EX-10.4 51 dex104.htm ASSET AND BUSINESS TRANSFER AGREEMENT, DATED DECEMBER 20, 2006 Asset and Business Transfer Agreement, dated December 20, 2006

Exhibit 10.4


Dated 20 December 2006









30 St Mary Axe

London EC3A 8AF

Table of Contents
























































THIS AGREEMENT is made on 20 December 2006



(1) RAYTHEON AIRCRAFT SERVICES LIMITED (registered in England with number 03479031) whose registered office is at The Pinnacles, Elizabeth Way, Harlow, Essex CM19 5BB (the “Seller”); and


(2) GREENBULB LIMITED (incorporated in England with company number 06018571 whose registered offices is at 99 City Road, London EC1Y 1AX (the “Buyer”).



(A) At the date of this Agreement, the Seller owns the Assets and carries on the Business.


(B) The Seller has agreed to sell and the Buyer has agreed to buy the Business, as a going concern, and the Assets, and to assume and become responsible for all of the Liabilities, subject to the terms and conditions of this Agreement, and in accordance with the SPA.

NOW IT IS AGREED as follows:



In this Agreement:


1.1 Defined terms

“Agreement” means this Agreement, including the Recitals and Schedules;

“Asset Purchase Price” has the meaning given to it in clause 3;

“Assets” means right, title and interest of the Seller in all of its assets other than (i) the assets held by the Raytheon Corporate Jets Pension Scheme and (ii) Cash;

“Business” means the assets, liabilities and operations of the Seller, including the assets, liabilities and operations primarily related to the RAC brands currently and previously in production or development as of the Closing Date; provided that in no event does the Business include the assets, liabilities and operations of Raytheon Aircraft Credit Corporation and its subsidiaries, Raytheon Travel Air Company or Flight Options, LLC;

“Business Day” means a day (other than a Saturday or Sunday) when banks are open for business in the City of London, England and New York, USA;

“Cash” has the meaning given to it in the SPA.

“Charges” has the meaning given to it in clause 5.3;

“Competent Authority” means; (i) any person (whether autonomous or not) having legal and/or regulatory authority and/or enforcement powers; (ii) any court of law or tribunal in any jurisdiction; and/or (iii) any taxation authority;

“Completion” means completion of both the sale and purchase of the Business and the Assets pursuant to this Agreement and the closing as defined in the SPA, such events to occur simultaneously;

“Completion Date” means the Closing Date as such term is defined in the SPA;

“Employees” means the persons employed by the Seller in the Business at the Completion Date and whose names and details of employment are set out in Schedule 1, together with any individual whose contract of employment or contract for services shall have effect (or would have had such effect but for the termination of employment or engagement of such individual) as if originally made between the Buyer and the individual concerned as a result of the provisions of the Employment Regulations and/or any judicial decision interpreting the same;

“Employment Liabilities” means all and any Liabilities and expenses (including legal expenses) relating to or arising out of the employment of the Employees or the termination of their employment including, without prejudice to the foregoing generality, negligence claims by any of the Employees or any third party, breach of the Employment Regulations, unfair dismissal, redundancy, unlawful discrimination, breach of contract, unlawful deduction of wages and equal pay but excluding any liability for or in respect of tax or National Insurance contributions;

“Employee Liability Information” has the meaning given to it in Regulation 11 of the Employment Regulations;

“Employment Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006;

“Encumbrance” means a mortgage, security, charge, pledge, lien or other document of a similar type or effect;

“Excluded Liabilities” means all liabilities and obligations of the Seller, whether known or unknown, asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated and whether due or to become due, whether arising before, on or after the Completion Date under the Raytheon Corporate Jets Pension Scheme (including but without limitation in respect of any financial support direction or contribution notice or other debt or claim arising under or relating to Section 75 and 75A of the Pension Act 2004 and excluding, for the avoidance of doubt, any liability in respect of the Buyer’s obligation to provide replacement benefits following the transfer contemplated by Clause 5.1) (the “Pension Plan Liabilities”) and any liability for or in respect of taxes and National Insurance contributions or similar charges or levies.

“Liabilities” means all liabilities and obligations of the Seller, whether known or unknown, asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated and whether due or to become due other than the Excluded Liabilities.



“Parties” means the Buyer and the Seller (and “Party” shall be construed accordingly);

“Pension Plan” means the Raytheon Corporate Jets Pension Scheme;

“Proceedings” means any proceeding, suit or action (including arbitration) arising out of or in connection with this Agreement;

“SPA” means that certain Stock Purchase Agreement dated as of the date hereof among the Buyer, the Seller, Raytheon Company and certain other parties;

“VAT” means value added tax; and

“VATA” means the Value Added Tax Act 1994.


1.2 Reference to any document as being “in the agreed form” means that it is in the form agreed between the Sellers and the Buyer and initialled for the purposes of identification by or on behalf of the Sellers and the Buyer.


1.3 The table of contents and headings and sub-headings are for convenience only and shall not affect the construction of this Agreement.


1.4 Unless the context otherwise requires, words denoting the singular shall include the plural and vice versa and references to any gender shall include all other genders. References to any person (which for the purposes of this Agreement shall include bodies corporate, unincorporated associations, partnerships, governments, governmental agencies and departments, statutory bodies or other entities, in each case whether or not having a separate legal personality) shall include the person’s successors.


1.5 The words “other”, “include” and “including” do not connote limitation in any way.


1.6 References to Recitals, Schedules and clauses are to (respectively) recitals to, schedules to, and clauses of, this Agreement (unless otherwise specified) and references within a Schedule to paragraphs are to paragraphs of that Schedule (unless otherwise specified).


1.7 References in this Agreement to any statute, statutory provision, directive of the Council of the European Union (whether issued jointly with any other person or under any other name) or other legislation include a reference to that statute, statutory provision, directive or legislation as amended, extended, consolidated or replaced from time to time (whether before or after the date of this Agreement) and include any order, regulation, instrument or other subordinate legislation made under the relevant statute, statutory provision, directive or legislation.


1.8 References to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, organisation, body, official or any legal concept, state of affairs 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.



1.9 Any reference to “writing” or “written” includes faxes and any legible reproduction of words delivered in permanent and tangible form (but does not include e-mail).


1.10 In the case of any inconsistency or conflict between the terms of this Agreement and the SPA, the terms and provisions of the SPA will prevail unless the contrary intention is expressly provided for in this Agreement.




2.1 Subject to the terms of this Agreement and the SPA, the Seller agrees to sell to the Buyer, and the Buyer agrees to buy from the Seller, the Business as a going concern, and the Assets and to assume and be responsible for all of the Liabilities.



The consideration for the sale of the Business and the Assets shall be the amount allocated to the sale by Seller under Section 2.2 of the SPA (the “Asset Purchase Price”), which shall be payable in accordance with the SPA, and the assumption of the Liabilities.




4.1 Completion shall take place on the Completion Date in the manner and place provided for in the SPA.


4.2 Title and risk; Assumption of Liabilities


  4.2.1 Risk in and title to the Assets shall pass to the Buyer at, and with effect from, Completion.


  4.2.2 Following Completion, all Liabilities shall be for the Buyer’s account, subject to the provisions of the SPA.


  4.2.3 For the avoidance of doubt the Excluded Liabilities are for Seller’s account.




5.1 Transfer of Employees

The Seller and the Buyer acknowledge and agree it is their intention that by virtue of the transactions anticipated in this Agreement and the SPA, pursuant to the Employment Regulations, the contracts of employment between the Seller and the Employees will have effect after the Completion Date as if originally made between the Buyer and the Employees but the parties agree that the provisions of this clause 5 shall apply irrespective of whether or not the Employment Regulations do apply as anticipated in this clause 5.1.



5.2 Communication to Employees

Before the Completion Date, the Seller and the Buyer shall jointly communicate to each Employee a notice (in a form approved by the Seller and the Purchaser) to the effect that their contract of employment will have effect after the Completion Date as specified in clause 5.1.


5.3 Charges

Except for the Pension Plan Liabilities (which liabilities are being retained by the Seller in full), all liabilities, costs, expenses and outgoings in relation to each Employee (including, but not limited to salaries, wages, bonus (even if not due and payable at that time), (together referred to in this clause as “Charges”) but excluding National Insurance Contributions, PAYE remittances and payments in respect of any other emoluments) shall be borne and discharged by the Buyer, subject to any provisions of the SPA.


5.4 Indemnity

Subject to the provisions of the SPA, the Buyer hereby undertakes to indemnify and keep indemnified the Seller on demand from and against any Employment Liabilities, or any liabilities arising under the Employment Regulations, suffered or incurred by the Seller in relation to the Employees which relate to or arise out of such Employees’ employment in the Business or the termination thereof or any other event or occurrence, in each case whether on or after or prior to the Transfer Date, save that the Buyer shall have no liability hereunder with respect to the Pension Plan Liabilities.

The Seller hereby undertakes to indemnify and keep indemnified the Buyer on demand from and against the Pension Plan Liabilities.


5.5 Provision of Information by the Seller

The Seller agrees to cooperate with the Buyer to effectuate transfer of the Employees and use its commercially reasonable efforts to comply with Regulation 11 of the Employment Regulations.


5.6 Certain Payment

On or prior to the Closing Date, the Seller shall pay $2 million to the Buyer, to be held in trust by the Buyer and then paid on or as soon as practicable following the Closing Date to a registered pension scheme (as defined for the purposes of Part 4 of the Finance Act 2004). This sum shall be applied (following its allocation between Employees in the proportions reasonably directed by the Seller (in consultation with the Buyer) on or prior to the Closing Date) for the purpose of providing additional benefits to Employees who choose to join the registered pension scheme. These benefits shall be additional to any benefits which the Buyer is obliged to provide by virtue of the Employment Regulations, section 257 and 258 of the Pensions Act 2004, or otherwise.





6.1 No waiver by omission, delay or partial exercise

No right, power or remedy provided by law or under this Agreement shall be waived, impaired or precluded by:


  6.1.1 any delay or omission to exercise it; or


  6.1.2 any single or partial exercise of it, or any full or partial release, compounding or compromise on an earlier occasion; or


  6.1.3 any delay, omission to exercise, single or partial exercise, full or partial release, compounding or compromise of any other such right, power or remedy.


6.2 Specific waivers to be in writing

Any waiver of any right, power or remedy under this Agreement must be in writing and may be given subject to any conditions thought fit by the grantor. No waiver will take effect if the person seeking the waiver has failed to disclose to the grantor every material fact or circumstance which (so far as the person seeking the waiver is aware) has a bearing on its subject matter. Unless otherwise expressly stated, any waiver shall be effective only in the instance and only for the purpose for which it is given.


6.3 Variations to be in writing

No variation to this Agreement shall be of any effect unless it is agreed in writing and signed by or on behalf of each Party.


6.4 Invalidity

Each of the provisions of this Agreement is severable. If any such provision is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction:


  6.4.1 that shall not affect or impair the legality, validity or enforceability in that jurisdiction of any of the other provisions of this Agreement, or of that or any provisions of this Agreement in any other jurisdiction; and


  6.4.2 the Parties will use reasonable endeavours to negotiate in good faith with a view to replacing it with one or more provisions satisfactory to any relevant Competent Authority but differing from the replaced provision as little as possible.



No party may assign, or grant any Encumbrance or security interest over, any of its rights under this Agreement or any document referred to in it without the prior written consent of the other party, or in accordance with the SPA.





8.1 Payment of costs

Except as otherwise stated in this Agreement or the SPA, each Party shall bear its own costs and expenses in relation to the negotiation, preparation, execution and carrying into effect of this Agreement and all other agreements forming part of the transactions contemplated by this Agreement.




9.1 This Agreement

In this clause, references to this Agreement include all other written agreements and arrangements between the Parties which are expressed to be supplemental to this Agreement or which this Agreement expressly preserves or requires to be executed.


9.2 Entire agreement

This Agreement, the SPA and the Ancillary Agreements (as such term is defined in the SPA), constitute the whole and only agreement and understanding between the Parties in relation to its subject matter.


9.3 Fraud

Nothing in this Agreement shall be read or construed as excluding any liability or remedy in respect of fraud.


9.4 Sole remedy

Except as provided in Section 9.3 above, the Buyer and the Seller agree that their sole remedy for breaches of this Agreement shall be as provided in Article VIII of the SPA.




10.1 Form of notices

Any communication to be given in connection with the matters contemplated by this Agreement shall except where expressly provided otherwise be in writing and shall either be delivered by hand or sent by first class pre-paid post or facsimile transmission. Delivery by courier shall be regarded as delivery by hand.


10.2 Address and facsimile

Such communication shall be sent to the address of the relevant Party referred to in this Agreement or the facsimile number set out below or to such other address or facsimile number as may previously have been communicated to the sending Party in accordance with this clause. Each communication shall be marked for the attention of the relevant person.




Raytheon Company


870 Winter Street


Waltham, Massachusetts 02451-1449


Attention: Jay B. Stephens


Facsimile: (781) 522-6471

with a copy (which shall not constitute notice) to:

Kirkland & Ellis


153 East 53rd Street


39th Floor


New York, New York 10022



   Stephen Fraidin
      Kimberly P. Taylor

Facsimile: (212) 446-4900


Greenbulb Limited

with a copy (which shall not constitute notice) to:

Fried, Frank, Harris, Shriver & Jacobson LLP


One New York Plaza


New York, New York 10054



   Robert C. Schwenkel
      Christopher Ewan

Facsimile: (212) 859-4000




11.1 Nothing in this Agreement is intended to confer on any person any right to enforce any term of it which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999.


11.2 No right of any Party to this Agreement to agree any amendment, variation, waiver or settlement under or arising from or in respect of this Agreement shall be subject to the consent of any person other than the Parties to the SPA.




12.1 Subject to the foregoing all amounts due under this agreement are expressed to be exclusive of VAT which, if properly due, shall be paid in addition to the amount so specified.



12.2. The Seller and the Buyer intend that article 5 of the Value Added Tax (Special Provisions) Order 1995 shall apply to the sale of the Business and the Assets under this agreement and agree to use all reasonable endeavours to secure that the sale is treated as neither a supply of goods nor a supply of services pursuant to that article.


12.3. If, nevertheless, any VAT is payable on the sale of the Assets under this agreement and HM Revenue & Customs (“HMRC”) have so confirmed in writing after full disclosure of all material facts, the Buyer shall pay to the Seller the amount of that VAT five days before the due date on which Seller must pay the VAT to HMRC or, if later, promptly after receipt of such confirmation from HMRC, in each case against delivery by the Seller to the Buyer of a proper VAT invoice in respect of it, together with a copy of the confirmation from HM Revenue & Customs that VAT is payable and of the document disclosing all material facts.


12.4. Before sending any relevant communication to HM Revenue & Customs, the Seller shall give the Buyer a reasonable opportunity to comment on it, and shall make such amendments as the Buyer reasonably requires.


12.5. If any land or interest in land is included in the Assets which falls within paragraph (a) of item 1 of Group 1 of Schedule 9 to the VATA 1994 (Freehold transfer of new or uncompleted building or civil engineering work) or in respect of which an election to waive exemption from VAT under Schedule 10 to VATA has been made, the Buyer agrees in either case to so elect in respect of each item of land or interest therein, provided that the Buyer is notified in writing by the Seller of any specific election required at least 10 working days prior to Completion. If the Seller fails to make any notification then any resulting VAT shall be for the Seller’s account (the price for the relevant asset or assets being deemed to be VAT inclusive). Where appropriate, the Buyer will also confirm that paragraph 5(2B) of SI1995/1268 does not apply to it.


12.6. The Buyer warrants to the Seller that it will use commercially reasonable efforts to be registered for VAT at Completion or immediately thereafter and that it will carry on the Business immediately after Completion.


12.7. The Seller and Buyer intend that section 49 of VATA shall apply to the sale of the Assets under this agreement and accordingly:


  12.7.1 that the Seller shall, on Completion, deliver to the Buyer all records referred to in section 49 of VATA (VAT Records);


  12.7.2 the Seller shall not make any request to HM Revenue & Customs for the VAT Records to be preserved by the Seller rather than the Buyer;


  12.7.3 the Buyer shall preserve the VAT Records for such period as may be required by law and, during that period, permit the Seller reasonable access to them to inspect or make copies of them free of charge; and


  12.7.4 the Buyer may fulfil its obligations under clause 12.7.3 by procuring that any future transferee of the Business (or any other person) preserves the VAT Records and permits reasonable access as mentioned in that clause, in which case the Buyer shall notify the Seller of the name of that transferee or person.



12.8 If the Buyer pays the Seller an amount in respect of VAT under clause 12.3 and HM Revenue & Customs note that all or part of it was not properly chargeable, the Seller shall repay the amount or relevant part of it to the Buyer. The Seller shall make the repayment promptly after the ruling, unless it has already accounted to HM Revenue & Customs for the VAT. In that case, the Seller shall apply for a refund of the VAT (plus any interest payable by HM Revenue & Customs), use reasonable endeavours to obtain it as speedily as practicable, and pay to the Buyer the amount of the refund and any interest when and to the extent received from HM Revenue & Customs.




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


13.2 The Parties irrevocably agree that the courts of England shall have non-exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement and that accordingly any Proceedings may be brought in such courts.





Signed by        

/s/ James Trail

on being signed by:      )    Authorised signatory





/s/ John Alan Reilly

        Authorised signatory
Signed by      )   


on being signed by:      )    Authorised signatory






          Authorised signatory



Signed by        


on being signed by:      )    Authorised signatory






        Authorised signatory
Signed by      )   

/s/ Sanjeev K. Mehra

on being signed by:      )    Authorised signatory

/s/ Sanjeev K. Mehra


Nigel Wright


/s/ Nigel Wright

          Authorised signatory



94577      Imad Hussain Mohammad Alkassab    93541      Mark Antony Earl
94483      Sandi Marianne Allcock    94669      Mark James Edwards
1585      Anthony Robert George Armstrong    94614      Leonard John Edwards
19484      Philip Robert Artell    94643      Richard Harry David Egan
94562      Martin John Ashworth    94688      Matthew David Eglin
94599      Christopher Jason Baker    93378      Trevor Ellis
24592      Michael John Ball    93373      Neil Edward Evans
24588      Peter Brian Barrett    94690      Matthew James Evans
93651      Colleen Barton    22213      Russell Evans
93286      Ronald Edward Benjamin    24007      Francis Leonard Field
93388      Christopher John Best    23488      Thomas Fitzmaurice
93287      George Stewart Blackwood    93648      Amanda Claire Ford
94468      Edward William Blackwood    94693      David Forshaw
18042      John Richard Boddy    94632      Kevin John Furlong
94563      Stephen John Boden    94667      Christopher Noel Gamett
94628      Steven Bolingbroke    93418      Andrew William Gittins
94584      John Bolton    94621      Andrew Gooding
21702      Paul Stephen Brackenbury    94673      Anthony Brian Gornall
94699      Allen Bradbury    92697      Philip Grady
24610      William James Breeze    94670      Michael Thomas Grant
94457      Annette Margaret Buchan    24603      Mark Griffiths
92539      Geoffrey Bull    94581      Andrew William Hayling
94663      Nicola Jayne Bunn    93158      Eric John Hewitt
94561      Mark Andrew Bums    94695      David Neil Hick
94590      Kevin Anthony Butters    22296      Timothy James Hicks
93617      Cheryl Jane Carpenter    94634      Gregory Eric Higgins
94630      Tim Carson    94652      Scott Charles Hodges
94660      Peter Denis Cavanagh    94684      Peter Charles Hodgson
19664      James Christopher Childs    24420      Christopher David Hodgson
94683      Paul Michael Chiocchi    94476      Charles Henry Houghton
94307      Alan John Clarke    94622      Marc Andrew Howard
21324      David Lee Clarkson    94656      Richard John Howe
94503      Linda Anne Cole    94619      Simon Kevin James Humphreys
94087      Robert Clive Connah    94645      Lee Robert Jackson
94600      Philip Michael Cooper    24601      Paul Erwyn James
94612      Leigh Andrew Corbishley    93255      Anthony Thomas Jane
94658      James Alex Coughlan    94594      Ian Barry Mark Jones
94597      Martin Rollings Creed    19521      Kenneth Gavin Jones
94681      Graham Craig Davidson-Guild    24378      Paul Jones
94591      Jason Davies    21742      Gareth Pierce Jones
21709      Llewellyn Gwilym Davies    22954      Mark Philip Jones
24611      Stephen Garry Davies    23386      Glen David Jones
94603      Peter Luke Dillon    93204      Kevin Jones
94647      Stuart Paul Dixon    18071      David Frank Jones
94498      Gary Dodd    94671      Adrian Jenkin Jones
19091      David Donovan    94672      Lynne Jones
94692      Jonathan Paul Dooley    24284      Simon Jones
94606      Thomas Rhys Doran    24254      Allan Joseph Jones

94680      Gaiy Brian Jones    24605      Colin John Robinson
24303      Sean Paul Kelly    20121      John Barry Ruddy
94691      Paul William Keogh    94532      Anthony David Salisbury
18826      John Neil Lawson    5181      Susan Elizabeth Sandall
21959      David John Leonard    93297      Alan John Sandland
94666      Helen Lloyd    93281      Ian Russell Seller
93645      Andrew Mark Donald Lusted    93231      Nigel David James Seymour
94659      Paul Alexander Macintyre    24338      Alan Geoffrey Shaw
94689      Joshua Andrew Marshall    8962      Mark Robert Shephard
94649      Paul Raymond Matthews    91145      Colin Singleton
24593      Ian Alexander Matthias    94698      Roger Eirian Smith
23394      Sean William McCrea    94585      Philip Adrian Smythe
94460      Stephen Peter McNally    94598      John Spruce
24318      Stuart Peter McNeilis    94675      Peter William Stephenson
94696      John Brisbane Melrose    94687      Dean Michael Stephenson
94605      Garry William Miller    22056      Mark Stopford
94637      John Mitchell    22379      Lee Gavin Swann
94650      Stephen Anthony Monnery    94604      Martin Philip Sykes
2918      Stephen James Morgan    3277      Keith James Symes
94654      Carl Morgan    23207      Neil Douglas Taylor
94644      Andrew Charles Morris    93638      Philip Andrew Taylor
94463      Karen Morris    94682      Robert Leslie Taylor
94686      Peter Mortimer    94664      William Huw Thomas
94657      Keith John Moseley    94613      Albert Wyn Thomas
94665      Benjamin James Naylor    94653      Philip David Thomas
23212      Francis J Neal    94607      James Michael Thomas
4002      Martin James Nicholls    94627      Peter Thompson
93052      Richard Laurence Nieto    3841      Philip John Thorp
93264      Bryan Kenneth Norris    94646      Robin Peter Wade
94638      Philip North    94633      Norma Wain
24602      Stephen John Oakley    23437      Christopher Neil Wainwright
94679      Stephen O’Neill    94694      Philip Robert Wallace
94615      John Meurig Owen    94617      Richard Bruce Watson
94678      Keith Palmer    94624      Karen Weaver
23764      Mark Dean Patane    94623      Kerry Weaver-Martin
92660      Agnes Roberts Pear    94642      Nigel Edwin Whiteman
24437      Steven Thomas Penman    93402      Kevan Ellis Whittaker
94602      Joseph Rodney Petrie    24234      Andrew Keith Williams
94625      Annette Charmian Pettman    24235      Christopher Lee Williams
94631      AlunPhennah    21081      Barry Wyn Williams
94641      Graham John Pickup    24238      Paul Williams
18466      Philip Graham Postle    93093      Glyn Edward Williams
93457      Howard Povey    94635      Mark Alan Williams
94334      Lionel John Powell    94474      Mandy Williams
24337      Raymond John Price    94620      James Williams
94475      Brian J Probert    94640      Gary Charles Woods
94677      Ian James Proud    24609      Stephen Neil Woodward
93208      Mark Andrew Rawcliffe    94674      Jason Wright
21381      Stephen Rawlinson    94697      Steven John Wright
94685      Jason Reynolds    94655      Richard Bronislaw Wyszynski
93395      Andrew Rimington        

Basic Info X:

Type: Business Transfer Agreement
Date: Dec. 4, 2007
State: Arkansas

Other info: