11.6                           For a period of seven years following Closing, the Purchasers shall
not (and shall procure that North American (UK) Limited and its successors do
not) dispose of 


 


12





















 


or destroy any
information relating to the relevant insurance policies at, claims and matters
giving rise to the claims and upon reasonable request of the Sellers allow them
full access to (and the right, to take copies of) such insurance information.


 


12.                               RETIREMENT BENEFITS


 


Interim Period


 


12.1                           Subject to the agreement of the trustees of the DB Scheme and the
EPP (as appropriate) and the approval of the Inland Revenue and any other
relevant regulatory agency, the Sellers undertake to use reasonable endeavours
to procure that the trustees of the DB Scheme and the EPP (as appropriate)
will, and the Purchasers undertake to assist the Sellers where reasonably
necessary, to do, by no later than the end of the Interim Period, all things
necessary in accordance with the governing documentation of each of the DB
Scheme and the EPP, including at the Sellers’ own expense (including the
reasonably incurred fees or expenses of the Purchaser or its advisers) the
completion and execution of all necessary documents and notification of the
Inland Revenue and any other relevant regulatory agency, to arrange for the
completion of the substitution of North American (UK) Limited by the New Principal
Employer as principal employer in relation to each of the DB Scheme and the EPP
and in any event to arrange for the following to be completed by no later then
the end of the Interim Period:


 


(a)                                  the execution of a Deed of Substitution, one each in respect of each
of the DB Scheme and the EPP, and


 


(b)                                 the notification by the Sellers of the substitution of North
American Van Lines (UK) Limited by the New Principal Employer as principal
employer in respect of each of the DB Scheme and the EPP to the Inland Revenue
and any other relevant regulatory authority.


 


12.2                           The Sellers and the Purchasers agree that the Deed of Substitution
in relation to the DB Scheme will include terms providing to the following
effect (all with effect on and from Completion):


 


(a)                                  the New Principal Employer will agree with the trustees of the DB
Scheme to assume the obligations of North American (UK) Limited as principal
employer of the DB Scheme, and North American (UK) Limited will cease to be the
principal employer of the DB Scheme with effect on and from that date;


 


(b)                                 all rights, powers and duties vested in North American (UK) Limited
as principal employer of the DB Scheme shall be transferred to the New
Principal Employer, which will assume responsibility for the future exercise
and for all liability arising out of the past exercise of those rights powers
and duties, and North American Van Lines (UK) Limited shall have no interest
obligation or liability in respect of those rights powers and duties and their
past and future exercise;


 


(c)                                  North American (UK) Limited will irrevocably agree with the New
Principal Employer that the New Principal Employer shall have the benefit of
all its rights, powers, discretions and benefits under or in connection with
the DB 


 


13





















 


Scheme. 
Without prejudice to the generality of the foregoing, North American
(UK) Limited will irrevocably agree with the New Principal Employer that, in
connection with the DB Scheme, it will:


 


(i)                  exercise no right, power or discretion conferred on it under or in
connection with the DB Scheme or its trustees (including in particular any
power of amendment or to change the trustees) without the prior written consent
of the New Principal Employer, such consent not to be unreasonably withheld;


 


(ii)               exercise
each right power or discretion conferred on it under or in connection with the
DB Scheme or its trustee (including in particular any power of amendment or to
change the trustees) as directed from time to time upon receipt of reasonable
written notice by the New Principal Employer; and


 


(iii)            from
time to time execute all such deeds, documents, agreements, consents or
approvals for the purpose of complying with its obligations under
sub-paragraphs (a) or (b) above as may be reasonably considered
necessary or desirable by the New Principal Employer;


 


(d)                                 North American (UK) Limited will irrevocably appoint the New
Principal Employer as its attorney to execute (in the name of North American
(UK) Limited or otherwise) from time to time any of the deeds, documents,
agreements, consents or approvals specified in clause 12.2(c) above;


 


(e)                                  North American (UK) Limited will irrevocably agree with the New
Principal Employer that:


 


(i)                  it will as soon as reasonably possible pass to the New Principal
Employer all information under or in connection with or relating to the DB
Scheme that it receives;


 


(ii)               it
will from time to time provide the New Principal Employer with all information
within its power or control relating to the DB Scheme that the New Principal
Employer may reasonably request;


 


(iii)            it
will treat all matters relating to the DB Scheme as confidential, unless it is
required to disclose any matters by law; and


 


(iv)           it
will not at any time in any way promote, support or assist any employee or
ex-employee of any of the Target Companies who is or has been a member of the
DB Scheme in connection with any challenge to the Deeds of Substitution
(whether with a view to having its terms amended or set aside or otherwise);


 


(f)                                    the New Principal Employer may exercise the authorities and
discretions conferred on it under or in connection with the DB Scheme (whether
by the Deed of Substitution or otherwise) in its absolute unfettered discretion
and in its own interests; and


 


14





















 


(g)                                 North American (UK) Limited will irrevocably assign to the New
Principal Employer both (a) the benefit of any payment that it may receive
from the trustees of the DB Scheme and (b) any other advantage of a financial
nature that it may derive under or in connection with the DB Scheme.


 


12.3                           The Sellers and the Purchasers agree that if the Deed of
Substitution in respect of the DB Scheme is not agreed by the DB Scheme
trustees or the Inland Revenue (or is otherwise found to be invalid), the New
Principal Employer and North American (UK) Limited shall promptly execute a
deed that provides to the effect described in sub-clauses 12.2(c)-(g) above,
with effect on and from Completion. 
Notwithstanding any of the provisions of this clause 12, the following
shall apply:


 


(a)                                  the Sellers will use their best endeavours, and the Sellers
undertake to use their best endeavours to procure that the trustees of the DB
Scheme will undertake, and the Purchasers undertake to assist the Sellers where
reasonably necessary, to complete the winding up of the DB Scheme as soon as
reasonably practicable after Completion; and


 


(b)                                 the Sellers will use their best endeavours to ensure that no action
is taken at any time by any of the Sellers or as far as possible by any of the
trustees of the DB Scheme or any of the trustees of the EPP which would or
might have the effect of imposing any new, additional or increased liability
upon any of the Purchasers.


 


13.                               DB SCHEME LIABILITIES


 


The Sellers
undertake to the Purchasers for the benefit of themselves and as trustee and
agent for the Target Companies (the Indemnified Persons) to indemnify the
Indemnified Persons, against all liabilities, losses, demands, payments, costs
and expenses (including without limitation all reasonable legal and other
professional costs) (the DB Scheme Liabilities) incurred, suffered or payable
by the Indemnified Persons in connection (either directly or indirectly) with
the DB Scheme including without limitation in connection with each of the
following in relation to it:


 


(a)                                  Any liability to make any contribution or payment to or in respect
of the DB Scheme including without limitation any such contribution or payment
arising under or in connection with any of the following:


 


(i)                  section 75 of the Pensions Act 1995 or any liability of any of
the Indemnified Persons (or any other person or body in connection with or an
associate of the Indemnified Persons) arising from the application of the
provisions of the Pensions Act 2004 (including without limitation sections 38
to 51 inclusive) when they are enacted, and/or any other applicable legislation
coming into force after Completion and whether amended consolidated or
re-enacted or on any other basis and whether before or after the date of
Completion; and


 


(ii)               any
document related to the DB Scheme including without limitation the DB Scheme’s
definitive trust deed and rules dated 1 July 1991 and any subsequent
amendments;


 


15





















 


(b)                                 The winding up of the DB Scheme;


 


(c)                                  Any breaches of regulatory compliance or administration of the DB
Scheme or any failure to administer the DB Scheme in accordance with all
applicable legislation including without limitation the provisions of the Pensions
Act 1995 and the Pension Schemes Act 1993;


 


(d)                                 Any claim by any employee or ex-employee of the Target Companies (or
any dependant of such an employee) in relation to or in connection with the DB
Scheme including without limitation any claim arising out of the failure of any
of the Target Companies to notify any person of his right to join, or apply to
join the DB Scheme or arising out of the exclusion of any person from
membership of the DB Scheme or from any of the benefits under it in contravention
of Article 141 of the Treaty of Rome, section 62 Pensions Act 1995,
the Part-time Workers (Prevention of Less Favourable Treatment) Regulations
2000 (SI 1551/2000) or the Fixed Term Employees (Prevention of Less Favourable
Treatment) Regulations 2002 (SI 2002/2034) or other similar Applicable Law; and


 


(e)                                  The equalisation of benefits as between men and women in accordance
with the decision in Barber v Guardian Royal Exchange including without
limitation in relation to guaranteed minimum pensions.


 


14.                               STAKEHOLDER


 


The Sellers
undertake to the Purchasers for the benefit of themselves and as trustee and
agent for the Target Companies (the Indemnified Persons) to indemnify the
Indemnified Persons, against all actions, proceedings, claims, demands and
costs (including without limitation any fine imposed by the Occupational
Pensions Regulatory Authority (“OPRA”) and any costs incurred by the
Indemnified Persons arising from the designation by and facilitation of access
to a stakeholder pension scheme by any of the Target Companies after
Completion) directly or indirectly from any failure by the Sellers and/or any
of the Target Companies to comply with the Target Companies’ obligations
relating to stakeholder pension schemes under the Welfare Reform and Pensions Act
1999 the Personal Pension Schemes (Payments by Employers) Regulations 2000 (SI
2000/2692) and the Financial Services and Markets Act 2000.


 


15.                               TAX


 


15.1                           The Sellers and the Purchasers shall, with effect from Closing,
comply with the provisions of Error! Reference source not found..


 


15.2                           All sums payable under this agreement shall be paid free and clear
of all deductions or withholdings whatsoever save only as provided in this
agreement or as may be required by law.


 


15.3                           All sums payable under this agreement are (unless expressly stated
otherwise) exclusive of any applicable VAT.


 


16





















 


16.                               PROTECTIVE COVENANTS
POST-CLOSING


 


16.1                           The Sellers undertake with the Purchasers that the Sellers shall not
(and shall procure that each other member of the Sellers’ Group shall not):


 


(a)                                  carry on or be engaged in any Competing Business in the Protected
Territories during a period of three years after the Closing Date;


 


(b)                                 except in the circumstances referred to in clause 19.3, disclose to
any other person any confidential information to the extent that it relates to
the business or affairs of any Target Company or use such information to the
detriment of the business or affairs of any Target Company.


 


For this
purpose:


 


(c)                                  Competing Business means a business which competes with the Business, as such Business
is carried on by any Target Company at the Closing Date;


 


(d)                                 Protected Territories means the United Kingdom, Germany and the Netherlands and any other
territory in which any Target Company has provided services, either directly or
through sub-contractors, at any time during the 12 months preceding the date of
this agreement or between the date of this agreement and Closing.


 


16.2                           Nothing in this clause 16 shall prevent, after Closing, any member
of the Sellers’ Group from:


 


(a)                                  owning for investment purposes securities in any company dealt in on
a stock exchange national market or inter-dealer quotation system and not
exceeding 5 per cent. in nominal value of the securities of that class in such
company; or


 


(b)                                 acquiring any one or more companies and/or businesses (taken
together, the Acquired
Business) and subsequently carrying on or being engaged in the
Acquired Business where its activities include carrying on or being engaged in
a business which is a Competing Business (the Acquired Competing Business), provided
that the Acquired Competing Business represents not more than 5 per cent.
of the Acquired Business as a whole, or, if lower, €20,000,000 (measured in
terms of turnover in its last accounting year) or such other amount as is
agreed by SIRVA UK and Wincanton Holdings in writing; or


 


(c)                                  performing its obligations under this agreement or the Hive-out
Agreement and/or under any other
agreement which it may enter into with a member of the Purchasers’ Group.


 


For the
purposes of clause 16.2, transactions undertaken by different members of the
Sellers’ Group shall be aggregated and treated as undertaken by a single
member.


 


16.3                           The Sellers undertake to the Purchasers that the Sellers shall not
(and shall procure that each other member of the Sellers’ Group shall not)
within a period of 3 years after the Closing Date, actively solicit or
endeavour to entice away from any Target Company or any member of the
Purchasers’ Group any person who was employed by any Target Company in an
executive or senior managerial capacity on 


 


17





















 


the Closing
Date.  This clause 16.3 shall not prevent
any member of the Sellers’ Group from employing any person who:


 


(a)                                  responds to a bona fide public advertisement for the relevant
vacancy placed by or on behalf of the relevant member of the Sellers’ Group; or


 


(b)                                 is made redundant or whose employment is terminated after Closing by
any member of the Purchasers’ Group.


 


16.4                           The Sellers undertake to the Purchasers that they (and each other
member of the Seller’s Group and each of the Guarantor’s Affiliates) shall,
following Closing cease to use the “midiData” name or any confusingly similar
variation or representation thereof.


 


16.5                           Each undertaking contained in this clause 16 shall be construed as a
separate and independent undertaking and, while the restrictions set out in
this clause are considered by the parties to be reasonable in all the
circumstances, it is agreed that if any one or more of such restrictions shall
be adjudged (either taken by itself or together) to go beyond what is
reasonable in all the circumstances for the protection of the Purchasers’
legitimate interests but would be adjudged reasonable if any particular
restriction or restrictions were deleted or any part or parts of the wording
thereof were deleted, restricted or limited in any particular manner (including
without limitation any reduction in their duration or geographical scope) then
the said restrictions shall apply with such deletions, restrictions or
limitation as the case may be.


 


16.6                           Each Seller agrees that, having regard to the facts and matters set
out above and having taken professional advice, the restrictions contained in
this clause 16 are reasonable and necessary for the protection of the
legitimate business interests of the Purchasers.


 


17.                               PAYMENTS


 


17.1                           Any payment to be made pursuant to this agreement by the Purchasers
or any member of the Purchasers’ Group shall be made to the Sellers’ Bank
Account (or such other account as is nominated by the Sellers in writing to the
Purchasers) in immediately available funds by electronic transfer in the
relevant currency on the due date for payment, or such other account as the
Sellers shall nominate in writing.  SIRVA
UK agrees to pay each member of the Sellers’ Group that part of each payment to
which it is entitled.  Receipt of such
sums in the relevant bank account shall be an effective discharge of the
obligation of the Purchasers or any member of the Purchasers’ Group to pay such
sums to the Sellers or a member of the Sellers’ Group, as the case may be, and
neither the Purchasers nor any member of the Purchasers’ Group shall be
concerned to see to the application or be answerable for loss or misapplication
of such amount.


 


17.2                           Any payment to be made pursuant to this agreement by the Sellers or
any member of the relevant Sellers’ Group shall be made to the Purchasers’ Bank
Account (or such other account as is nominated by the Purchasers in writing to
the Sellers) in immediately available funds by electronic transfer in the
relevant currency on the due date for payment, or such other account as the
Purchasers shall nominate in writing.  


 


18





















 


Wincanton
Holdings agrees to pay each member of the Purchasers’ Group that part of each
payment to which it is entitled.  Receipt
of such sums in the relevant bank account shall be an effective discharge of
the obligation of the Sellers or any member of the relevant Sellers’ Group to
pay such sums to the Purchasers or a member of the Purchasers’ Group, as the
case may be, and neither the Sellers nor any member of the relevant Sellers’
Group shall be concerned to see to the application or be answerable for loss or
misapplication of such amount.


 


17.3                           If any sum due for payment under or in accordance with this
agreement is not paid on the due date (the Due Date), the person in default shall pay
Default Interest on that sum (the Due Sum) from but excluding the Due Date to
and including the date of actual payment calculated on a daily basis.


 


18.                               ANNOUNCEMENTS


 


18.1                           After the Closing Date, neither the Sellers nor the Purchasers shall
make or issue any public announcement, circular or disclosure in connection
with the existence or the subject matter of this agreement or any of the other
Transaction Documents (and the Sellers and the Purchasers shall procure that
none of their Affiliates make or issue any such announcement, circular or
disclosure) in each case without the prior written approval of the other (such
approval not to be unreasonably withheld or delayed) provided that the Sellers
and the Purchasers shall be permitted to include references to the existence or
the subject matter of this agreement in any filings which or financial
statements they are required to make or file after a period of one year from
the date of this agreement.


 


18.2                           The restriction in clause 18.1 shall not apply to the extent that
the announcement or disclosure is required by law or by any stock exchange or
governmental or other regulatory or supervisory body or authority of competent
jurisdiction to whose rules the party making the announcement or
disclosure is subject, whether or not having the force of law.  Where any announcement or disclosure is made
in reliance on this exception, the party making the announcement or disclosure
shall use its reasonable endeavours to consult with the other party in advance
as to the form, content and timing of any such announcement or disclosure.


 


19.                               CONFIDENTIALITY


 


19.1                           For the purposes of this clause 19:


 


(a)                                  Confidential Information means:


 


(i)                  (in relation to the obligations of the Purchasers under this clause
19) any information received or held by the Purchasers (or any of their
Representatives) where such information relates to the Sellers’ Group or, prior
to Closing, any of the Target Companies; or


 


(ii)               (in
relation to the obligations of the Sellers under this clause 19) any
information received or held by the Sellers (or any of their Representatives)
where such information relates to the Purchasers’ Group or, following Closing,
any of the Target Companies; and


 


19





















 


(iii)            information
relating to the provisions and subject matter of, and negotiations leading to,
this agreement and the other Transaction Documents;


 


and includes
not only written information but information transferred or obtained orally,
visually, electronically or by any other means;


 


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


 


19.2                           Each of the Sellers and the Purchasers undertakes that it shall (and
shall procure that each of its Representatives and their respective Guarantor’s
Representatives shall) maintain Confidential Information in confidence and not disclose
that Confidential Information to any person except as permitted by this
clause 19 or with the prior written approval of the other party.


 


19.3                           The confidentiality obligation under clause 19.2 shall not
apply if and to the extent that the Sellers or the Purchasers (as the case may
be) can demonstrate that:


 


(a)                                  such disclosure is required by law or regulation or by any stock
exchange or any regulatory, governmental or antitrust body (including, for the
avoidance of doubt, any tax authority) having applicable jurisdiction (provided
that, in such circumstances, the disclosing party shall first inform the
Purchaser or the Sellers (as applicable) of its intention to disclose such
information and take into account the reasonable comments of the other party to
the extent that they are made within the necessary timeframe);


 


(b)                                 save in respect of Confidential Information to the extent that it
relates to the Target Companies or their businesses and is in the possession of
the Sellers or their Representatives prior to Closing, the Confidential
Information concerned was lawfully in the relevant party’s possession or the
possession of any of its Representatives (in either case as evidenced by
written records) and not subject to any obligation of secrecy on its part prior
to its being received or held as described in clause 19.2;


 


(c)                                  the Confidential Information concerned has come into the public
domain other than through its fault (or that of its Representatives) or the
fault of any person to whom such Confidential Information has been disclosed in
accordance with this clause 19.3; or


 


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


 


19.4                           Each of the Sellers and the Purchasers undertakes that it (and its
Affiliates) shall only disclose Confidential Information to Representatives if
it is reasonably required for the purposes of exercising the rights or
performing the obligations under this agreement or the other Transaction
Documents and only if the Representatives are informed of the confidential
nature of the Confidential Information.


 


20





















 


19.5                           If this agreement is terminated in accordance with its terms, the
Purchasers shall as soon as practicable on request by the Sellers:


 


(a)                                  return to the Sellers all written documents and other materials
relating to the Sellers or any Target Company or the subject matter of this
agreement (including any Confidential Information) which have been provided to
each of the Purchasers (or its Representatives) by the Sellers (or their
Representatives) without keeping any copies thereof;


 


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


 


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


 


19.6                           The provisions of this clause 19 shall survive termination
and/or Closing of this agreement.


 


20.                               ASSIGNMENT


 


20.1                           No party shall (nor shall it purport to) assign, transfer, charge or
otherwise deal with all or any of its rights under this agreement nor grant,
declare, create or dispose of any right or interest in it without the prior
written consent of the other party.  Any
purported assignment in contravention of this clause 20 shall be void.


 


21.                               FURTHER ASSURANCES


 


21.1                           Each of the Sellers and the Purchasers agrees, for a period of
6 months from the Closing Date, to execute (or procure the execution of)
such further documents as may be required by law or as may be necessary to
implement and give effect to this agreement.


 


21.2                           In the absence of specific agreement to the contrary, each party
shall be responsible for its own costs and expenses (including, for the avoidance
of doubt, those of its Affiliates) incurred in giving effect to the provisions
of clause 21.1.


 


22.                               COSTS


 


22.1                           Subject to clause 22.2 and except as otherwise provided in this
agreement, each of the Sellers and the Purchasers shall be responsible for its
own costs, charges and other expenses (including those of their Affiliates)
incurred in connection with the negotiation, preparation, entering into and
completion of this agreement and the other Transaction Documents.


 


22.2                           The Purchasers or their Affiliates shall bear:


 


(a)                                  all stamp, notarisation fees or other documentary or transaction
duties, stamp duty reserve tax and any other transfer taxes arising as a result
of this agreement or of any of the other Transaction Documents or of their
respective implementation; and


 


21





















 


(b)                                 all
fees and expenses in connection with any submissions, notifications or filings
made in relation to the fulfilment of the Conditions.


 


23.                               NOTICES


 


23.1                           Any notice
or other communication to be given by any party to any other party under, or in
connection with, this agreement shall be in writing and signed by or on behalf
of the party giving it.  It shall be
served by sending it by fax to the number set out in clause 23.2, or
delivering it by hand, or sending it by pre-paid recorded delivery, special
delivery or registered post, to the address set out in clause 23.2 and in
each case marked for the attention of the relevant party set out in
clause 23.2 (or as otherwise notified from time to time in accordance with
the provisions of this clause 23). 
Any notice so served by hand, fax or post shall be deemed to have been
duly given:


 


(a)                                  in
the case of delivery by hand, when delivered;


 


(b)                                 in
the case of fax, at the time of transmission;


 


(c)                                  in
the case of prepaid recorded delivery, special delivery or registered post, at
10am on the second Business Day following the date of posting


 


provided that
in each case where delivery by hand or by fax occurs after 6pm on a Business
Day or at any time on a day which is not a Business Day, service shall be
deemed to occur at 9am on the next following Business Day.


 


References to
time in this clause are to local time at the address to which the relevant
notice is sent.


 


23.2                           The
addresses and fax numbers of the parties for the purpose of clause 23.1
are as follows:


 


Sellers


 


	
  Address:

  	
   

  	
  c/o SIRVA UK
  LIMITED

  
	
   

  	
   

  	
  Heritage
  House

  
	
   

  	
   

  	
  345
  Southbury Road

  
	
   

  	
   

  	
  Enfield

  
	
   

  	
   

  	
  Middlesex

  
	
   

  	
   

  	
  EN1 1UP

  
	
   

  	
   

  	
  United
  Kingdom

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +44-208-219-8005

  
	
   

  	
   

  	
   

  
	
  For the
  attention of:

  	
   

  	
  Michael
  Kingston

  
	
   

  	
   

  	
   

  
	
  With
  a copy to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  c/o SIRVA, Worldwide
  Inc.

  
	
   

  	
   

  	
  700 Oakmont
  Drive

  
	
   

  	
   

  	
  Westmont

  
	
   

  	
   

  	
  Illinois
  60559

  
	
   

  	
   

  	
  USA

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +1630-468-4761

  
	
   

  	
   

  	
   

  
	
  For the
  attention of:

  	
   

  	
  General
  Counsel

  



 


22





















 


	
  Purchaser

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  c/o
  Wincanton Holdings Limited

  
	
   

  	
   

  	
  Cale House

  
	
   

  	
   

  	
  Station Road

  
	
   

  	
   

  	
  Wincanton

  
	
   

  	
   

  	
  Somerset
  BA99 9AD

  
	
   

  	
   

  	
  United
  Kingdom

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
  +44 1963
  828406

  
	
   

  	
   

  	
   

  
	
  For the
  attention of:

  	
   

  	
  Company
  Secretary

  



 


23.3                           A party may
notify any other party to this agreement of a change to its name, relevant
addressee, address or fax number for the purposes of this clause 23, provided
that such notice shall only be effective on:


 


(a)                                  the
date specified in the notice as the date on which the change is to take place;
or


 


(b)                                 if no
date is specified or the date specified is less than five Business Days after
the date on which notice is given, the date which is the fifth Business Day
after notice of any change has been given.


 


23.4                           In proving
such service it shall be sufficient to prove that the envelope containing such
notice was properly addressed and delivered either to the address shown thereon
or into the custody of the postal authorities as a pre-paid recorded delivery,
special delivery or registered post letter, or that the notice was transmitted
by fax to the fax number of the relevant party set out in this clause 23 (or as
otherwise notified under it).


 


23.5                           The parties
agree that the provisions of this clause 23 shall not apply to the service
of any writ, summons, order, judgment or other document relating to or in
connection with any arbitration proceedings.


 


23.6                           All
notices, demands, requests, statements, certificates or other communications
under this agreement shall be in English unless otherwise agreed in writing.


 


24.                               CONFLICT WITH OTHER AGREEMENTS


 


24.1                           In the
event of any conflict between this agreement and any other agreement relating
to the Proposed Transactions or any document delivered pursuant to Error! Reference source not
found., this agreement shall prevail (as between
the parties to 


 


23





















 


this agreement
and as between any other members of the Sellers’ Group and the Purchasers’
Group) unless: (i) such other agreement or document expressly states that
it (or any part of it) overrides this agreement in any respect and the Sellers
and the Purchaser 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; or (ii) the contrary is expressly provided
elsewhere in this agreement.


 


25.                               ENTIRE AGREEMENT


 


25.1                           This
agreement and the other Transaction Documents together
set out the entire agreement and understanding between the parties in respect
of the sale and purchase of the Shares. 
This agreement supersedes all prior agreements, understandings or
arrangements (whether oral or written) relating to the sale and purchase of the
Shares which shall cease to have any further force or effect.  It is agreed that:


 


(a)                                  no
party has entered into this agreement or any other Transaction Document in
reliance upon, nor shall any party have any claim or remedy in respect of, any
statement, representation, warranty, undertaking, assurance, collateral
contract or other provision made by or on behalf of any other party (or any of
its Representatives) which is not expressly set out in this agreement or any
other Transaction Document;


 


(b)                                 any
terms or conditions which may be implied by law in any jurisdiction in relation
to the Proposed Transactions shall be excluded or, if incapable of exclusion,
any rights or remedies in relation to them shall be irrevocably waived;


 


(c)                                  the
only right or remedy of a party in relation to any statement, representation,
warranty, undertaking, assurance, collateral contract or other provision set out
in this agreement or any other Transaction Document shall be for breach of this
agreement or the relevant Transaction Document to the exclusion of all other
rights and remedies; and


 


(d)                                 except
for any liability which a party (or any of its Representatives) has under or in
respect of any breach of this agreement or any of the other Transaction
Documents, no party (or any of its Representatives) shall owe any duty of care or have any liability in tort or
otherwise to any other party (or its respective Representatives) in respect of,
arising out of, or in any way relating to the Proposed Transactions;


 


provided that
this clause shall not exclude any liability for (or remedy in respect of)
fraudulent misrepresentation.


 


The agreements
and undertakings in this clause 25 are given by each party on its own behalf
and as agent for each of its Representatives. 
Each party acknowledges that the other party gives such agreements and
undertakings as agent with the full knowledge and authority of each of its
Representatives.


 


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26.                               WAIVERS, RIGHTS AND REMEDIES


 


26.1                           Except as
otherwise provided in this agreement, no failure or delay by any party in
exercising any right or remedy provided by law or under or pursuant to this
agreement or any of the Transaction Documents shall impair such right or remedy
or operate or be construed as a waiver or variation of it or preclude its
exercise at any subsequent time and no single or partial exercise of any such
right or remedy shall preclude any further exercise of it or the exercise of
any other remedy.


 


26.2                           Each party
to this agreement may, in whole or in part, release, compound, compromise,
waive or postpone, in its absolute discretion, any liability owed to it or
right granted to it in this agreement by any other party or parties without in
any way prejudicing or affecting its rights in respect of that or any other
liability or right to the extent in each case not so released, compounded,
compromised, waived or postponed.


 


26.3                           The rights
and remedies of the Purchasers under this agreement shall not be affected, and
the Sellers’ liabilities under this agreement shall not, subject to compliance
with the notice requirements in Error! Reference source not found. of this agreement, be released, discharged or impaired, by the
expiry of any limitation period prescribed by law.


 


27.                               GENERAL


 


27.1                           This
agreement may be executed in any number of counterparts and by the parties to
it on separate counterparts, each of which is an original but all of which
taken together shall constitute one and the same instrument.


 


27.2                           No
amendment, variation or waiver of this agreement (or of any of the other
Transaction Documents) shall be valid unless it is in writing and duly executed
by or on behalf of all of the parties to it. 
The expression variation
shall include any variation, supplement, deletion or replacement
howsoever effected.  Unless expressly
agreed, no variation shall constitute a general waiver of any provision of this
agreement, nor shall it affect any rights, obligations or liabilities under or
pursuant to this agreement which have already accrued up to the date of
variation, and the rights and obligations under or pursuant to this agreement
shall remain in full force and effect except and only to the extent that they
are so varied.


 


27.3                           Each of the
provisions of this agreement and the other Transaction Documents is
severable.  If any such provision is held
to be or becomes illegal, invalid or unenforceable in any respect under the law
of any jurisdiction:


 


(a)                                  so
far as it is illegal, invalid or unenforceable, it shall be given no effect and
shall be deemed not to be included in this agreement or the relevant
Transaction Document but it shall not affect or impair the legality, validity
or enforceability in that jurisdiction of any other provisions of this
agreement or the relevant Transaction Document (or of the provisions of this
agreement or other Transaction Document in any other jurisdiction); and


 


(b)                                 the
parties shall use all reasonable endeavours to replace it with a valid and
enforceable substitute provision or provisions satisfactory to any relevant
competent authority but differing from the replaced provision as little as 


 


25





















 


possible and the effect of which is as
close to the intended effect of the illegal, invalid or unenforceable
provision.


 


27.4                           A person
who is not a party to this agreement shall have no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce any of its terms.


 


27.5                           To the
extent that an obligation in this agreement is expressed as an obligation of an
identified Seller or Purchaser or obligation of each of the Sellers or, as the
case may be, each of the Purchasers the liability of each Seller or Purchaser,
as the case may be in respect of that obligation shall be several and each
individual Seller or Purchaser shall only be liable in respect of its own
breaches of it.  To the extent that any
obligation in this agreement is expressed as an obligation of the Sellers or,
as the case may be, of the Purchasers, the liability of Sellers or the
Purchasers in respect of that obligation shall be joint and several.


 


27.6                           The Sellers
hereby acknowledge and agree that SIRVA UK is authorised to agree to any matters
referred to in this agreement on behalf of all of the Sellers, to perform all
such acts as are required, authorised or contemplated by this agreement to be
performed by the Sellers and to receive on behalf of the Sellers any notice
given under this agreement by any Purchaser (receipt of such notice being good
discharge of any obligation or requirement on the Purchasers to serve such
notice on all Sellers).  Each Seller
hereby authorises the Purchasers to rely on any notice given or action taken by
SIRVA UK where it purports to act on behalf of the Sellers under this
agreement.


 


27.7                           The
Purchasers hereby acknowledge and agree that Wincanton Holdings is authorised
to agree to any matters referred to in this agreement on behalf of all of the
Purchasers, to perform all such acts as are required, authorised or
contemplated by this agreement to be performed by the Purchasers and to receive
on behalf of the Purchasers any notice given under this agreement by any of the
Sellers (receipt of such notice being good discharge of any obligation or
requirement on the Sellers to serve such notice on all Purchasers).  Each Purchaser hereby authorises the Sellers
to rely on any notice given or action taken by Wincanton Holdings where it
purports to act on behalf of the Purchasers under this agreement.


 


28.                               INTERPRETATION


 


28.1                           Words and
expressions used in this agreement shall have the meanings set out in Schedule 1
unless the context requires otherwise.


 


28.2                           The
Schedules comprise schedules to this agreement and form part of this agreement.


 


29.                               GUARANTEE


 


29.1                           In
consideration of the Purchasers agreeing to buy the Shares on the terms of this
agreement and in consideration of the Sellers agreeing to sell the Shares,
Wincanton Holdings and the Sellers’ Guarantor respectively unconditionally and
irrevocably guarantee:


 


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(a)                                  the
due, punctual and full performance by the Sellers and the Purchasers of all
their obligations under this agreement;


 


(b)                                 the
payment by the Sellers and the Purchasers when due of any amount payable under
this agreement


 


as if the
Sellers’ Guarantor and Wincanton Holdings were the principal obligor under this
agreement and not merely a surety.


 


29.2                           The Sellers’
Guarantor shall indemnify the Purchasers against all reasonable costs which the
Purchasers may pay or incur in collecting any amount payable by the Sellers or
the Sellers’ Guarantor under this agreement.


 


29.3                           Wincanton
Holdings shall indemnify the Sellers against all reasonable costs which the Sellers
may pay or incur in collecting any amount payable by the Purchasers or
Wincanton Holdings under this agreement.


 


29.4                           The
guarantee set out in sub-clause 29.1 is a continuing guarantee and shall remain
in full force and effect until all the obligations of the Sellers and of the
Purchasers guaranteed by this clause have been discharged in full.  It is in addition to and shall not prejudice
nor be prejudiced by any other guarantee, indemnity or other security or right
against any third party which the Purchasers or Sellers may have for the due
performance of these obligations.


 


29.5                           Before
making any demand under sub-clause 29.1 
a Purchaser or Seller shall make a written demand of the Sellers or the
Purchasers (as the case may be) specifying the payment or obligation to be
performed.  If the demand is not fully
satisfied within 2 Business Days of its receipt by the Sellers or the
Purchasers, a Purchaser or Seller shall be entitled to make written demand upon
and proceed directly against the Sellers’ Guarantor or Wincanton Holdings (as
the case may be) in respect of any specified payment or obligation which is due
for performance and remains unsatisfied.


 


29.6                           Wincanton
Holdings and the Sellers’ Guarantor acknowledge that their liability under this
clause shall not be discharged or affected in any way by time or any other
indulgence or concession being granted to the Purchasers or the Sellers or by
any other act, omission, dealing, matter or thing whatsoever (including without
limitation any change in the memorandum or articles of association of the
Sellers, the Purchasers, Wincanton Holdings or the Sellers’ Guarantor, any
amendment to this agreement or the liquidation, dissolution, reconstruction or
amalgamation of the Purchasers, the Sellers or Wincanton Holdings or the
Sellers’ Guarantor or the illegality or enforceability of this agreement) which
but for this provision might operate to release Wincanton Holdings or the
Sellers’ Guarantor from their obligations under this clause 27.


 


30.                               GOVERNING LAW & DISPUTES


 


30.1                           This
agreement and the legal relationships established by or otherwise arising in
connection with this agreement shall be governed by, and interpreted in
accordance with, English law.


 


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30.2                           Save to the
extent that the parties to the relevant Dispute (as defined below) agree
otherwise in writing, the courts of England are to have exclusive jurisdiction
to settle any dispute, controversy or claim which arises out of or in
connection with this agreement including the breach, termination or invalidity
thereof and including any claims for set-off and counterclaims (Disputes) which may
arise in connection with the creation, validity, effect, interpretation or
performance of, or the legal relationships established by, this agreement or
otherwise arising in connection with this agreement, and for such purposes
irrevocably submit to the jurisdiction of the English courts.


 


30.3                           Subject to
clause 30.5 below, prior to commencing proceedings in relation to any
particular Dispute, any of the Purchaser or the Sellers shall first serve
formal written notice on the other party that the Dispute in question has
arisen (Notice of
Dispute).  The Notice of
Dispute shall contain reasonable detail as to the material points of the
Dispute, including, to the extent reasonably practicable in the context of the
relevant Dispute, sufficient detail to enable the parties to reach an amicable
settlement pursuant to the procedure set out in the remaining provisions of
this clause 30.


 


30.4                           Following
the service of a Notice of Dispute, the Sellers and the Purchasers shall use
all reasonable endeavours to settle such Dispute amicably through negotiations
between their respective authorised representatives within a period of thirty
(30) days starting from the date of receipt of the Notice of Dispute by the
relevant party.  The Sellers and the
Purchasers may by agreement extend such thirty (30) day period and take all
such other steps as they mutually agree will assist them in reaching an
amicable settlement of the Dispute, which the parties acknowledge might include
the joint appointment of a person who is an expert in the subject matter of the
Dispute.  No party shall commence
proceedings in relation to the Dispute which is the subject of the Notice of
Dispute unless that Dispute has not been resolved by the signing of written
terms of settlement by authorised representatives of both the relevant Sellers
and the relevant Purchasers within such thirty (30) day period (or such longer
period as may have been agreed between them).


 


30.5                           No party
shall be required to serve a Notice of Dispute and comply with the provisions
of clauses 30.3 and 30.4 in respect of a Dispute prior to commencing
proceedings solely for the purpose of obtaining interlocutory relief or a
mandatory injunction which is sought pending final disposition of the matter
concerned as between the parties in relation to that Dispute.


 


AS WITNESS this agreement has been signed on behalf of the parties the day and year first before
written.


 


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SCHEDULE 11


 


INTERPRETATION


 


1.                                       In this agreement, the following words and expressions shall have
the following meanings:


 


Accounting Principles means the accounting principles, policies, treatments, practices and
categorisations used in the reports submitted in respect of the relevant Target
Company for the purpose of the preparation of the consolidated financial
statements of SIRVA, Inc. and its affiliates for the year ended 31 December 2003.


 


Act means the Companies Act 1985;


 


Affiliate means
in relation to any party, any subsidiary undertaking or parent undertaking of
that party and any subsidiary undertaking of any such parent undertaking or
subsidiary undertaking, in each case from time to time;


 


Aggregate Adjusted Net Book Value means the aggregate book value of the assets of the Target
Companies (including goodwill and intangible assets, but excluding Cash) less
the aggregate amount of the liabilities of the Target Companies (excluding
Financial Debt), in each case as at Closing;


 


Agreed Form means,
in relation to a document, the form of that document which has been initialled
on the date of this agreement for the purpose of identification by or on behalf
of the Sellers and the Purchasers (in each case with such amendments as may be
agreed by or on behalf of the Sellers and the Purchasers);


 


Agreed Form Documents means the following documents in the Agreed Form referred to in
Error!
Reference source not found.;


 


Annexes means
annexes to any Schedule to this agreement, and Annex shall be
construed accordingly;


 


Applicable Law means,
with respect to any person, property, transaction, event or other matter, any
law, rule statute, regulation, instrument, order, judgement, decree,
treaty or other requirement having the force of law in any jurisdiction
(collectively, the Law)
relating or applicable to such person, property, transaction, event or other
matter, to the extent that it so relates or is so applicable;


 


Business means
the operation of the transportation network, including freight forwarding and
installation activities, for high value products (including telecommunications,
office products and medical products) carried on by the Target Companies in the
Protected Territories (as defined in clause 16.1(d)) as of the date of this
agreement, but excluding the following activities: records storage and
management; household goods moving; commercial relocation (including office and
industrial moving and installation); and employee relocation services
(including mortgage and title services);


 


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Business Day means a
day (other than a Saturday or Sunday) on which banks generally are open in
London for the transaction of normal banking business or, if applicable to an
entity incorporated in a jurisdiction other than the United Kingdom, open for
the transaction of normal banking business in that jurisdiction;


 


CAA means the Capital Allowances Act 2001


 


Cash means, in
relation to each Target Company, the aggregate of its cash or cash equivalents
in hand or credited to any account with any banking, financial, acceptance
credit, lending or other similar institution or organisation, including all
interest accrued thereon, as at Closing, as set out in the accounting records
of that Target Company;


 


Claim means any claim
for breach of Warranty and any claim under clauses 6.8, 13 or 14 or under the
Tax Covenant;


 


Closing means
completion of the sale and purchase of the Shares in accordance with the
provisions of this agreement;


 


Closing Date has the
meaning given in clause 5.1;


 


Closing Documents
means the documents set out in Error! Reference source not found.;


 


Closing Statement has the meaning given in Error! Reference source not found.;


 


Conditions means
the conditions to Closing set out in clause 3.1, and Condition means any
of them;


 


Confidential Information has the meaning given in clause 19;


 


Costs means
losses, damages, costs (including reasonable legal costs) and expenses
(including taxation), in each case of any nature whatsoever;


 


Data Room means
the Data Room relating to the Target Companies comprising the
correspondence, contracts, agreements, licences, documents and other
information made available to the Purchaser, and its advisers as included in the
disclosure bundle in the Agreed Form;


 


DB Scheme has
the meaning given in Error! Reference source not found. of Error! Reference source not
found.;


 


Debt Free/Cash Free Price has the meaning given in clause 2.1;


 


Deed of Substitution has the meaning given in Error! Reference source not found. of Error!
Reference source not found.;


 


Default Interest
means interest at LIBOR plus 2 per cent.;


 


Disclosure Letter
means the letter in the Agreed Form from the Sellers to the Purchasers
executed and delivered immediately before the signing of this agreement;


 


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Due Date has the
meaning given in clause 17.3;


 


Due Sum has the
meaning given in clause 17.3;


 


Employees means those
individuals employed by any Target Company at the date of this agreement;


 


Encumbrance means any
interest or equity of any person (including any right to acquire, option or
right of pre-emption or conversion) or any mortgage, charge, pledge, lien,
assignment, hypothecation, security interest, title retention or any other
security agreement or arrangement, or any agreement to create any of the above;


 


Environment means all or any of the following media, namely air (including the
air within buildings or other natural or man-made structures above or below
ground), water or land;


 


Environmental
Laws means all international,
European Union, national, state, federal, regional or local laws (including
common law, statute law, civil and criminal law), which are in force and
binding at the date of completion relating or pertaining to Environmental
Matters, human health, comfort, safety or the welfare of any other living
organism;


 


Environmental
Matters means, in relation to the
business of the Sellers and the Sites, all matters relating to the pollution or
protection of the Environment;


 


Environmental Consents means any permit, licence, authorisation, approval, consent, filing
requirement or registration from time to time necessary or desirable under or
in relation to Environmental Laws relating to either the carrying on of the
business of the Sellers or the Target Companies or the use of, or any
activities or operations carried out at, any Site;


 


Environmental Report means the report dated 12 March 2004 carried out by DGMR
Raadgevende Ingenieures BV in respect of noise emissions at the Venlo Property;


 


Environmental Warranties means the warranties set out in Error! Reference source not found. of Error!
Reference source not found.;


 


EPP has the
meaning given in Error! Reference source not found. of Error! Reference source not
found.;


 


Estimated Cash
means (subject to clause 2.4), in relation to each Target Company, the
estimated Cash expressed in Euros attributable to that Target Company as at
Closing, as shown in column 2 of the Annex to Error! Reference source not found.;


 


Estimated External Debt means (subject to clause 2.4), in relation to each Target Company,
the estimated External Debt expressed in Euros attributable to that Target
Company as at Closing, as shown in column 3 of the Annex to Error! Reference source not
found.;


 


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 Euros on such date 


 


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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 HSBC Bank as at the close of business in London on such
date;


 


External Debt means,
in relation to each Target Company, the aggregate of the Financial Debt owed by
that Target Company, as shown by the accounting records of that Target Company
as at Closing, to any banking, financial, acceptance credit, lending or other
similar institution or organisation;


 


Final Share Price has the meaning given in clause 2.1;


 


Financial Adjustments means any adjustment(s) required in accordance with clause 2.2; and Financial Adjustment Provisions means
the provisions of clause 2.2;


 


Financial Debt means borrowings and indebtedness in the
nature of borrowing owed to any banking, financial, acceptance credit, lending
or other similar institution or organisation;


 


German Company means midiData Logistik GmbH;


 


German Schemes has the meaning given in Error! Reference source not
found. of Error! Reference source not found.;


 


German Schemes Reserve means the book reserves set aside
by the German Company in order to meet its ongoing liabilities under the German
Schemes and which are proofed by the actuarial report of Schweizer Leben
Pensions Management (Munich) on an annual basis;


 


Governmental Consents means, in relation to any Shares any consents, approvals, orders or
authorisations from any Governmental Entity in relation to those Shares (except
for those specified in clause 3.1) which are required to be obtained for
the valid and effective transfer of such Shares to the Purchaser or a
Purchaser;


 


Governmental Entity means,
in relation to anywhere in the world, any supra-national, national, state,
municipal or local government (including any subdivision, court, administrative
agency or commission or other authority thereof) or any quasi-governmental or
private body exercising any regulatory, taxing, importing or other governmental
or quasi-governmental authority, including the European Union;


 


group relief has the meaning given in the Tax Covenant;


 


Hive-Out means the
transfer of certain leasehold property, undertaking rights and assets of North
American (UK) Limited to Pickfords Limited pursuant to a hive out agreement
dated 29 October 2004 (the Hive-Out Agreement);


 


Hive-Out Indemnities has the meaning given in clause 6.8;


 


holding company means
any company which holds a majority of the voting rights in another company, or
which is a member of another company and has the right to appoint or remove a
majority of its board of directors, or which is a member of 


 


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another
company and controls a majority of the voting rights in it under an agreement
with other members;


 


ICTA means the Income and Corporation Taxes Act
1988


 


Information Memorandum means the information memorandum relating to the Business a copy of
which is in the Data Room;


 


Initial Cash Price means the cash price payable on Closing under clause 2.4 comprising
the aggregate of the Initial Share Price in relation to each Set of Shares;


 


Initial Share Price has the meaning given in clause 2.4;


 


Institute of Chartered Accountants means the body of the Institute of Chartered Accountants in England
and Wales with its registered office at Chartered Accountants’ Hall, PO Box 433, Moorgate Place,
London EC2P 2BJ;


 


Intellectual Property Rights or IPR
means patents, trade marks, service marks, logos, get-up, trade names, internet
domain names, rights in designs, copyright (including rights in computer
software) and moral rights, database rights, semi-conductor topography rights,
utility models, rights in know-how and other intellectual property rights, in
each case whether registered or unregistered and including applications for
registration, and all rights or forms of protection having equivalent or
similar effect anywhere in the world;


 


Inter-Company Trading Amounts means all amounts owed, outstanding or accrued in the ordinary
course of trading, including any VAT arising on such amounts, as between any
member of the Sellers’ Group, on the one hand, and any Target Company, on the
other hand or as at Closing in respect of inter-company trading activity
between them and the provision of services, facilities and benefits; for the
avoidance of doubt, Inter-Company Trading Amounts:


 


(a)                                  include,
where applicable, amounts owed in respect of salaries or other employee
benefits (including payroll taxes thereon but excluding any bonuses and related
taxes), insurance (including health and motor insurance), pension and
retirement benefit payments, management training and car rental payments paid
or management services provided between them up to Closing; but


 


(b)                                 exclude
amounts due in respect of matters which would in the ordinary course of the
Business remain outstanding or otherwise have the characteristics of an intra-group
loan and also exclude, except as aforesaid, any amounts in respect of tax or
group relief;


 


Interim Period has
the meaning given in Error! Reference source not
found. of Error! Reference source not found.;


 


Intra-Group Payables means, in relation to each Target Company, any amounts owed by that
Target Company to any member of the Sellers’ Group which are neither Inter-Company
Trading Amounts nor amounts in respect of tax relief or group relief, 


 


33





















 


together with
accrued interest, if any, up to the relevant date on the terms of the
applicable debt; and Intra-Group
Payable shall be construed accordingly;


 


Intra-Group Receivables means, in relation to each Target Company, any amounts owed to that
Target Company by any member of the Sellers’ Group which are in each case
neither Inter-Company Trading Amounts nor amounts in respect of tax relief or
group relief, together with accrued interest, if any, up to the relevant date
on the terms of the applicable debt; and Intra-Group Receivable shall be construed
accordingly;


 


Key Managers means
those employees of the Target Companies whose names are set out in the Disclosure
Letter;


 


Last Accounts, in
relation to each Target Company other than SIRVA Netherlands B.V., means:


 


(a)                                  the
audited balance sheet of the company as at the Last Accounts Date in respect of
the financial year ended on the Last Accounts Date; and


 


(b)                                 the
audited profit and loss account of the company as at the Last Accounts Date in
respect of that financial year,


 


together, in
each case, with any notes, reports, statements or documents included in or
annexed or attached to them, in each case as set out in the Data Room;


 


Last Accounts Date means 31 December 2003;


 


Leases means any leases (including underleases)
under which the Properties are held, particulars of which are set out in Schedule 8 and
Lease  means
any of them;


 


LIBOR means:


 


(a)                                  the
display rate per annum of the offered quotation for deposits in sterling for a
period of one month which appears on Telerate 3750 (or such other page as
the parties may agree) at or about 11.00 a.m. London time on the Due Date;
or


 


(b)                                 if
the display rate cannot be determined under paragraph (a) above, the rate
determined as if the parties had specified that the rate for the Due Date will
be determined on the basis of the rates at which deposits in Euros are offered
by HSBC Bank at or about 11.00 a.m. London time on the Due Date to prime
banks in the London Interbank Market for a period of one month commencing on
the Due Date for amounts comparable to the Due Sum,


 


and, for the
purposes of this definition, Telerate Page 3750
means the display designated as Page 3750 on the Telerate Service (or
such other pages as may replace Page 3750 on that service) or such
other service as may be nominated by the British Bankers’ Association
(including the Reuters Screen) as the information vendor for the purposes of
displaying British Bankers’ Association Interest Settlement Rates for deposits
in sterling;


 


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Licences In means any material licence of Intellectual Property Rights which
has been granted by a third party to a Target Company in relation to the
Business or any part of it;


 


Licences Out
means any material licence of Intellectual Property Rights which has been
granted by a Target Company to a third party in relation to the Business or any
part of it;


 


Longstop Date means 15 March 2004 or such later date as the parties may agree in writing;


 


material means
material in the context of the Business as a whole unless the context otherwise
requires;


 


Management Accounts means the unaudited management accounts for each Target Company for
the period from the Last Accounts Date to 30 November 2004 in the case of
midiData Logistik GmbH and North American (UK) Limited and for the period from
10 November 2003 to 30 November 2004 in the case of SIRVA
Netherlands;


 


New Principal Employer has the meaning given in Error! Reference source not found. of Error!
Reference source not found.;


 


Non-Tax Claim
means a Claim other than a claim for breach of any of the Tax Warranties or a
claim under the Tax Covenant;


 


Pensions Indemnities means the indemnities set out in clauses 13 and 14;


 


Permitted Encumbrances means security interests arising in the ordinary course of business
or by operation of law including security interests for taxation and other
governmental charges;


 


Properties means the
leasehold interests of the Target Companies brief particulars of which are set
out in Error!
Reference source not found.;


 


Proposed Transactions
means the transactions contemplated by the Transaction Documents;


 


Pro Rata Percentage means the percentage which the Debt Free/Cash Free Price for the
relevant Target Company represents of the aggregate of all of the Debt
Free/Cash Free Prices;


 


Purchasers’ Conditions has the meaning
given in clause 3.1;


 


Purchasers’ Group
means the Purchasers and their Affiliates from time to time;


 


Purchasers’ Obligation means any representation, warranty or undertaking to indemnify
(including any covenant to pay pursuant to the Tax Covenant) given by the
Purchasers to the Sellers under this agreement;


 


35





















 


Purchasers’ Bank Account means the
bank account in the name of Wincanton Holdings at NatWest Bank, 32 Corn Street,
Bristol, BS97 7UG; account name Osborne Clarke Client Account; account number
00708542; Sort Code 56-00-05;


 


Purchasers’ Solicitors means Osborne Clarke of 2 Temple Back East, Temple Quay, Bristol BS1
6EG;


 


Record Date has the
meaning given in clause 3.6;


 


Redemption means
the redemption of two million and three hundred thousand ordinary redeemable
shares of £1 each in the capital of North American (UK) Limited in accordance
with the relevant provisions of the Act;


 


registered, in
relation to Intellectual Property Rights, includes registrations and
applications for registration;


 


Relevant Target Company means, in relation to any Shares listed in column 2 of Error! Reference source not
found. of Error! Reference source not found., the Target Company whose Shares they comprise (and whose name is
set out in that column);


 


Relief has the
meaning given in the Tax Covenant;


 


Representatives has
the meaning given in clause 19.1;


 


Schedules means the
Schedules to this agreement, and Schedule shall
be construed accordingly;


 


Sellers’ Bank Account
means the bank account in the name of SIRVA UK LIMITED at HSBC Bank; account
name: SIRVA UK LIMITED, 8 Canada Square, London E14 5HQ; account
number: 58593797; sort code: 40-05-15, Swift Code MIDLGB22;


 


Sellers’ Group means
the Sellers and their Affiliates from time to time but excluding the Target
Companies;


 


Sellers’ Obligation means any representation, warranty or
undertaking to indemnify (including any covenant to pay pursuant to the Tax
Covenant) given by the Sellers to the Purchasers under this agreement;


 


Sellers’ Solicitors means
Freshfields Bruckhaus Deringer of 65 Fleet Street, London, EC4Y 1HS;


 


Set of Shares means, in relation to a Seller, the shares
comprising issued share capital of any particular Target Company which are to
be sold by that Seller under this agreement;


 


Shares means the
shares comprising the entire issued share capital of each of the Target
Companies set out opposite the names of the Sellers in column 2 of Error! Reference source not
found. of Error! Reference source not found.;


 


Software Licence means the agreement in the Agreed Form pursuant to which NAVL
shall provide support to the Target Companies with respect to certain software;


 


36





















 


subsidiary and subsidiaries means
any company in relation to which another company is its holding company;


 


subsidiary undertaking has the meaning given in paragraph 2(m) of Schedule 1;


 


Surviving Provisions means clauses 15.1 to 15.3 inclusive (Tax), 18 (Announcements), 19
(Confidentiality), 20 (Assignment), 22 (Costs), 23 (Notices), 24 (Conflict
with other Agreements), 25 (Entire Agreement), 26 (Waiver, Rights and
Remedies), 27.2 to 27.4 (General), 28 (Interpretation), 29 (Governing Law and
Arbitration) and Schedule 1 (Interpretation);


 


Target Companies
means the companies the Shares of which are listed in column 2 of Error! Reference source not
found. of Error! Reference source not found. and details of which are set out in Error! Reference source not
found. of Error! Reference source not found. and Target
Company means any of them;


 


Target Company IPR means the registered and unregistered Intellectual Property Rights
owned, used, licensed in or licensed by the Target Companies;


 


Tax and Taxation have the
meanings given in the Tax Covenant;


 


Tax Authority has the
meaning given in the Tax Covenant;


 


Tax Claim means
a Claim for a breach of any of the Tax Warranties or a claim under the Tax
Covenant;


 


Tax Covenant means
the covenant relating to tax set out in Error! Reference source not found.;


 


Tax Warranties means
the warranties set out in Error! Reference source not found. of Error!
Reference source not found.;


 


TCGA means the
Taxation of Chargeable Gains Act 1992;


 


Third Party Assurances means all guarantees, indemnities, counter-indemnities and letters
of comfort of any nature whatsoever given to a third party by a member of the
Sellers’ Group in respect of any obligation of a Target Company;


 


Trade Mark and Logos Licence means the licence in Agreed Form from NAVL in favour of North
American (UK) Limited in respect of certain trade names and logos;


 


Trade Mark Assignment means the assignment in the Agreed Form from North American Van
Lines Inc. (NAVL),
an Affiliate of the Sellers to North American (UK) Limited in relation to the “midiData”
trade mark;


 


Transaction Documents means this agreement, the Disclosure Letter and any other Agreed Form Documents;


 


undertaking
means a body corporate or partnership or unincorporated association carrying on
trade or business with or without a view to profit; in relation to an
undertaking which is not a company, expressions in this agreement appropriate
to companies are to be construed as references to the corresponding persons,
officers, 


 


37





















 


documents or
agents (as the case may be) appropriate to undertakings of that description;


 


US GAAP means
generally accepted accounting principles in the United States, applied on a
consistent basis;


 


VAT means value added
tax and any similar sales or turnover tax;


 


VATA means the Value Added Tax
Act 1994;


 


Venlo Property means
the Property at Venlo as listed in Error! Reference source not found. of this agreement;


 


Warranties means the
warranties given pursuant to clause 6 and set out in Error! Reference source not
found.;


 


Working Hours means
9.30am to 5.30pm on a Business Day.


 


2.                                       In this agreement, unless the context otherwise requires:


 


(a)                                  references
to a person shall be
construed so as to include any individual, firm, body corporate (wherever
incorporated), government, state or agency of a state or any joint venture,
association, partnership, works council or employee representative body
(whether or not having separate legal personality);


 


(b)                                 the
headings are inserted for convenience only and shall not affect the
construction of this agreement;


 


(c)                                  the
singular shall include the plural and vice versa;


 


(d)                                 references
to one gender include all genders;


 


(e)                                  references
to times of the day are to local time in the relevant jurisdiction unless
otherwise stated;


 


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


 


(g)                                 references
to Euros or € are references to the lawful currency from time to time of The
Netherlands and Germany;


 


(h)                                 subject
to paragraph (i) below and unless otherwise specifically provided in this
agreement, references to any monetary sum expressed in a sterling amount shall,
where such sum is referable in whole or part to a particular jurisdiction, be
deemed to be a reference to an equivalent amount in the local currency of that
jurisdiction translated at the Exchange Rate at the relevant date specified in
this agreement;


 


38





















 


(i)            where it is necessary to
determine whether a monetary limit or threshold set out in Error! Reference source not
found. of Error! Reference source not found. has been reached or exceeded (as the case may be) and the value of
any of the relevant claims is expressed in a currency other than sterling, the
value of each such claim shall be translated into sterling at the Exchange Rate
on the date of receipt of written notification of the existence of such claim
in accordance with Error! Reference source not found. of Error! Reference source not
found.;


 


(j)            where any number or amount
is expressed as a negative number or amount and/or is preceded by the minus
sign or a calculation results in a negative number or amount and such negative
number or amount is to be subtracted from another number or amount (whether
positive or negative), then, applying the general rule of arithmetic, the
equivalent positive number or amount shall be added to that other number or
amount (for example, 3—10=(3+10)=13);


 


(k)           for the avoidance of doubt:


 


(i)      where any two amounts are being
compared for the purpose of determining which is greater or less, a positive
amount is greater than a negative amount and, of two negative amounts, the
amount closer to zero is the greater amount; and


 


(ii)     where the amount of the
difference between two amounts is to be calculated, the amount of that
difference is always a positive amount regardless of whether either or both of
the relevant amounts are themselves negative amounts;


 


(l)            where any statement in
this agreement is qualified by the expression to the best of the Sellers’ knowledge or
so far as the Sellers are aware or
any similar expression, that statement shall be deemed to have been made only
on the basis of the actual knowledge at the date of this agreement of Ron
Milewski, Gary Greasby, Terry Rayment, Steve Harris, Cornelia Eichorn, Michael
Kingston, Peter Schleicher, Eberhard Fuhr, Manfred Ruland, Eric Baker, Kevin
Sey, Mike Falvey, Paul Mason, David Glatz, John Dupuy, and Michael Boos and
such phrase shall carry no further or other implication nor impose any
requirement on the Sellers or such persons to make enquiries of any other
person, party, body or authority;


 


(m)          an undertaking is a subsidiary undertaking of
another undertaking (its parent
undertaking) if that other undertaking, directly or indirectly,
through one or more subsidiary undertakings:


 


(i)      holds a majority of the voting
rights in it; or


 


(ii)     is a member or shareholder of it
and has the right to appoint or remove a majority of its board of directors or
other equivalent managing body; or


 


(iii)    has a right to exercise a dominant
influence over it:


 


39





















 


(A)          by virtue of provisions
contained in its memorandum or articles or equivalent constitutional documents;
or


 


(B)           by virtue of a contract
with that undertaking or other members or shareholders of that undertaking; or


 


(iv)    is a member or shareholder of it
and controls alone, pursuant to an agreement with other shareholders or
members, a majority of the voting rights in it,


 


(n)           any phrase introduced by
the terms including,
include, in particular or any
similar expression shall be construed as illustrative and shall not limit the
sense of the words preceding those terms.


 


3.             Except as otherwise
expressly provided in this agreement, any express reference to an enactment
(which includes any legislation in any jurisdiction) includes references to:


 


(a)           that enactment as amended,
consolidated or re-enacted by or under any other enactment before or after the
date of this agreement;


 


(b)           any enactment which that
enactment re-enacts (with or without modification); and


 


(c)           any subordinate legislation
(including regulations) made (before or after the date of this agreement) under
that enactment, as amended, consolidated or re-enacted as described in sub-paragraph
(a) or (b) above,


 


except to the
extent that any of the matters referred to in paragraphs (a) to (c) occurs
after the date of this agreement and increases or alters the liability of the
Sellers or the Purchaser (or any person on whose behalf it is acting as agent
pursuant to this agreement) under this agreement.


 


4.             Where there is any
inconsistency between the definitions set out in this Schedule and the
definitions set out in any clause or any other Schedule, then, for the purposes
of construing such clause or Schedule, the definitions set out in such clause
or Schedule shall prevail.


 


 


	
  SIGNED by

  	
  )

  	
  Gary Greasby

  
	
  for and on behalf of

  	
  )

  	
   

  
	
  SIRVA UK LIMITED

  	
  )

  	
   

  
	
  under a power of

  	
  )

  	
   

  
	
  attorney dated

  	
  )

  	
   

  
	
  25 November 2004

  	
  )

  	
   

  



 


40





















 


	
  SIGNED by

  	
  )

  	
  Gary Greasby

  
	
  for and on behalf of

  	
  )

  	
   

  
	
  MIDIDATA SPEDITION
  GmbH

  	
  )

  	
   

  
	
  under a power of

  	
  )

  	
   

  
	
  attorney dated

  	
  )

  	
   

  
	
  26 November 2004

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
  )

  	
  Steve Boyd

  
	
  for and on behalf of

  	
  )

  	
   

  
	
  ALLIED ARTHUR
  PIERRE SA

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
  )

  	
  Ralph Ford

  
	
  for and on behalf of

  	
  )

  	
   

  
	
  SIRVA WORLDWIDE,
  INC.

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
  )

  	
  Charles Hallows

  
	
  for and on behalf of

  	
  )

  	
   

  
	
  WINCANTON HOLDINGS
  LIMITED

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
  )

  	
  Charles Hallows

  
	
  for and on behalf of

  	
  )

  	
   

  
	
  WINCANTON TRANS
  EUROPEAN

  	
  )

  	
   

  
	
  HOLDINGS GMBH

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by

  	
  )

  	
  Ian Mackie

  
	
  for and on behalf of

  	
  )

  	
   

  
	
  WINCANTON TRANS
  EUROPEAN

  	
  )

  	
   

  
	
  HOLDING BV

  	
  )

  	
   

  



 


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