BUSINESS PURCHASE AGREEMENT FOR THE SALE AND PURCHASE OF THE BUSINESS AND ASSETS OF IVEX PHARMACEUTICALS LIMITED

Exhibit 10.22

 

DATED THE 28th DAY OF APRIL, 2004

 

IVEX PHARMACEUTICALS LIMITED (1)

 

XXXXX HOLDINGS, plc (2)

 

GAMBRO NORTHERN IRELAND LIMITED (3)

 

GAMBRO BCT, INC (4)

 

 

BUSINESS PURCHASE AGREEMENT

FOR THE SALE AND PURCHASE OF THE BUSINESS AND ASSETS OF

IVEX PHARMACEUTICALS LIMITED

 

 

XXXXX XXXXX

 

SOLICITORS

 

00 XXXXXX XXXXXX

 

XXXXXXX

 

XX0 0XX

 

TEL 00000 000000

 

FAX 00000 000000

 

REF RF/MT

 

CONTENTS

 

CLAUSE

    PAGE

1.

    INTERPRETATION    4

2.

    SALE AND PURCHASE    11

3.

    CONSIDERATION    12

4.

    COMPLETION    12

5.

    SELLER’S OBLIGATIONS PRIOR TO COMPLETION    14

6.

    RISK    15

7.

    POST COMPLETION    15

8.

    STOCK    16

9.

    RECEIVABLES    18

10.

    CONTRACTS, IVEX MARKETING AUTHORISATIONS AND IVEX MANUFACTURING LICENCES    19

11.

    PREPAYMENTS BY SELLER AND CUSTOMERS    21

12.

    EMPLOYEES    23

13.

    SELLER’S OBLIGATIONS AFTER COMPLETION    27

14.

    VALUE ADDED TAX    29

15.

    WARRANTIES    30

16.

    PROTECTION OF GOODWILL    35

17.

    ANNOUNCEMENTS, ETC.    37

18.

    ASSIGNMENT    37

19.

    COSTS    38

20.

    BUYER’S XXXXXXXXX    00

00.

    SELLER’S XXXXXXXXX    00

00.

    ENTIRE AGREEMENT    38

23.

    WAIVER, AMENDMENT    39

24.

    FURTHER ASSURANCE    39

25.

    NOTICES    40

26.

    COUNTERPARTS    41

27.

    GOVERNING LAW AND JURISDICTION    41

28.

    INVALIDITY    42

29.

    THIRD PARTY RIGHTS    43

 

SCHEDULE 1

    44

Allocation of Consideration

    44

SCHEDULE 2

    45

Warranties

    45

SCHEDULE 3

    68

Loose Plant

    68

SCHEDULE 4

    79

Contracts

    79

SCHEDULE 5

    81

Assumed Employees

    81

 

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SCHEDULE 6

    84

The Buyer’s Guarantee

    84

SCHEDULE 7

    86

The Seller’s Guarantee

    86

SCHEDULE 8

    88

Data Room Index

    88

SCHEDULE 9

    95

Business Intellectual Property and IP Licence

    95

 

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THIS AGREEMENT is made on 28 April 2004

 

BETWEEN:

 

(1) IVEX PHARMACEUTICALS LIMITED (No. NI16093) whose registered office is at Xxx Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxx XX00 0XX (the “Seller”);

 

(2) XXXXX HOLDINGS, PLC (No.25836) whose registered office is at Xxx Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxx XX00 0XX (the “Seller’s Guarantor”);

 

(3) GAMBRO NORTHERN IRELAND LIMITED (No.49717) whose registered office currently is at Xxxxxx Xxxxx, 00-00 Xxxxxx Xxxxxx, Xxxxxxx XX0 0XX but by the Completion Date will be Xxx Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxx XX00 0XX (the “Buyer”); and

 

(4) GAMBRO BCT INCORPORATED, a company incorporated in the State of Colorado, USA, whose registered office is at 00000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, XXX (the “Buyer’s Guarantor”).

 

RECITALS

 

(A) The Seller carries on the Business (as hereinafter defined) and is the beneficial owner, or is otherwise able to procure the transfer, of the Assets (as hereinafter defined).

 

(B) The Seller has agreed to sell, and the Buyer has agreed to purchase, the Business as a going concern and the Assets on the terms hereinafter set out.

 

(C) The Buyer’s Guarantor and the Seller’s Guarantor have agreed to guarantee the due performance by the Buyer and Seller respectively of their obligations hereunder.

 

THE PARTIES AGREE AS FOLLOWS:

 

1. INTERPRETATION

 

1.1 The following words and expressions shall, unless the context otherwise requires, have the following meanings:

 

“Accounts” means the audited financial statements (comprising a balance sheet, profit and loss account, cash flow statement, notes and directors’ report and auditors’ report) of the Seller for the financial period ended on the Accounts Date in the Agreed Form;

 

“Accounts Date” means 30 September 2003;

 

“Agreed Form” means, in relation to a document, in the form agreed between the parties on or prior to the date hereof and for the purposes of identification signed on their behalf;

 

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“Assets” means all assets, property or rights of the Seller relating to or connected with or belonging to or used in the Business which shall include the Goodwill, Books and Records, Contracts, Business Intellectual Property, Loose Plant, and Stock, together with the assets and rights and the benefit of any claims relating to the Business other than the Excluded Assets;

 

“Assumed Employees” means only those employees engaged in the Business as at Completion and whose names are listed in Schedule 5 of this Agreement;

 

“Books and Records” means the lists of customers and suppliers, books of account, financial records, and all other records (including, for the avoidance of doubt, VAT records) relating to the Business on whatever medium they are stored, other than any books and records contained within the Excluded Assets;

 

“Business” means the manufacturing, storage and supply of sterile fluid solution products for Ivex own branded products and the contract manufacturing, storage and supply of sterile fluid solution products for third parties as conducted by the Seller during the three year period preceding the Completion Date;

 

“Business Day” means any day upon which banks in Belfast are open for business;

 

“Business Information” means all information, know-how and techniques (whether or not confidential and in whatever form held) which in any way relates to: (i) all or any part of the Business and Assets; (ii) any products manufactured and/or sold or services rendered by the Business; (iii) any formulae, designs, specifications, drawings, data, manuals or instructions used by the Business; (iv) the operations, management, administration, or financial affairs of the Business (including, if any, business plans or forecasts, information relating to future business development or planning information relating to litigation or legal advice); and (v) the sale or marketing of any of the products manufactured and/or sold or services rendered by the Business, including, but without limiting the generality of the foregoing words, all customer names and lists, sales and marketing information (including but not limited to targets, sales and market share statistics, market surveys and reports on research);

 

“Business Intellectual Property” means the Intellectual Property owned by or licensed to the Seller or any member of the Seller’s Group and used wholly and exclusively in the Business, consisting of the Intellectual Property disclosed in the Data Room, together with the goodwill relating thereto;

 

“Buyer’s Accountants” means Pricewaterhouse Coopers of Xxxxxxxxxx Xxxxx, 0 Xxxxxxxxx Xxxx, Xxxxxxx XX0 0XX;

 

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“Buyer’s Guarantee” means the guarantee in the form set out in Schedule 7 to be given by the Buyer’s Guarantor pursuant to Clause 20;

 

“Buyer’s Group” means the Buyer, its holding companies and their respective subsidiaries, as well as the associated companies from time to time of such holding companies, all of them and each of them as the context admits;

 

“Buyer’s Solicitors” means L’Estrange & Xxxxx of Xxxxxx Xxxxx 00-00 Xxxxxx Xxxxxx Xxxxxxx XX0 0XX;

 

“Consideration” means the sum to be paid for the Assets other than Stock by the Buyer to the Seller on Completion in accordance with Clause 3;

 

“Completion” means the completion of the sale and purchase of the Business and Assets in accordance with Clause 4;

 

“Completion Date” means 10 May 2004 as of 12:01 AM (Northern Ireland);

 

“Contracts” means all contracts and arrangements relating to the Business entered into by the Seller prior to Completion but which are wholly or partly unperformed at Completion, including those set out in the list in the Agreed Form headed “Contracts” at Schedule 4 to this Agreement but excluding those contracts which are Excluded Assets;

 

“Damaged Goods” means Stock that is past or within six months of its expiration date or Stock which does not conform to any relevant specification as determined in accordance with Clause 8.1 of this Agreement;

 

“Data Room” means the data disclosed by the Seller to the Buyer before the date of this Agreement set out in the index attached at Schedule 11;

 

“Disclosure Letter” means the letter of even date with this Agreement, together with the attachments thereto, addressed by the Seller to the Buyer disclosing exceptions to the Warranties;

 

“Encumbrance” means any mortgage, charge, pledge, lien, security or other third party right or interest (legal or equitable) or restriction over or in respect of the use of the relevant Asset, security or right including any obligation to create the same;

 

“Excluded Assets” means any assets or rights and the benefit of any claims consisting of or comprised in the following:

 

  (a) cash in hand and at bank;

 

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  (b) the equipment provided by Fresenius Kabi Limited to the Seller pursuant to the contract between Fresenius Kabi Limited and the Seller dated 1st April 2000;

 

  (c) Receivables;

 

  (d) All items or assets of whatever nature owned by the Seller other than those set out in Schedule 3;

 

  (e) All production and quality related records including without limitation batch manufacturing records, laboratory records, equipment calibrations, equipment qualifications, process validations, method validations, standard operating procedures (SOPs), certificates of analysis (COAs) and audit reports in the possession of any member of Seller’s Group that relate to the Business;

 

“Goodwill” means the goodwill, custom and connection relating to the Business as at Completion together with the exclusive right for the Buyer and its successors and assigns to represent itself as carrying on the Business in succession to the Seller and together with the trade name “Ivex” or “Ivex Pharmaceuticals” associated with the Business;

 

“GRL” means Xxxxx Research Laboratories Limited (No NI10870) whose registered office is at Xxx Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxx XX00 0XX;

 

“holding company” has the meaning given to it in Article 4 of the Companies (Northern Ireland) Order 1986 (as amended);

 

“Intellectual Property” means patents, know-how, registered and unregistered trade marks and service marks (including any trade, brand or business names domain names, registered designs, design rights, utility models, copyright (including all such rights in computer software as disclosed in the Data Room, the Business Information and any databases), moral rights and topography rights (in each case for the full period thereof and all extensions and renewals thereof), applications for any of the foregoing and the right to apply for any of the foregoing in any part of the world and any similar rights situated in any country;

 

“Interim Period” means the period of up to 12 weeks (or such longer period as the parties may agree) commencing on the date of Completion;

 

“IP Licences” means any licences, authorisations and permissions in any form whatsoever whether express or implied, pertaining to the use, enjoyment and

 

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exploitation by (i) the Seller or any member of the Seller’s Group of any Intellectual Property or information in connection with the Business as carried on at Completion, and (ii) any third party of any Business Intellectual Property or information relating to the Business, including those specified in Schedule 12;

 

“Ivex Manufacturing Licences” means the facility approvals granted by the Medicines and Healthcare Products Regulatory Agency (“MHRA”), or its predecessor the Medicines Control Agency to the Seller in connection with the Business, current copies of which have been disclosed in the Data Room;

 

“Ivex Marketing Authorisations” means the product marketing authorisations granted to the Seller and GRL from the MHRA or its predecessor the Medicines Control Agency, the Irish Medicines Board (“IMB”) and Veterinary Medicines Directorate in connection with the Business, current copies of which have been disclosed in the Data Room;

 

“Lease” means a lease in the Agreed Form having an effective date as of the Completion Date between the Seller and the Buyer in relation to the Buyer’s use of the Property;

 

“Liabilities” means all liabilities of the Business at Completion;

 

“London Stock Exchange” means London Stock Exchange plc;

 

“Loose Plant” means the tangible assets of the Business, including Stability Units, movable plant, machinery, equipment, desk top computers, spare parts, tooling, vehicles and furniture used or intended for use in the Business, being those items listed in Schedule 3 of this Agreement;

 

“Management Accounts” means the unaudited management accounts of the Business and the Seller for the period from 1 October 2003 to 31 March 2004 comprising a balance sheet and profit and loss account for that period, copies of which are annexed to the Disclosure Letter;

 

“New Licences” means the licences and authorisations to be granted to Buyer for the Business by the MHRA and others;

 

“Pre-emption Agreement” means the pre-emption agreement in the Agreed Form having an effective date as of the Completion Date between the Seller and the Buyer in relation to the Property;

 

“Property” means that part of the property at Xxx Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx more fully described in the Lease;

 

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“Receivables” means all those amounts which are accrued, due and owing to the Seller directly and exclusively in connection with the Business as at Completion;

 

“Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 1981;

 

“Related Persons” means, in relation to any party, its holding companies and the subsidiary undertakings and associated companies from time to time of such holding companies, all of them and each of them as the context admits;

 

“Restricted Period” means the five (5) year period from and after the Completion Date;

 

“Restricted Territory” means the United Kingdom and the Republic of Ireland;

 

“Retained Employees” means any employee, consultant or agent of any member of Seller’s Group who are not listed in Schedule 5;

 

“Seller’s Accountants” means PricewaterhouseCoopers, Xxxxxxxxxx Xxxxx, 0 Xxxxxxxxx Xxxx, Xxxxxxx XX0 0XX;

 

“Seller’s Guarantee” means the guarantee set out in schedule 8 to be given by the Seller’s Guarantor pursuant to Clause 21;

 

“Seller’s Group” means the Seller, its holding company and their respective subsidiaries as well as the associated companies from time to time of such holding companies, all of them and each of them as the context admits;

 

“Seller’s Solicitors” means Xxxxx Xxxxx of 00 Xxxxxx Xxxxxx Xxxxxxx XX0 0XX;

 

“Services Agreement” means the agreement for services in the Agreed Form having an effective date as of the Completion Date between the Seller’s Guarantor, Rouvex Limited, the Buyer and the Buyer’s Guarantor in relation to the Property and the Business;

 

“Stability Units” means the stability rooms 2 and 3 located within the Property;

 

“Stock” means the raw materials, packing materials, work in progress and finished goods acquired or produced in the course of the Business at the Property and held by the Seller at Completion, but excluding any Damaged Goods;

 

“Stock Valuation” means a statement of the value of the Stock as determined by a full inventory of the Stock following a physical stock-take carried out at the Property with representatives of both the Seller and the Buyer present;

 

9

“Subsidiary” has the meaning given to it in Article 4 of The Companies Order 1986 (as amended);

 

“Taxation” means any tax and any duty, impost, levy or governmental charge in the nature of tax whether domestic or foreign and any fine, penalty or interest connected therewith (a) including (without prejudice to the generality of the foregoing) corporation tax, income tax, national insurance and social security contributions, capital gains tax, inheritance tax, capital transfer tax, value added tax, customs, excise and import duties, any deferred taxation and any other payment whatsoever which the Seller is or may be or become bound to make to any person as a result of any enactment relating to any of the foregoing (b) but excluding any stamp duty or stamp duty reserve tax payable on this Agreement or any instrument executed pursuant to this Agreement or on any agreement relating to the Business;

 

“Transaction Documents” means this Agreement as well as the Lease, the Services Agreement, the Pre-emption Agreement, the Buyer’s Guarantee, the Seller’s Guarantee and any other documents referred to in this Agreement pertaining to the sale and purchase of the Business and the Assets.

 

“UK Listing Authority” means the Financial Services Authority in its capacity as the competent authority for the purposes of Part VI of the Financial Services and Markets Xxx 0000;

 

“VAT” means Value Added Tax or any similar tax from time to time replacing it or performing a similar fiscal function; and

 

“Warranties” means the warranties given pursuant to Clause 15 and Schedule 2.

 

1.2 References to the parties hereto include, and in the case of individuals, their respective successors in title, personal representatives, heirs and estates; and references to the masculine gender shall include the feminine and vice versa.

 

1.3 References to statutes or statutory provisions include references to any orders or regulations made thereunder and references to any statute, provision, order or regulation include references to that statute, provision, order or regulation as re-enacted from time to time before the date hereof (subject as otherwise expressly provided herein) and to any previous statute, statutory provision, order or regulation amended, modified, re-enacted or replaced by such statute, provision, order or regulation before the date hereof.

 

1.4 References to persons shall include bodies corporate and unincorporated, associations, partnerships and individuals.

 

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1.5 Headings to Clauses and paragraphs are for information only and shall not form part of the operative provisions of this Agreement and shall be ignored in construing the same.

 

1.6 References to recitals, Clauses or Schedules are to recitals to, Clauses of and Schedules to this Agreement.

 

1.7 The recitals, the Schedules and documents in any Agreed Form comprise part of the operative provisions of this Agreement and references to this Agreement shall, unless otherwise expressly stated, include references to the recitals, the Schedules and documents in the Agreed Forms.

 

1.8 Any undertaking by a party not to do an act or thing shall be deemed to include an undertaking not to permit or suffer such act or thing to be done by another person for the benefit of the party.

 

1.9 References to “include” and “including” shall be deemed to be followed by the phrase “without limitation”.

 

1.10 References to the Ivex Manufacturing Licences and the Ivex Marketing Authorisations being granted or transferred to the Buyer shall be interpreted to include the cancellation of such licences and the issuance of new licences in the name of the Buyer corresponding to the Ivex Manufacturing Licences and the Ivex Marketing Authorisations, as applicable.

 

1.11 References to “disclosed” shall be interpreted as meaning fairly and accurately disclosed to the Buyer expressly for the purposes of this Agreement in the Data Room and/or the Disclosure Letter; and for the purposes of this definition, the expression “fairly and accurately” means that a matter shall be disclosed only if it has been disclosed with reference to a particular warranty identified by its number in Schedule 2.

 

2. SALE AND PURCHASE

 

2.1 Upon the terms and subject to the conditions of this Agreement, the Seller shall sell as beneficial owner and shall transfer or procure the sale and transfer of the Assets and the Business as a going concern to the Buyer, with effect from Completion, free from any Encumbrances, together with all accrued benefits and rights attaching thereto; and all property rights and risk in those Assets shall vest in the Buyer from Completion.

 

2.2 The Excluded Assets are not included in the sale and purchase pursuant to Clause 2.1.

 

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2.3 The Consideration for such sale and purchase shall be as specified in Clause 3.

 

2.4 The Property shall be leased by the Seller to the Buyer subject to the terms set out in the Lease.

 

3. CONSIDERATION

 

3.1 The Consideration shall be the sum of two million five hundred and seventy five thousand pounds (£2,575,000) payable in cash by telegraphic transfer on Completion, which shall be apportioned among the Assets as set out in Schedule 1.

 

3.2 Further payment shall be made by the Buyer to the Seller for the Stock which shall be determined in accordance with the provisions contained in Clause 8 and when so determined shall be paid to the Seller in accordance with the provisions of Clause 8.8.

 

3.3 Nothing in this Agreement shall pass to the Buyer or shall be construed as acceptance by the Buyer of any Liabilities, debt or other obligation of the Seller other than the obligations which are expressly and specifically assumed by the Buyer under the terms of this Agreement.

 

4. COMPLETION

 

4.1 Completion shall take place at the offices of the Seller (or at such other location as the Seller and Buyer agree) on the Completion Date.

 

4.2 On Completion, the Seller shall deliver or, in the case of Clauses 4.2.1 and 4.2.2, make available to the Buyer at the Property:

 

  4.2.1  the Books and Records;

 

  4.2.2  the Loose Plant and all other Assets hereby agreed to be sold, title to which can be transferred by delivery (and shall pass upon such delivery) and shall permit the Buyer to enter into and take possession of the Assets;

 

  4.2.3  duly executed assignments or registered user agreements of the Business Intellectual Property in the Agreed Form;

 

  4.2.4  releases under seal or certificates of non-crystallisation of charge of any Encumbrances in Agreed Form to which any of the Assets are subject, duly executed by those entitled to the benefit thereof;

 

12

  4.2.5  a counterpart of the Lease, the Pre-emption Agreement and the Services Agreement duly executed by the Seller;

 

  4.2.6  the Contracts and the Business Information duly written up to Completion;

 

  4.2.7  all such records (or copies if the originals have been properly retained) as are referred to in section 49 of the Value Added Tax Xxx 0000;

 

  4.2.8  all documents of title and certificates for the operation and use of, and all service documents within the possession of the Seller pertaining to the Loose Plant and the raw materials included in the Stock;

 

  4.2.9  a copy of the minutes of meetings held on the 28th April 2004 of the directors of the Seller, Rouvex Limited and the Seller’s Guarantor in the Agreed Form authorising the execution by that party of this Agreement and of any other documentation that may be necessary or desirable arising out of or in connection with this Agreement or the transactions contemplated thereby and appointing the relevant signatory or signatories to sign this Agreement and any such other documentation on its behalf; and

 

  4.2.10  a written resolution signed and dated the 9th May 2004 by the Seller’s shareholder approving the Seller’s change of name from “Ivex”.

 

4.3 Upon compliance by the Seller with the provisions of Clause 4.2, the Buyer shall:

 

  4.3.1  provide for the electronic transfer of funds of the sum referred to in Clause 3.1 to the client account of the Seller’s Solicitors at Bank of Ireland 0/0 Xxxx Xxxxxx Xxxxxxx XX0 0XX client account number 00000000 sort code 90-21-27 and the receipt of the Seller’s Solicitors therefor shall be a good discharge to the Buyer;

 

  4.3.2  deliver to the Seller a counterpart of the Lease, the Pre-emption Agreement and Services Agreement duly executed by the Buyer

 

  4.3.3  deliver to the Seller a copy of the minutes of a meeting of the directors of the Buyer and the Buyer’s Guarantor in the Agreed Form authorising the execution by that party of this Agreement and of any other documentation that may be necessary or desirable arising out of or in connection with this Agreement or the transactions contemplated thereby and appointing the relevant signatory or signatories to sign this Agreement and any such other documentation on its behalf.

 

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5. SELLER’S OBLIGATIONS PRIOR TO COMPLETION

 

5.1 The Seller undertakes to the Buyer that pending Completion:

 

  5.1.1  the Business will continue to be carried on in the same manner as it is presently carried on as regards the nature, scope and manner of conducting it and so as to maintain it as a going concern and will be conducted in a diligent and prudent manner in consultation with the Buyer on any material matters;

 

  5.1.2  it will use all reasonable endeavours to retain and preserve the Goodwill of and relationship with all customers and suppliers of the Business;

 

  5.1.3   it will use all reasonable endeavours to retain the full benefit of the Business Intellectual Property;

 

  5.1.4  the Seller will not knowingly do or knowingly omit or knowingly permit to be done any act or thing or permit the omission of any act or thing which is intended to or may impair or have a material adverse effect upon the Business or any part of it or the Assets;

 

  5.1.5  no long term, onerous or unprofitable contracts will be entered into by the Business;

 

  5.1.6   the Seller will not dismiss any of the employees, except in the event of gross misconduct, and will not engage or employ any person in the Business other than the Assumed Employees without the Buyer’s prior written consent (such consent not to be unreasonably withheld or delayed); and

 

  5.1.7  the Seller will not take any other action which is inconsistent with the provisions of this Agreement or which is, or might constitute or result in, a breach of any of the Warranties or which would or might make any of the Warranties misleading or inaccurate.

 

5.2 The Seller shall immediately disclose to the Buyer in writing any matter or thing which arises or becomes known to it before Completion which is or might be a breach of, or might reasonably be expected to cause or constitute a breach of, or is inconsistent with, or may render inaccurate or misleading, any of the Warranties or which is a breach of, or may otherwise give rise to a claim under, any other provision of this Agreement.

 

5.3

The Seller shall forthwith disclose to the Buyer in writing any matter or thing which arises or may arise or become known to it before Completion which has or is

 

14

 

likely to have a material and adverse effect upon the Business as presently conducted or upon the financial or trading position or prospects of the Business.

 

5.4 The Seller shall procure that until Completion the Buyer and its advisers shall be given promptly on request such facilities and information (including access to employees) regarding the Business or the Assets as they or any of them may reasonably require.

 

6. RISK

 

6.1 Pending the Completion Date, possession and risk of loss of the Assets shall be retained by the Seller. The Assets shall be at the risk of the Buyer as from the Completion Date.

 

6.2 The Seller shall continue to carry on the Business for its own benefit and at its own risk up to the Completion Date.

 

6.3 All profits and receipts of the Business (other than profits earned or receivable in respect of work in progress) and all losses and outgoings incurred or payable by the Business up to the Completion Date shall belong to, and be paid and discharged by, the Seller.

 

6.4 All profits and receipts of the Business and all losses and outgoings incurred or payable by the Business as from the Completion Date shall belong to, and be paid and discharged by, the Buyer.

 

6.5 Nothing in this Agreement shall have the effect of making the Buyer liable in any way under any guarantees or warranties given by the Seller to any customer in relation to products sold or services rendered by the Seller prior to the Completion Date, the liability for which shall remain absolutely with the Seller.

 

7. POST COMPLETION

 

7.1 The Buyer undertakes to the Seller that as soon as is reasonably practicable following Completion, the Buyer shall take all steps necessary to facilitate the payment of and shall pay all stamp duty in respect of the granting of the Lease to the appropriate tax authority.

 

7.2 The Buyer shall with effect from Completion indemnify the Seller against all liabilities, obligations, costs, claims and demands arising from or in respect of the non payment of stamp duty referred to in Clause 7.1 above.

 

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8. STOCK

 

8.1 Commencing within five (5) Business Days after Completion, the Seller shall perform a stock-take and within fourteen (14) Business Days of Completion, deliver to the Buyer the Stock Valuation. During the stock-take representatives of both the Seller and Buyer shall jointly use all their reasonable endeavours to identify any Damaged Stock. Any such Damaged Stock shall be destroyed or otherwise dealt with by the Seller (unless expressly agreed to the contrary). The Stock shall be valued on a basis consistent with those accounting standards, principles and policies applied in the preparation of the Accounts and otherwise prepared in accordance with generally accepted accounting standards, principles and policies in the United Kingdom. Further, the Seller undertakes and agrees that the Stock Valuation at Completion will not exceed two million and five hundred thousand pounds (£2,500,000.00).

 

8.2 The Stock shall be valued at cost excluding any VAT on the Stock paid by the Seller. The Seller shall comply with any reasonable requests of the Buyer’s representatives for evidence or information to verify the cost of the Stock.

 

8.3 The Buyer shall notify the Seller within fourteen (14) Business Days (or within such longer period as shall be agreed in writing between the parties) of receipt of the Stock Valuation, whether or not the Buyer accepts the calculations therein for the purposes of this Agreement.

 

8.4 If the Buyer notifies the Seller that it does not accept the Stock Valuation:

 

  8.4.1  it shall deliver to the Seller a notice in writing (the “Notice”) setting out its reasons in full for such non-acceptance and specify the adjustments which, in its opinion, should be made to the Stock Valuation in order to comply with the requirements of this Agreement;

 

  8.4.2  the parties shall, within fourteen (14) Business Days from the date of the Notice (the “Negotiation Period”), meet and discuss the objections of the Buyer and use their best efforts to reach agreement upon the adjustments (if any) required to be made to the Stock Valuation; and

 

  8.4.3  if, on expiry of the Negotiation Period, both parties have failed to agree and accept the Stock Valuation, Clause 8.6 shall apply.

 

8.5 If the Buyer is satisfied with the Stock Valuation (either as originally submitted or after adjustments agreed between the Seller and the Buyer) then the Stock Valuation (incorporating any agreed adjustments) shall constitute the agreed Stock Valuation for the purposes of this Agreement.

 

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8.6 In the event that the parties are not able to agree on the Stock Valuation by the expiry of the Negotiation Period pursuant to Clause 8.4 above, any of the matters in dispute with respect to the determination of the value of the Stock shall be referred for final settlement to a firm of chartered accountants nominated jointly by the Seller and the Buyer or, failing such nomination within fourteen (14) days after the Negotiation Period by either the Seller or the Buyer, nominated at the request of either of them by the President for the time being of the Ulster Society of the Institute of Chartered Accountants in Ireland. The accountants shall be entitled to call for submissions from both the Buyer and the Seller as to objections in relation to the Stock Valuation and may call for and inspect such documents as they may reasonably consider necessary. In making their determination, the accountants shall act as experts and not as arbitrators, their decision shall (in the absence of manifest error) be final and binding on the parties and their fees shall be borne and paid by the Seller and the Buyer in such proportions as the accountants determine.

 

8.7 The accountants appointed as experts pursuant to this Clause 8 shall, in giving their determination, state what adjustments (if any) are necessary to the Stock Valuation in such form as it stands at that time, in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give their reasons therefore and shall make such determination as soon as is reasonably practicable after their appointment and in any event by not later than thirty (30) days after their appointment.

 

8.8 The Buyer shall pay to the Seller in cash the lesser of £2,500,000 or a sum equal to the actual value of the Stock at Completion as stated in the Stock Valuation and as determined in accordance with the provisions of this Clause 8 in the following proportions and by the following dates:

 

  8.8.1  the first 25 per cent. of such value of the Stock by no later than ninety (90) days after the Completion Date;

 

  8.8.2  the second 25 per cent. Of such value of the Stock by no later than one hundred and eighty (180) days after the Completion Date;

 

  8.8.3  the third 25 per cent. of such value of the Stock by no later than two hundred and seventy (270) days after the Completion Date; and

 

  8.8.4   the final 25 per cent. of such value of the Stock by no later than one (1) year after the Completion Date.

 

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8.9 If any such payment is not made by the dates indicated in Clause 8.8 above, interest will be payable thereon, calculated on a daily basis (after as well as before judgment) from the due date specified in each of Clauses 8.8.1 - 8.8.4 to the date of actual payment at two per cent. per annum above the base lending rate of Bank of Ireland Belfast from time to time.

 

9. RECEIVABLES

 

9.1 The Buyer shall not acquire the Receivables, which shall remain the property and the responsibility of the Seller.

 

9.2 The Seller and the Buyer shall cause to be prepared from the accounting records of the Business, a list of the Receivables showing within 10 Business Days from the date hereof, (inter alia) the names of the debtors and the amounts owing to the Seller or any member of the Seller’s Group by each of the relevant debtors.

 

9.3 Notwithstanding that the Receivables are excluded from the Assets hereby agreed to be sold, the Buyer agrees that it will, as agent for and at no cost to the Seller, use all reasonable endeavours (but without being obliged to incur any expenditure) short of commencing legal proceedings to collect the Receivables (to the extent not collected upon Completion), hold the sums of money representing the same upon trust for the Seller, and record such receipt separately in its books subject to the following terms and conditions or such other terms, conditions or arrangements as may be agreed from time to time in writing between the Seller and the Buyer:

 

  9.3.1  Without the prior written consent of the Seller the Buyer shall not effect any settlement compromise or release any claim in respect of any of the Receivables nor, without such consent, institute, carry on, defend, compromise, abandon or submit to judgment in any legal proceedings or join in and submit to arbitration or give security or indemnities for costs, pay any sum of money into court or obtain payment of money lodged in court.

 

  9.3.2  If it becomes apparent that recovery of any of the Receivables is not likely to be possible within a reasonable period not to exceed ninety (90) days unless legal proceedings are instituted, the Buyer will advise the Seller in writing and furnish the Seller with particulars of the steps taken by the Buyer to effect recovery. Where the debtor in question is a continuing debtor of the Business after Completion, the Seller shall consult with the Buyer to determine what action is required in respect of the debtor(s) in question;

 

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  9.3.3  Within ten (10) Business Days of the end of each month commencing after Completion the Buyer shall provide the Seller with a statement of the Receivables collected in that month (or, in the case of the first such month, the period between Completion and the end of such month) and shall remit to the Seller the amounts so received during that period; and

 

  9.3.4  After the expiration of six (6) months from Completion the obligations of the Buyer under this Clause 9.3 to collect Receivables on behalf of the Seller shall cease, save that if thereafter any payments are made to the Buyer in respect of Receivables, the Buyer shall remit the same to the Seller as soon as practicable following receipt.

 

10. CONTRACTS, IVEX PRODUCT LICENCES AND IVEX MANUFACTURING LICENCES

 

10.1 The Seller undertakes with effect from Completion to assign to the order of the Buyer, or to procure the assignment to the order of the Buyer, all the Contracts which are capable of assignment without the consent of other parties or without breaching the terms of such Contracts.

 

10.2 In so far as any of the Contracts are not assignable to the Buyer without the agreement of or novation by or consent to the assignment from another party, this Agreement shall not constitute an assignment or attempted assignment if such assignment or attempted assignment would constitute a breach of such Contracts.

 

10.3 If any of the Contracts cannot be assigned or novated to the Buyer without the consent of a third party, then each of the Seller and the Buyer shall use their respective reasonable endeavours to obtain such consent.

 

10.4 In any case where the consent in Clause 10.3 above is refused or otherwise not obtained and until it is obtained or where any of the Contracts are incapable of transfer to the Buyer by assignment or by other means:

 

  10.4.1  the Seller shall hold those Contracts and any monies, goods or other benefits received thereunder as agent of and trustee for the Buyer and shall forthwith upon receipt of the same account for and pay or deliver to the Buyer such monies, goods and other benefits;

 

  10.4.2 

the Buyer shall perform those Contracts in accordance with their terms and conditions as sub-contractor to the Seller, provided that sub-contracting is permissible under the terms of the Contract in question; and where sub-contracting is not permissible, the Buyer shall perform the Contracts in accordance with their terms and conditions as agent for the Seller and

 

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indemnify and keep indemnified the Seller against all obligations, debts, costs, claims, demands, reasonably incurred expenses and damages in respect thereof incurred by the Buyer after Completion; provided the Buyer shall not be liable to pay or perform any such claims, costs, expenses or demands to the extent that such claims, costs, expenses or demands arise from or have increased due to any actions taken or omissions made by the Seller or any member of the Seller’s Group prior to the Completion; and

 

  10.4.3  the Seller shall give all reasonable assistance to the Buyer to enable the Buyer to enforce the rights of the Seller under the Contracts and shall at all times act with regard to the Contracts in accordance with the Buyer’s reasonable instructions from time to time and will provide access to all relevant books, documents and other information in relation to such Contracts as are within the Seller’s possession or the possession of the Seller’s Group and as the Buyer may reasonably request in writing from time to time; and the Buyer agrees to reimburse the Seller for any out of pocket expenses reasonably incurred in fulfilling the Seller’s obligations under this Clause.

 

10.5 To the extent that any payment is made to the Seller in respect of the Contracts on or after Completion, the Seller shall receive the same as trustee, shall record such payment separately in its books and shall account to the Buyer for the same within five (5) Business Days of receipt.

 

10.6 To the extent permitted by the competent authority, the Seller undertakes with effect from Completion to permit the Buyer to operate the Business under the Ivex Manufacturing Licences for the Interim Period or until the Buyer is granted New Licences, whichever is the earlier.

 

10.7

In consideration for the permission granted by the Seller in Clause 10.6 and for so long as the Buyer is operating under the Ivex Manufacturing Licences, the Buyer will procure that no acts are performed or amendments or omissions made to the quality systems, processes and procedures currently employed by the Seller or its agents or representatives in carrying on the Business which may affect either directly or indirectly the validity of the Ivex Manufacturing Licences and the Buyer shall hold harmless and indemnify and keep indemnified the Seller and each member of the Seller’s Group against all losses, claims, expenses and damage (including reasonable legal and other professional fees and expenses reasonably and properly incurred) that result from the Buyer being in breach of the provisions of this Clause 10.7; provided the Buyer shall not be liable to pay or perform any such claims, costs, expenses or demands to the extent that such claims, costs, expenses or demands arise from or have increased due to any

 

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actions taken or omissions made by the Seller or any member of the Seller’s Group prior to the Completion.

 

10.8 Both parties will use all their reasonable endeavours and perform all such acts that may be reasonably necessary during the Interim Period to ensure the New Licences are granted and each party will provide the other with any information they may reasonably request on the progress of such applications.

 

10.9 Pending the grant to the Buyer of the New Licences, the Seller shall:

 

  10.9.1  in so far as it can do so legally, hold the Ivex Marketing Authorisations as nominee and trustee for and on behalf of the Buyer and shall agree to transfer the Ivex Marketing Authorisations as the Buyer may from time to time reasonably direct in writing;

 

  10.9.2  knowingly do nothing which might render the Ivex Manufacturing Licenses and the Ivex Marketing Authorisations liable to be cancelled or revoked.

 

10.10  The Buyer confirms that it assumes all responsibility for regulatory, pharmacovigilance and medical information activities, effective from the Completion Date in respect of the Ivex Marketing Authorisations. The Buyer also confirms that it will utilise systems and procedures in place which comply fully with the provisions of The Medicines for Human Use (Marketing Authorisations etc) Regulations 1994 (S.I. 1994 No. 3144), Volume 9 of The Rules Governing Medicinal Products in the European Union (effective as of December 2001) and Article 98 of Directive 2001/83/EC.

 

11. PREPAYMENTS BY SELLER AND CUSTOMERS

 

11.1 The following provisions shall apply in respect of any prepayments to or by the Seller or Seller’s Group in relation to the Business only:

 

  11.1.1  the Seller shall account to the Buyer for all prepayments received by the Seller or the Seller’s Group in respect of any Contracts not wholly completed or discharged at Completion by the Seller to the extent that such prepayments exceed the actual costs incurred by the Seller (if any) in partially performing such Contracts prior to Completion; and

 

  11.1.2  the Buyer shall account to the Seller for all payments made by the Seller in respect of any Contracts not wholly completed or discharged at Completion by suppliers of goods and services to the extent that such payments exceed the value of goods and/or services already supplied prior to Completion.

 

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11.2 Save as expressly stated otherwise in the Services Agreements, all rates, water, gas, electricity and telephone charges, salaries, wages, and other outgoings and costs of a periodic nature which are chargeable by reference to a period commencing before and ending after Completion shall be apportioned on a time basis pro rata (provided that any such outgoings or costs chargeable by reference to the extent of the use of any property or rights shall be apportioned between the Seller and the Buyer according to the extent of such use).

 

11.3 Where any amounts are to be apportioned under this Agreement, the Seller shall provide the Buyer with details of the apportionments with supporting vouchers or similar documentation, and in the absence of dispute between the Seller and the Buyer, the appropriate payment shall be made by or to the Seller in accordance with the terms of this Clause 11. If the amount of any apportionment is in dispute, the matter shall be referred for final settlement to a firm of chartered accountants nominated jointly by the Seller and the Buyer or, failing such nomination, within fourteen (14) days after request by either the Seller or the Buyer, nominated at the request of either of them by the President for the time being of the Ulster Society of the Institute of Chartered Accountants in Ireland. The accountants shall be entitled to call for and inspect such documents as they may reasonably consider necessary. In making their determination, the accountants shall act as experts and not as arbitrators, their decision shall (in the absence of manifest error) be final and binding on the parties and their fees shall be borne and paid by the Seller and the Buyer in such proportions as the accountants determine. The amount determined to be due in accordance with this Clause shall be paid within fourteen (14) days of the date of determination, together with interest calculated on a daily basis (as well after as before judgment), from the date of determination until the date of actual payment, at the rate of two (2) per cent per annum above the base lending rate from time to time of Bank of Ireland, Belfast.

 

11.4 In relation to any expenditure or outgoing of the Business which is consideration for a taxable supply and which is apportioned under this Clause 11.4, that part of the amount of the expenditure or outgoing which is input tax for the purposes of VAT shall be apportioned to the party which is entitled to recover such input tax or obtain credit for it pursuant to the Value Added Tax Xxx 0000.

 

11.5 Any payment due between the parties pursuant to this Clause 11.5 (save as otherwise provided for in Clause 11.3) shall be paid within thirty (30) days of Completion.

 

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12. EMPLOYEES

 

12.1 The Seller and the Buyer acknowledge and agree that the sale and purchase of the Business and Assets pursuant to this Agreement will constitute a relevant transfer for the purposes of the Regulations and that such transactions will not operate so as to terminate any of the contracts of employment of the Assumed Employees.

 

12.2 The Buyer undertakes to the Seller that it shall give the Seller such information as will enable the Seller to perform the duty imposed on it by regulation 10.2 (d) of the Regulations.

 

12.3 The Buyer undertakes to indemnify the Seller against all liabilities, obligations, costs, claims and demands arising from or in respect of the Buyer’s treatment of any of the Assumed Employees after Completion provided that and to the extent that such claims do not arise due to any act or omission on the part of the Seller on or prior to Completion.

 

12.4 The Buyer shall discharge and hereby undertakes to indemnify the Seller against all liabilities, obligations, costs, claims and demands arising from or in respect of the Assumed Employees before Completion in respect of any breach of Regulation 10(3) of the Regulations by the Buyer. To the extent required by law, the Buyer will indemnify the Seller against any claim arising directly from the resignation of an Assumed Employee on or prior to Completion on account of any proposal of the Buyer to change terms and conditions of employment or working conditions for that Employee, provided (in both cases of the indemnifications in this clause 12.4) the Buyer shall not be liable to pay or perform any such claims, costs, expenses or demands to the extent that such claims, costs, expenses or demands arise from or have increased due to any actions taken or omissions made by the Seller or any member of the Seller’s Group prior to the Completion.

 

12.5 The Buyer agrees that for a period of 12 months after Completion the Assumed Employees will continue to receive basic salary and contractual benefits which are overall no less favourable than the salary and contractual benefits for the Assumed Employees at Completion.

 

12.6 If the contract of employment of any Assumed Employee is found (or alleged) not to have effect after Completion as if originally made with the Buyer, the Buyer agrees that:

 

  12.6.1  in consultation with the Seller, it will within fourteen (14) days of being informed of such finding or allegation make to the relevant Assumed Employee an offer in writing to employ him under a new contract of employment to take effect on the termination referred to below; and

 

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  12.6.2  any such offer of employment made by the Buyer will be on terms and conditions which, when taken as a whole, do not differ in any material way from the terms and conditions of employment of that Assumed Employee immediately before Completion (save as to the identity of the employer).

 

Upon that offer being made (or at any time after the offer should have been made if no offer is made), the Seller will terminate the Seller’s employment of the relevant Assumed Employee, and the Buyer shall indemnify and keep the Seller indemnified against all losses, damages, actions, awards, penalties, fines, proceedings liabilities (including any liability for Taxation), obligations, costs, claims, demands and expenses (including legal and other professional fees and expenses) arising out of the Buyer’s employment of that Assumed Employee from Completion until the termination of such employment.

 

12.7 The Seller undertakes to the Buyer:

 

  12.7.1  to perform and observe, pending Completion, all the Seller’s obligations and those of any of its predecessors (whether arising under common law, statute, equity or otherwise) under or in connection with the contracts of employment of the Assumed Employees (or any of the said obligations the Seller would have had under or in connection with the said contracts but for the Regulations);

 

  12.7.2  to pay to the Assumed Employees all sums to which they are entitled up to and including Completion (whether arising under common law, statute, equity or otherwise) including, without limitation, all wages and salaries, sick pay, maternity pay, any liability for Taxation, accrued holiday pay, expenses, accrued bonus, commission and other sums payable in respect of any period up to Completion;

 

  12.7.3  to comply in all respects with Regulation 10 of the Regulations (and to provide to the Buyer such information that the Buyer may reasonably request in writing in order to verify such compliance);

 

  12.7.4  not to alter (whether to take effect prior to, on or after Completion) any of the terms of employment or engagement of any of the Assumed Employees;

 

  12.7.5  not to make any deduction from the salary or other wages due to any of the Assumed Employees (otherwise than in respect of PAYE and National Insurance contributions) unless such deduction shall previously have been approved in writing by such of the Assumed Employees;

 

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  12.7.6  not to terminate or take any steps to terminate the contract of employment of, nor to dismiss (constructively or otherwise), any of the Assumed Employees other than in accordance with the provisions of paragraph 5.1.6 above;

 

  12.7.7  not to transfer or move or redeploy any of the Assumed Employees from working within the Business, or induce any such employee to resign his employment from the Business or to agree to transfer or move or be redeployed from the Business (without the prior written consent of the Buyer);

 

  12.7.8  to fully indemnify and keep the Buyer and the Buyer’s Group indemnified against all losses, damages, costs, actions, awards, penalties, fines, proceedings, claims, demands, liabilities (including any liability for Taxation), and expenses (including, legal and other professional fees and expenses) which the Buyer or any of such owners may suffer, sustain, incur, pay or be put to by reason or on account of or arising from:

 

  12.7.8.1  any failure by the Seller to comply with its obligations under this Clause 12.7

 

  12.7.8.2  any claim or other legal recourse by all or any of the Assumed Employees in respect of any fact or matter concerning or arising from employment with the Seller prior to Completion.

 

  12.7.8.3  any claim or other legal recourse by any trade union or staff association recognised by the Seller or employee representatives in respect of all or any of the Assumed Employees arising from or connected with the failure by the Seller to comply with its legal obligations to such trade union or staff association or employee representatives;

 

  12.7.8.4  the employment or termination of employment prior to Completion of any agent or contractor or the Assumed Employees of the Seller whose employment is transferred to the Buyer by the Regulations;

 

  12.7.8.5  any act or omission done or omitted to be done by the Seller in relation to the Assumed Employees or any other employee of the Seller which by virtue of the Regulations is deemed to be an act or omission of the Buyer;

 

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  12.7.8.6  without prejudice to sub-Clause 12.7.8.5 above, any claim or demand or other legal recourse against the Buyer by any other person or agent or employee or contractor of the Seller who claims (whether correctly or not) that the Buyer has inherited liability from the Seller in respect of them by virtue of the Regulations; and

 

  12.7.8.7  any claim or legal recourse by any Retained Employees or other individuals who have or allege to have provided services for or to the Seller’s Group in connection with the Business who are not Assumed Employees.

 

  12.7.8.8  without prejudice to clause 12.7.8.7 any costs or claims associated with the employment of Xxxxxxx Xxxxxxxxx and Xxxxxx Xxxxxxxxx and any costs or claims associated with the termination of his employment.

 

12.8 If, as a result of the provisions of the Regulations, any contract of employment or collective agreement not disclosed in the Disclosure Letter to the Buyer shall have effect as if originally made between the Buyer and any of the Assumed Employees or a trade union:

 

  12.8.1  the Buyer may, upon becoming aware of the application of the Regulations to any such contract of employment or collective agreement and in consultation with the Seller, terminate such contract or agreement in line with proper redundancy procedures, using reasonable endeavors to comply with any applicable Regulations, provided that such endeavours do not prejudice the indemnity provided by the Seller in clause 12.7; and

 

  12.8.2  the Seller shall indemnify and shall keep indemnified the Buyer against all losses, damages, costs, actions, proceedings, claims, demands, liabilities (including, without limitation, any liability for Taxation) and expenses (including, without limitation, legal and other professional fees and expenses) which the Buyer may suffer, incur, sustain, pay or be put to by reason or on account of or arising out of such termination or arising from such contracts of employment or collective agreement before and after Completion if such is not terminated by the Buyer.

 

12.9 Without prejudice to the other provisions of this Clause, the Seller shall, at its own expense, give the Buyer such assistance as the Buyer may reasonably require to contest any claim resulting from or in connection with this Agreement by any person employed in the Business at or prior to Completion.

 

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12.10  The Seller will, upon request by the Buyer and at the Seller’s expense, provide to the Buyer such information or documents as the Buyer may reasonably require relating to the terms and conditions of employment, pension and life assurance arrangements, health, welfare or any other matter concerning any of the Assumed Employees or relating to collective agreements, or collective or individual grievances of the Assumed Employees in the period prior to Completion.

 

13. SELLER’S AND BUYER’S OBLIGATIONS AFTER COMPLETION

 

13.1 The Seller shall promptly refer to the Buyer all enquiries relating to the Business and assign to the Buyer all orders directly and exclusively relating to the Business which it receives on or after Completion.

 

13.2 The Seller shall notify and keep informed the Buyer of any claims against the Seller brought by any third party in respect of any products or services supplied by the Seller prior to Completion in relation to the Business and the Seller shall not, without the Buyer’s prior written consent (such consent not to be unreasonably withheld or delayed), take any other steps in relation to such claims which might reasonably be expected to damage the commercial interests of the Buyer. If the Buyer considers that it is desirable to take preventative action with a view to avoiding such claims against the Seller, the Buyer shall bear the cost of that action.

 

13.3 On or for a period of five years after Completion (or such shorter period as shall be required under the governing law with respect to the particular type of information), the Seller will give or procure to be given to the Buyer all such information and other assistance (including, without limitation, particulars of customers, suppliers and others who have dealt with the Seller in connection with the Business) as the Buyer may reasonably require for the conduct of the Business and for the purpose of implementing the provisions of this Agreement. During the first two (2) years after Completion, the Seller shall bear the cost of such procurement; thereafter, the Buyer shall bear the cost of procurement and assistance.

 

13.4 Not later than two (2) Business Days after execution of this Agreement, the Seller shall send to each of the Assumed Employees a letter, in the Agreed Form, explaining that the Assumed Employee’s employment will be transferred to the Buyer at Completion pursuant to the Regulations.

 

13.5

The Seller will, if so required by the Buyer on or at any time after Completion and at the Buyer’s expense, send a circular (in Agreed Form) to persons who

 

27

 

have had dealings with the Seller in connection with the Business announcing the transfer to the Buyer of the Business and the Goodwill.

 

13.6 The Seller will give to the Buyer reasonable access to the books, accounts, records and returns of the Seller relating to or in connection with the Business as the Buyer may reasonably require (including the right to take copies and extracts on reasonable advance written notice) and will keep them in good order and, for a period of six (6) years following Completion, the Seller will also retain those items referred to in paragraph (e) of Excluded Assets and shall allow the Buyer reasonable access thereto the terms of which are set out in the Services Agreement.

 

13.7 The Seller shall indemnify the Buyer and keep it indemnified against all outgoings, debts, liabilities, obligations, actions, proceedings, costs, damages, claims and demands of whatever nature relating to and payable in respect of the Business or the Assets which are attributable to the period up to and including Completion and including any act or omission on the part of the Seller in relation to the Contracts or any defects in, or alleged defects in, goods supplied or services provided prior to the Completion and in particular any claim under any warranty or under the Sale of Goods Xxx 0000 or the Sale and Supply of Goods Xxx 0000; provided the Seller shall not be liable to pay or perform any such claims, costs, expenses or demands to the extent that such claims, costs, expenses or demands arise from or have increased due to any actions taken or omissions made by the Buyer prior to the Completion .

 

13.8 The Buyer shall indemnify the Seller and keep it indemnified against all outgoings, debts, liabilities, obligations, actions, proceedings, costs, damages, claims and demands of whatever nature relating to and payable in respect of the Business or the Assets which are attributable to the period after Completion; provided the Buyer shall not be liable to pay or perform any such claims, costs, expenses or demands to the extent that such claims, costs, expenses or demands arise from or have increased due to any actions taken or omissions made by the Seller prior to or following the Completion.

 

13.9 The Buyer will give to the Seller at Seller’s expense reasonable access to books, accounts, records, returns and personnel of the Seller relating to or in connection with the Business as the Seller may reasonably require (including the right to take copies and extracts in reasonable advance written notice) in the event that the Seller is required by any governmental agency or other investigative body to make such records available for inspection.

 

13.10 

During the period of six (6) years after Completion and without prejudice to any of the Warranties, if any information relating to the Business is not in possession

 

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of the Buyer or readily discoverable by the Buyer but is in the possession or under control of or available to the Seller or any other member of the Seller’s Group, the Seller shall procure that such information is provided to the Buyer promptly on request.

 

14. VALUE ADDED TAX

 

14.1 All amounts expressed in this Agreement as being payable by any party hereto are expressed exclusive of any value added tax which may be chargeable thereon, and the amount of any such value added tax shall be payable in addition thereto.

 

14.2 The Seller and the Buyer shall use all reasonable endeavours to secure that the conditions of article 5(1) of the Value Added Tax (Special Provisions) Order 1995 SI 1268 and of section 49 of the Value Added Tax Xxx 0000 are fulfilled so that the sale of the Business and Assets hereunder is properly treated as neither a supply of goods nor a supply of services for the purposes of value added tax.

 

14.3 The Seller and the Buyer shall each give notice to H.M. Customs and Excise of the transfer of the Business and Assets to the Buyer, to the extent such notice is required by law or regulation.

 

14.4 The Seller shall on Completion deliver to the Buyer all records referred to in section 49(1) of the Value Added Tax Xxx 0000 in respect of the Business and shall not make any request to H.M. Customs and Excise for such records to be retained by the Seller. The Buyer hereby undertakes to preserve such records for such periods as may be required by law and shall, during that period, afford the relevant government agencies and/or the Seller reasonable access to them at the request of the Seller.

 

14.5 In the event that H.M. Customs and Excise determine that value added tax is chargeable on the sale of the Business and Assets hereunder or any of them, the Seller shall immediately notify the Buyer of such determination and the Buyer agrees that such value added tax shall be in addition to the Consideration and the Buyer shall (against production by the Seller of tax invoices in respect thereof) pay the amount of any such value added tax forthwith to the Seller, but such payment shall be without prejudice to the right of the Buyer under this Agreement to call upon the Seller to make or join in an appeal against the aforesaid determination.

 

14.6

All value added tax payable in respect of goods and services supplied or deemed to be supplied by the Seller in connection with the Business prior to Completion, and all interest payable thereon and penalties attributable thereto, shall be paid to H.M. Customs and Excise by the Seller. The Seller shall be entitled to receive

 

29

 

and to retain for its own benefit (i) all reimbursement or credit from H.M. Customs and Excise for value added tax borne by the Seller on goods and services supplied to the Seller prior to Completion and (ii) any payments received in respect of value added tax overpaid to H.M. Customs and Excise prior thereto.

 

15. WARRANTIES

 

15.1 The Seller warrants to the Buyer in the terms of the Warranties which shall remain in full force and effect as of the execution of this Agreement as well as on Completion; affirms that such Warranties are made, where so qualified, based on the Seller’s knowledge after commercially reasonable inquiry; and acknowledges that the Buyer is entering into this Agreement in reliance on the Warranties.

 

15.2 Each of the Warranties shall be construed as a separate Warranty and (save as expressly provided to the contrary) shall not be limited by the terms of any of the other Warranties.

 

15.3 Save in the case of fraud or fraudulent concealment by the Seller, the Seller shall be under no liability in respect of any claim under the Warranties and any such claim shall be wholly barred and unenforceable unless written notice of such claim setting out full details of the relevant claim (including the grounds (if known) on which such claim is based and the amount claimed to be payable in respect thereof ) shall have been served upon the Seller by the Buyer promptly after it becomes likely that a claim will be made and, in any event:

 

  15.3.1  in the case of a claim under the Warranties (other than the Warranties relating to Taxation), by not later than 5.00 p.m. two (2) years from the date hereof;

 

  15.3.2  the Seller shall obtain and use its best endeavours to maintain in force a liability insurance in respect of the finished goods and Stock manufactured by the Seller prior to Completion naming the Buyer as a co-insured or beneficiary at no cost to the Buyer for the first two years following Completion. Thereafter, any premium in respect of such insurance for the third and fourth years of its term shall be paid to the Seller by the Buyer within fourteen Business Days of the Seller providing the Buyer with a copy of the appropriate insurance premium demand. The Seller’s obligation during the third and fourth years in respect of the Stock warranty shall be limited to its deductible amount thereunder; and

 

  15.3.3 

the liability of the Seller for any claim specified in such notice shall absolutely determine and cease (unless the amount payable in respect of the relevant claim has been agreed by the Seller within three months of the

 

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date of such written notice) if legal proceedings have not been instituted in respect of such claim by the due service of process on the Seller within six months of the date of such written notice. For the purpose of this clause 15.3, legal proceedings shall not be deemed to have been instituted unless they shall have been properly issued and validly served upon the Seller.

 

15.4 Save in the case of fraud or fraudulent concealment or in the case of claims related to Stock which are indemnified on a pound per pound basis, the Seller shall be under no liability in respect of any claim under the Warranties:

 

  15.4.1  where the liability of the Seller in respect of that claim would (but for this paragraph) have been less than £25,000 (a “de minimis claim”)

 

  15.4.2  unless and until and only to the extent that the liability in respect of a de minimis claim (not being a claim for which liability is excluded under clause 15.4.1 above) when aggregated with the liability of the Seller in respect of all other de minimis claims shall exceed £100,000.

 

15.5 Save in the case of fraud or fraudulent concealment, the aggregate liability of the Seller in respect of all claims under the Warranties other than for Stock shall not in any circumstances exceed the sum of two million five hundred and seventy five thousand pounds (£2,575,000); and as a separate cap on any claims relating to Warranties for the Stock, the aggregate liability of the Seller shall not exceed the Stock Valuation but only to the extent that the Seller has received payment for the Stock Valuation.

 

15.6 The Seller shall be under no liability in respect of any claim under the Warranties to the extent that the facts or circumstances giving rise thereto are disclosed in the Disclosure Letter or the Data Room.

 

15.7 No liability (whether in contract, tort or otherwise) shall attach to the Seller in respect of any claim under the Warranties to the extent that:

 

  15.7.1  the claim or the events giving rise to the claim would not have arisen but for an act or omission of the Buyer following execution of this Agreement where the Buyer knew or ought reasonably to have known that such act or omission may give rise to any such claim;

 

  15.7.2  the claim is based upon a liability which is contingent only, unless and until such contingent liability becomes an actual liability or until the same is finally adjudicated;

 

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  15.7.3  allowance, provision or reserve in respect of the matter giving rise to the claim shall have been made in the Accounts;

 

  15.7.4  the claim occurs wholly or partly out of or the amount thereof is increased as a result of:

 

  15.7.4.1  any change in the accounting principles or practices of the Buyer’s Group introduced or having effect after the Completion Date unless the same is introduced to bring the accounting principles and practices into line with generally accepted accounting principles and practices in the UK in relation to a business of the type carried on by the Business; or

 

  15.7.4.2  any increase in the rates of Taxation made after the date hereof; or

 

  15.7.4.3  any change in law or regulation or in its interpretation or administration by the courts of Northern Ireland, by the Inland Revenue or by any other fiscal, monetary or regulatory authority (whether or not having the force of law); or

 

  15.7.5  the loss or damage giving rise to the claim is recoverable by the Buyer’s Group under any policy of insurance maintained by either the Seller or the Buyer or would have been so recoverable but for any change in the terms of Stock insurance as a result of the Buyer’s operation of the Business since the date of this Agreement; and provided that the Seller shall remain liable for any amount not so recovered under the policy of insurance and shall indemnify and keep indemnified the Buyer in relation to any excess on such policy and any direct or consequential increase in insurance premiums payable by the Buyer as a direct result of any such recovery, or

 

  15.7.6  the claim relates to a claim or liability for Taxation and would not have arisen but for the Buyer’s winding-up or cessation after Completion of the Business or part of it.

 

15.8 In assessing any liabilities, damages or other amounts recoverable by the Buyer from the Seller as a result of any claim under the Warranties, there shall be taken into account any amount of any tax relief obtained by the Buyer’s Group and any amount by which any Taxation for which the Buyer’s Group is or may be liable to be assessed or accountable is reduced or extinguished, in each case when the relief or tax benefit arises directly or indirectly and solely in consequence of the matter which gives rise to such claim.

 

15.9

No liability will arise and no claim may be made under any of the Warranties to the extent that the matter giving rise to such claim is remediable unless within the

 

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period of 30 days following the Buyer becoming aware of such matter, the Buyer shall have given written notice thereof to the Seller and such matter shall not have been remedied to the reasonable satisfaction of the Buyer within the period of 30 days following the date of service of such notice.

 

15.10  Clause 15.11 shall apply in circumstances where:

 

  15.10.1  any claim is made against the Buyer’s Group which may give rise to a claim by the Buyer against the Seller under the Warranties other than the Warranties applying to Taxation (the “General Warranties”); or

 

  15.10.2  the Buyer’s Group is or may be entitled to make recovery from some other person of any sum in respect of any facts or circumstances by reference to which the Buyer’s Group has or may have a claim against the Seller under the General Warranties; or

 

  15.10.3  the Seller shall have paid to the Buyer’s Group an amount in respect of a claim under the General Warranties and subsequent to the making of such payment the Buyer’s Group recovers from some other person a sum which is referable to that payment.

 

15.11  In the circumstances provided in Clause 15.10, the Buyer shall and shall procure that the Buyer’s Group shall:

 

  15.11.1  (prior to taking any action against the Seller under the General Warranties in the case of Clause 15.10.1 and Clause 15.10.2 and subject to the Buyer’s Group being indemnified and secured to the reasonable satisfaction of the Buyer by the Seller against all reasonable costs and expenses which may properly be incurred by reason of such action) promptly and diligently take all such action as the Seller may request, and at Seller’s expense, including the institution of proceedings and the instruction of professional advisers approved by the Seller (always acting reasonably) to act on behalf of the Buyer’s Group to avoid, dispute, resist, compromise, defend or appeal against any such claim against the Buyer’s Group as is referred to in Clause 15.10.1 or to make such recovery by the Buyer’s Group as is referred to in Clause 15.10.2 or Clause 15.10.3, as the case may be, in accordance with the instructions of the Seller, to the intent that such action shall be delegated entirely to the Seller provided that the Buyer shall not be obliged to take any action which is reasonably likely to damage or prejudice the commercial interests of the Business;

 

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  15.11.2  not settle or compromise any liability or claim to which such action is referable without the prior written consent of the Seller, such consent not to be unreasonably withheld or delayed; and

 

  15.11.3  in the case of Clause 15.10.3 only, promptly repay to the Seller an amount equal to the amount so recovered or, if lower, the amount paid by the Seller to the Buyer, less in each case any reasonable costs incurred by the Buyer.

 

15.12  The Buyer shall as soon as is reasonably practicable:

 

  15.12.1  inform the Seller in writing of any fact, matter, event or circumstance which comes to Buyer’s actual notice or to the notice of the Buyer’s Group whereby it appears that the Seller is or may be liable to make any payment in respect of any claim under the Warranties or whereby it appears the Buyer’s Group shall become or may become entitled to recover from some other person a sum which is referable to a payment already made by the Seller in respect of such a claim;

 

  15.12.2  thereafter keep the Seller fully informed of all developments in relation thereto; and

 

  15.12.3  unless prevented from doing so by law or order of court, provide all such information and documentation (no matter how it is recorded or stored) as the Seller shall reasonably request in connection therewith and also in connection with any proceedings instituted by or against the Buyer’s Group under Clause 15.13.

 

With respect to any such recovery, the Seller shall pursue collection of the sum at its own cost and without injury to the Buyer’s operation of the Business.

 

15.13  No liability in respect of any claim for Taxation under the Warranties shall become payable:

 

  15.13.1  in the case of a claim for Taxation involving an actual payment of tax or the loss or set off of a relief against Taxation, prior to the date on which a payment of Taxation becomes finally due and payable under or in consequence of the claim for Taxation in question; or

 

  15.13.2  in the case of a claim for Taxation involving the loss of or reduction of a right to repayment of Taxation, prior to the day on which any repayment or increased repayment of Taxation which, but for such claim for Taxation would have been available, would have been due.

 

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15.14  In the event that the Seller is obligated or shall wish to take out insurance against any of its Warranty liabilities hereunder, the Buyer undertakes to provide such information as the prospective insurer may require before effecting such insurance.

 

15.15  The Buyer hereby warrants to the Seller that as of the date of this Agreement it has no knowledge of any fact which might lead to claims against the Seller under the Warranties.

 

15.16  The Buyer’s Group will take or procure the taking of all such steps and action as are necessary or as the Seller may require in order to mitigate any claim under the Warranties and the Buyer’s Group shall act in accordance with such request. Nothing in this agreement shall or shall be deemed to relieve the Buyer of any common law or other duty to mitigate any loss or damage incurred by it.

 

16. PROTECTION OF GOODWILL

 

16.1 In consideration of the Buyer entering into the sale and purchase of the Business and Assets, the Seller undertakes to and with the Buyer that it shall not and shall procure that the Seller’s Group shall not, whether directly or indirectly and whether alone or in conjunction with or on behalf of any other person, whether as principal, shareholder, director, employee, agent, consultant or otherwise:

 

  16.1.1  during the Restricted Period, carry on or be engaged, concerned or interested (save as the holder of shares or debentures in a listed company which confer not more than three per cent of the votes which could be cast at a general meeting of the company) in any business which is in competition with the Business as at Completion within the Restricted Territory;

 

  16.1.2  during the Restricted Period, solicit or endeavour to solicit the custom of any person, firm or company who or which was either at Completion or during the period of two (2) years prior to Completion a client or customer of the Seller;

 

  16.1.3  use any trade or domain name or e-mail address used by the Business or any name intended or likely to be confused with any such trade or domain name or e-mail address;

 

  16.1.4 

for a period of one (1) year from Completion, offer employment to or solicit or entice away or endeavour to solicit or entice away from the Buyer any Assumed Employees, whether or not such person would commit any

 

35

 

breach of his contract of employment or terms of engagement by reason of his leaving the service of the Buyer; PROVIDED THAT this restriction will not apply to any advertisement for recruitment made available generally through any recruitment agency or advertisement available to the public.

 

16.2 In consideration of the Buyer entering into this Agreement, the Seller undertakes to and with the Buyer that it shall and shall procure that Seller’s Guarantor and the Seller’s Group shall :

 

  16.2.1  unless required by law or the rules of any governmental or regulatory organisation, keep confidential and not use or reveal to any person any of the trade secrets, secret or confidential operations, processes or dealings or any other information relating primarily and directly to the Business including (without limitation) customer lists and names, sales targets and statistics, market share statistics, surveys and reports and pricing information relating to sales and purchases in respect of the Business until such time as the same falls into the public domain otherwise than by reason of a breach of this undertaking; or

 

  16.2.2  attempt or knowingly assist or procure any other person to do any of the foregoing things.

 

16.3 The provisions of Clause 16.1 shall not prevent or restrict any member of the Seller’s Group from acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in Clause 16.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions PROVIDED THAT the relevant member of the Seller’s Group shall within the following twelve months use their best endeavours to sell the Competitive Operations as soon as is reasonably practicable following such acquisition save that the relevant member of the Seller’s Group shall not be obliged to sell the Competitive Operations if those Competitive Operations comprise a minor part of the business or business of such company, group of companies or businesses acquired or in which the Seller’s Group has acquired an interest. For the purpose of this Clause 16.3, “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed nineteen per cent (19%) of the gross turnover per annum of the Company, group of companies or business acquired

 

16.4

The restrictions contained in this Clause 16 are considered reasonable by the parties hereto and the Seller acknowledges that, in the light of the total price paid under this Agreement and the manner of computation thereof, the nature of the

 

36

 

Business and all other relevant matters, the provisions of this Clause 16 are considered reasonably necessary for the protection of the interests of the Buyer.

 

16.5 In the event that any restriction in this Clause 16 shall be found to be unenforceable but would be enforceable if some part thereof were deleted or the area of operation or the period of application reduced, such restriction shall apply with such modification as may be necessary to make it legal and enforceable.

 

16.6 Each undertaking contained in this Clause 16 shall be construed as a separate undertaking and if one or more of the undertakings contained in this Clause 16 is held to be against the public interest or unlawful or in any way an unreasonable restraint of trade the remaining undertakings shall continue to bind any member of the Seller’s Group.

 

17. ANNOUNCEMENTS, ETC.

 

17.1 No party shall disclose the making of this Agreement nor its content (except those matters set out in the press release in the Agreed Form) and each party shall procure that each of its Related Persons and its professional advisers shall not make any such disclosure without the prior consent of the other party unless disclosure is to its professional advisers or required by law or the rules or standards of the London Stock Exchange or the Listing Rules of the UK Listing Authority or the rules and requirements of any other regulatory body provided that this Clause 17.1 does not apply to announcements, communications or circulars made or sent by the Buyer after the execution of this Agreement to customers, clients, regulatory agencies, employees, or suppliers of the Business to the extent that it informs them of the Buyer’s acquisition of the Assets and the Business or to any announcements containing only information which has become generally available.

 

17.2 The restrictions contained in Clause 17.1 shall apply without limit of time and whether or not this Agreement is terminated.

 

18. ASSIGNMENT

 

This Agreement is personal to the parties and accordingly, save for any assignment by the Buyer to a member of the Buyer’s Group, neither party without the prior written consent of the other (such consent not to be unreasonably withheld or delayed) shall assign, transfer or declare a trust of the benefit of all or any of any other party’s obligations nor any benefit arising under this Agreement.

 

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19. COSTS

 

Unless expressly otherwise provided in this Agreement, each of the parties shall bear its own legal, accountancy and other costs, charges and expenses connected with the sale and purchase of the Assets and the Business.

 

20. BUYER’S GUARANTEE

 

In consideration of the Seller entering into this Agreement, the Buyer’s Guarantor gives in favour of the Seller the Buyer’s Guarantee.

 

21. SELLER’S GUARANTEE

 

In consideration of the Buyer entering into this Agreement, the Seller’s Guarantor gives in favour of the Buyer the Seller’s Guarantee.

 

22. ENTIRE AGREEMENT

 

22.1 Each party, on behalf of itself and as agent for each of its Related Persons, acknowledges and agrees with the other party (each such party acting on behalf of itself and as agent for each of its Related Persons) that:

 

  22.1.1  this Agreement, together with any other Transaction Documents, constitutes the entire and only agreement between the parties and their respective Related Persons relating to the subject matter of the Transaction Documents;

 

  22.1.2  neither it nor any of its Related Persons has been induced to enter into any Transaction Document in reliance upon, nor has any such party been given, any warranty, representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as are expressly set out in the Transaction Documents and, to the extent that any of them has been, that party (acting on behalf of itself and as agent on behalf of each of its Related Persons) unconditionally and irrevocably waives any claims, rights or remedies which any of them might otherwise have had in relation thereto;

 

  22.1.3 

the only remedies available to it in respect of the Transaction Documents (and, where appropriate, to its Related Persons) are damages for breach of contract or Warranty and, for the avoidance of doubt, neither it nor its Related Persons, where appropriate, has any right to rescind or terminate any Transaction Documents either for breach of contract or for negligent or

 

38

 

innocent misrepresentation or otherwise, save in the event of fraud or fraudulent misrepresentation on the part of the Seller,

 

PROVIDED THAT the provisions of this Clause 22 shall not exclude any liability which any of the parties or, where appropriate, their Related Persons would otherwise have to any other party or, where appropriate, to any other party’s Related Persons or any right which any of them may have in respect of any statements made fraudulently by any of them prior to the execution of this Agreement or any rights which any of them may have in respect of fraudulent concealment by any of them.

 

23. WAIVER, AMENDMENT

 

23.1 A waiver of any term, provision or condition of, or consent granted under, this Agreement shall be effective only if given in writing and signed by the waiving or consenting party and then only in the instance and for the purpose for which it is given.

 

23.2 No failure or delay on the part of any party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

 

23.3 No breach of any provision of this Agreement shall be waived or discharged except with the express written consent of the Seller and the Buyer.

 

23.4 The rights and remedies herein provided are cumulative with and not exclusive of any rights or remedies provided by law.

 

23.5 No variation to this Agreement shall be effective unless made in writing and signed by all the parties.

 

24. FURTHER ASSURANCE

 

24.1 At any time after Completion, the Seller shall at the Buyer’s expense execute all such documents and do or procure to be done such acts and things as the Buyer may from time to time reasonably require for the purpose of vesting in the Buyer the Seller’s and the Seller’s Groups’ rights and interests in the Business and full legal and beneficial title to the Assets free from Encumbrance and giving to the Buyer the full benefit of this Agreement and the other Transaction Documents.

 

24.2

Each of the Seller and the Buyer covenants that it will give all assistance and accord every facility reasonably required by the Buyer’s Accountants, the Seller’s

 

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Accountants or any valuer or accountant appointed in accordance by the terms of this Agreement for the purposes of preparing any certificate, statement, accounts or making any determination necessary or desirable for the purpose of this Agreement, and shall allow them or him access to any assets, accounts, books, records or other information relating to the Business held by the Buyer or the Seller.

 

24.3 The terms of this Agreement shall, insofar as they are not performed at Completion and subject as specifically otherwise provided in this Agreement, continue in force after and notwithstanding Completion.

 

25. NOTICES

 

25.1 Any notice, demand or other communication given or made under or in connection with the matters contemplated by this Agreement shall be in writing and shall be delivered personally or sent by confirmed fax, registered post, prepaid first-class post (air mail if posted to or from a place outside the United Kingdom) or courier service:

 

In the case of the Seller and the Seller’s Guarantor to:

Xxxxx Holdings, Plc

 

Xxx Xxxxxxx Xxxx

Xxxxxxxxx

Xxxxx

Xxxxxxxx Xxxxxxx XX00 0XX

Fax:          02828 279448

Attention: Company Secretary

 

In the case of the Buyer to:

Xxx Xxxxxxx Xxxx

Xxxxxxxxx

Xxxxx

Xxxxxxxx Xxxxxxx XX00 0XX

Fax:          to be determined by the Completion Date

Attention: Company Secretary

 

In the case of the Buyer’s Guarantor to:

General Counsel

Gambro BCT, Inc.

00000 X. Xxxxxxx Xxxxxx

Xxxxxxxx, XX 00000

Fax: 000-000-0000

 

and shall be deemed to have been duly given or made as follows:

 

  (a) if personally delivered, upon delivery at the address of the relevant party;

 

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  (b) if sent by registered post or first class post within the United Kingdom, two business days after the date of posting as evidenced by postal receipt;

 

  (d) if sent by fax, when despatched as evidenced by the sender’s confirmation of deliver; and

 

  (e) if sent by courier, as of the time of delivery to the addressee;

 

provided that if, in accordance with the above provisions, any such notice, demand or other communication would otherwise be deemed to be given or made after 5.00 p.m. on a business day, such notice, demand or other communication shall be deemed to be given or made at 9.00 a.m. on the next business day.

 

25.2 A party may notify the other party to this Agreement of a change to its name, relevant addressee, address or fax number for the purposes of Clause 25.1 provided that such notification shall only be effective on:

 

  (a) the date specified in the notification 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 falling five business days after notice of any such change has been given.

 

26. COUNTERPARTS

 

This Agreement may be executed in any number of counterparts which together shall constitute one agreement. Any party may enter into this Agreement by executing a counterpart and this Agreement shall not take effect until it has been executed by all parties.

 

27. GOVERNING LAW AND JURISDICTION

 

27.1 This Agreement (and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its formation) shall be governed by and construed in accordance with the laws of Northern Ireland.

 

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27.2 Each of the parties to this Agreement irrevocably agrees that the courts of Northern Ireland shall have exclusive jurisdiction to hear and decide any suit, action or proceedings, and/or to settle any disputes, which may arise out of or in connection with this Agreement (respectively, “Proceedings” and “Disputes”) and, for these purposes, each party irrevocably submits to the jurisdiction of the courts of Northern Ireland.

 

27.3 Each party irrevocably waives any objection which it might at any time have to the courts of Northern Ireland being nominated as the forum to hear and decide any Proceedings and to settle any Disputes and agrees not to claim that the courts of Northern Ireland are not a convenient or appropriate forum for any such Proceedings or Disputes and further irrevocably agrees that a judgment in any Proceedings or Disputes brought in any court referred to in this Clause 27 shall be conclusive and binding upon the parties and may be enforced in the courts of any other jurisdiction.

 

27.4 Without prejudice to any other permitted mode of service the parties agree that service of any claim form, notice or other document (“Documents”) for the purpose of any Proceedings begun in Northern Ireland shall be duly served upon it if delivered personally or sent by registered post, in the case of:

 

  (a) the Seller to its registered office (marked for the attention of the Company Secretary);

 

  (b) the Buyer to its registered office (marked for the attention of the Company Secretary)

 

  (c) the Buyer’s Guarantor to the General Counsel in Lakewood, Colorado

 

or such other person and address in the United Kingdom as a party shall notify the other parties in writing from time to time.

 

28. INVALIDITY

 

If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect under the law of any jurisdiction having a bona fide interest in the provisions of this Agreement, such provision shall be modified to conform as closely as possible to the intent of the parties and:

 

  (a) the validity, legality and enforceability under the law of that jurisdiction of any other provision; and

 

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  (b) the validity, legality and enforceability under the law of any other jurisdiction of that or any other provision

 

shall not be affected or impaired in any way.

 

29. THIRD PARTY RIGHTS

 

The operation of the Contracts (Rights of Third Parties Act) 1999 is hereby excluded.

 

IN WITNESS whereof this Agreement has been executed by the authorized representatives of the parties or, where appropriate, as a deed to be effective on the date first above written.

 

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SCHEDULE 1

 

Allocation of Consideration

 

The Consideration payable pursuant to Clause 3.1 shall be apportioned among the Assets as follows:

 

     £

•      Goodwill

    1

•      Books and Records

    1

•      Contracts

    1

•      Business Intellectual Property

    1

•      Tangible Assets itemised in Schedule 3

    2,574,996

 

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SCHEDULE 2

 

WARRANTIES

 

PART A (GENERAL)

 

1. CAPACITY

 

1.1 Powers and authority

 

The Seller has all requisite corporate power to enter into and perform this Agreement together with all other Transaction Documents and the transactions and matters contemplated thereby and has taken all necessary action to authorise the entry into and performance of this Agreement, the other Transaction Documents and the transactions and matters contemplated thereby. This Agreement and all other Transaction Documents, when executed by the Seller, will constitute valid, binding and enforceable obligations on the Seller and the Seller’s Guarantor in accordance with their respective terms and the Seller does not require the consent, approval or authority of any other person to enter into or perform its obligations under this Agreement and its entry into and performance of this Agreement will not constitute any breach or default under any contractual, governmental or public obligation binding upon it and it is not engaged in any litigation or arbitration proceedings which might have an effect upon its capacity or ability to perform its obligations under this Agreement and no such legal or arbitration proceedings have been threatened against it.

 

2. ACCOUNTS

 

2.1 The Accounts

 

  2.1.1  comply with the provisions of The Companies (Northern Ireland) Order 1986 as applicable and have been prepared in accordance with the requirements of United Kingdom generally accepted accounting principles and practices and give a true and fair view of all the assets and liabilities and of the state of affairs, financial position and results of the Seller as at and up to the Accounts Date;

 

  2.1.2  make adequate provision for depreciation of the Assets, having regard to the Assets’ original cost and estimated life.

 

2.2 Accounting policy

 

The Accounts have been prepared on a basis consistent with the basis upon which the audited accounts of the Seller were prepared for the financial period ended 30 September 2002.

 

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2.3 Accounting and other records

 

  2.3.1  All books, accounts and records required by law to be maintained in connection with the Business have at all times been fully, properly and accurately maintained and are properly written up to date and will be so kept up to Completion, and all returns and payments for the purposes of VAT have been made.

 

  2.3.2  All such books, accounts and records referred to in paragraph 2.3.1 of this Schedule 2 Part A duly and accurately record all matters required by law to be entered therein and accurately present and reflect in accordance with generally accepted accounting principles and standards all transactions entered into in relation to the Business.

 

2.4 Valuation of Stock

 

The accounting policies and bases and the method of valuing Stock used in the preparation of the Accounts were the same as those adopted in the accounts of the Business for the period commencing 1 April 2002 and ending immediately preceding execution of this Agreement. Any slow-moving Stock and non-recoverable work-in-progress included in the Accounts were written down appropriately and any redundant or obsolete Stock included in the Accounts were wholly written-off and the value attributed to the remaining Stock, and the raw material included in work-in-progress and finished Stock did not exceed the lower of cost and net realisable value as at the Accounts Date.

 

2.5 Management Accounts

 

The Management Accounts have been properly prepared in accordance with good accounting practice and on a basis consistent with that previously adopted in preparing the Accounts; the Management Accounts fairly state the trading performance and profitability for the period(s) to which they relate; and (save as expressly disclosed therein) there were no unusual, exceptional, non-recurring or extraordinary items which materially affected such accounts.

 

3. CHANGES SINCE THE ACCOUNTING DATE

 

Since the Accounts Date:

 

3.1 the Business has been carried on in the ordinary and usual course, both as regards the nature, scope and manner of conducting the same and so as to maintain the same as a going concern;

 

3.2 the Business has paid its creditorswithin the times agreed with such creditors, and there are no debts currently outstanding that have been due for more than four (4) weeks;

 

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3.3 there has been no unusual change in the Stock levels of the Business;

 

3.4 the Business has not been adversely affected by the loss of or material reduction in orders from any customer or the loss of or material reduction in any source of supply or by any abnormal factor not affecting similar businesses to a like extent and the Seller is not aware of any facts that are likely to give rise to any such material adverse effects;

 

3.5 except for usual and customary wage increases, no material alterations have been made in the terms of employment or conditions of service of any Assumed Employees or in the pension or other benefits of any Assumed Employee or their dependents;

 

3.6 none of the Assets listed in Schedule 3 have been lost, damaged or destroyed;

 

3.7 there has been no material adverse change in the financial position or trading prospects of the Business nor so far as the Seller is aware is any such material change expected;

 

3.8 so far as the Seller is aware no member of the Seller’s Group has done or omitted to do anything that might prejudicially affect the Goodwill.

 

4. TITLE TO THE ASSETS

 

4.1 Except as disclosed in the Data Room or the Disclosure Letter, the Assets itemised in Schedule 3 together with the benefits accruing to the Buyer under the Lease and the Services Agreement, are in the opinion of the Seller, in all material respects those necessary for the continuation of the Business as carried on at Completion.

 

4.2 All documents which in any way affect the right, title or interest of the Seller in or to any of the Assets and which attract stamp duty have been duly stamped within the requisite period for stamping.

 

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5. LITIGATION

 

5.1 There are no litigation, arbitration, prosecution or other legal proceedings relating to the Business which are material to the Business which have been served on the Seller or the Seller’s Group and, so far as the Seller is aware, there are no claims, facts or events subsisting at the date hereof which are likely to give rise to any such proceedings and there are no judgements outstanding against the Seller which affects or may affect any of the Assets.

 

5.2 Details of all material customer claims, complaints or returns relating to the Business that have occurred during the twelve (12) months preceding the execution of this Agreement have been disclosed in the Disclosure Letter or the Data Room.

 

6. LICENCES

 

The Seller is not aware of any reason why any licences and permissions required for the carrying on of the Business should be suspended or revoked.

 

7. CONFIDENTIAL AGREEMENTS

 

7.1 Save as disclosed in the Disclosure Letter and so far as the Seller is aware no members of the Seller’s Group have entered into any confidentiality or other agreement which restricts the free use or disclosure of any information used in the Business and prior to the date hereof, the Seller is not aware of breach of any such agreement.

 

7.2 The Seller has not been notified of any breach of any legislation, orders, provisions, directions and conditions relating to the Assets or the conduct of the Business which would have a material adverse effect on the Business.

 

8. EMPLOYEES

 

8.1 The particulars of the Assumed Employees as disclosed in the Data Room show all remuneration and other benefits which the Seller is bound to provide to each Assumed Employee.

 

8.2 Since the Accounts Date, the Seller has not been engaged or involved in any material dispute with any Assumed Employee or any labour troubles involving the Business which are material and, so far as the Seller is aware, no industrial action involving such employees, official or unofficial, exists at the date hereof.

 

8.3

The Seller has disclosed to the Buyer in the Data Room true and complete copies of all contracts of employment and other documents relating to the employment of

 

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the Assumed Employees who are senior managers, directors or project managers and a sample contract of employment for all other employees.

 

8.4 Neither the Seller nor any member of the Seller’s Group has made any offer to employ any person in the Business which has yet to be accepted or rejected.

 

8.5 Details of persons who previously worked in the Business or are currently working in the Business who are on maternity leave or other leave of absence and are included as Assumed Employees are fully and accurately disclosed in the Data Room.

 

8.6 Neither the Seller nor any member of the Seller’s Group has offered or agreed any future variations in the terms or conditions of employment of any of the Assumed Employees.

 

8.7 All contracts of employment between the Seller and the Assumed Employees may be terminated by three months’ notice or less without giving rise to any claim for damages or compensation.

 

8.8 Full particulars of any existing or threatened litigation or dispute involving or relating to any of the Assumed Employees and of all matters and circumstances of which the Seller is aware which could give rise to any legal claim, right of action or other liability whatsoever in respect of any of them are disclosed in the Data Room.

 

8.9 With express reference to this warranty, full and up to date particulars of all collective agreements, arrangements and other understandings which the Seller or any member of the Seller’s Group have with any trade union, staff association or other body representing the employees engaged in the Business are disclosed in the Data Room and the Seller has disclosed to the Buyer in the Data Room all documents relating to such agreements, arrangements and understandings. The Seller has complied with all its obligations under Regulation 10 of the Transfer of Undertakings (Protection of Employment) Regulations 1981, the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 and under the aforementioned collective agreements, arrangements and understandings and there is no existing or threatened litigation or dispute involving or relating to any trade union, staff association or other body representing or willing to represent the said employees.

 

8.10 No notification of an intended application for Union Recognition under the Trade Union and Labour Relations (Northern Ireland) Order 1995 or under similar or related Northern Ireland or U.K. legislation, including the Employment Relations Xxx 0000 has been received by the Seller.

 

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8.11 The Seller is not aware of any disclosure or any application made to any relevant body under Public Interest Disclosure legislation in Great Britain or in Northern Ireland.

 

8.12 There is no existing or, so far as the Seller is aware, threatened industrial action or trade dispute involving or relating to the Assumed Employees engaged in the Business.

 

8.13 There are no existing or, so far as the Seller is aware, threatened enquiries or investigations involving or relating to the Business or the Assumed Employees by the Equality Commission or other similar authority.

 

8.14 There are no outstanding liabilities for industrial training levy or for any other statutory or governmental levy or charge relating to the Business.

 

8.15 The Seller has complied with the Fair Employment and Treatment (Northern Ireland) Order 1998 (“the Fair Employment Order”) in all respects.

 

8.16 (a)    The Seller has registered with the Equality Commission in accordance with Article 48 of the Fair Employment Order;

 

  (b) The Seller has filed appropriate monitoring returns with the Equality Commission within the prescribed time-limits and the Equality Commission has not rejected these or required further information;

 

  (c) The Seller has conducted a review of its employment practices within the last three years in accordance with Article 55 of the Fair Employment Order and has not been requested or required to amend or change the review or the recommendations in any way by the Equality Commission;

 

  (d) The Seller maintains proper records of employees and applicants as required by the Fair Employment Order and the Seller has a proper system for ensuring that the information is not misused in any way that contravenes the Fair Employment Order;

 

  (e) The Equality Commission has not made any recommendation, direction or notice under Articles 56-61 of the Fair Employment Order to the Seller;

 

  (f) The Seller is not in default nor an unqualified person as defined in Article 62 of the Fair Employment Order;

 

  (g) The Seller has not received any notification from the Equality Commission or elsewhere that any of its suppliers is an unqualified person as defined by Article 62 of the Fair Employment Order;

 

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  (h) The Seller has not been notified by the Equality Commission of any complaint made against it to the Fair Employment Tribunal or an Industrial Tribunal within the last twelve months, no questionnaire has been issued to the Seller in accordance with the Fair Employment Order or other discrimination legislation including the Sex Discrimination (NI) Order 1976, the Race Relations (NI) Order 1997 or the Disability Act within the last twelve months and there is no case outstanding with the Fair Employment Tribunal or Industrial Tribunal in which the Seller is involved or on appeal from it.

 

8.17 The Seller is not aware of any actual, threatened or potential claim to be made against it or any member of the Seller Group arising out of the provisions in respect of goods, services and facilities contained in the Fair Employment and Treatment (Northern Ireland) Order 1998, the Race Relations (Northern Ireland) Order 1997, the Sex Discrimination (Northern Ireland) Order 1976 or the Disability Act.

 

8.18 The Seller has disclosed in the Data Room and in the Disclosure Letter all arrangements and obligations in relation to the Assumed Employees.

 

9. THE CONTRACTS

 

9.1 Ultra Xxxxx

 

None of the Contracts are ultra xxxxx the Seller or any member of the Seller’s Group.

 

9.2 Full Force

 

To the best of the knowledge of any member of Seller’s Group after due and proper enquiry, all the Contracts are in full force and effect and have been duly complied with and nothing has occurred whereby any of the Contracts are or are likely to be subject to early termination or which has given or is likely to give rise to any claim under any of them by any party to any of them which is material to the Business.

 

9.3 Nature of the Contracts

 

The contracts to which the Seller or Seller’s Group is a party which have been disclosed include, to the best of the Seller’s knowledge after due and proper enquiry, any contract which:

 

  (a) was entered into otherwise than in the ordinary and usual course of the Business;

 

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  (b) is of an unusual or abnormal nature, or not fully on an arm’s length basis;

 

  (c) is of a loss-making nature (that is to say the contract is of a nature where the selling price received, after any normal discounts or rebates, is less than the total of (i) direct material costs, (ii) direct packaging material costs and (iii) direct labour costs associated with providing any such product or service to a customer of the Business,;

 

  (d) cannot readily be fulfilled or performed by the Seller or the Seller’s Group on time without exceptional expenditure of money; or

 

  (e) is of a long term nature (that is to say is for a fixed term of more than six months or incapable of performance in accordance with its terms within six months after the date on which it was entered into or undertaken);

 

  (f) is incapable of termination in accordance with its terms by the Seller on sixty (60) days’ notice or less

 

  (g) involves payment by the Seller by reference to fluctuations in the index of retail prices or any other index or in the rate of exchange for any currency;

 

  (h) involves the supply of goods the aggregate sales value of which will represent in excess of 10 per cent of the anticipated turnover of the Business in the twelve (12) months following Completion.

 

10. EFFECT OF AGREEMENT

 

10.1 So far as the Seller or any member of the Seller’s Group is aware, the execution and delivery of this Agreement and the fulfillment and performance of and compliance with the terms of this Agreement:

 

  (a) do not conflict with or violate the terms, provisions or conditions of any of the Contracts or any law, undertaking, judgment, order, injunction or decree of any court against the Seller’s Group;

 

  (b) do not entitle any person to terminate any existing contractual obligation.

 

10.2 The Seller nor any of the Seller’s Group is not aware of any intention of any significant customer of or supplier to the Business to cease in dealing or to substantially reduce the existing level of its dealings with the Business.

 

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11. INFORMATION SUPPLIED

 

11.1 All information contained in this Agreement and all matters contained in the Disclosure Letter and all other information relating to the Business given by the Seller or the Seller’s Solicitors to the Buyer or the Buyer’s Solicitors are true, accurate and complete in all material respects.

 

11.2 There is no fact or matter relating to the Business which is known to the Seller or any member of the Seller’s Group which has not been disclosed in the Disclosure Letter or the Data Room and the Seller is not aware of any matter which renders any such matters or information untrue, incomplete or misleading.

 

12. LOOSE PLANT

 

The Loose Plant is adequate for and fit for the purpose of carrying on the Business and is in reasonably good repair and condition and working order and has been regularly maintained and is used exclusively in connection with the Business.

 

13. STOCK

 

The Stock is fit for purpose and of merchantable quality; and is capable of being used effectively in the ordinary course of business; and the work-in-progress of the Business is at its normal level.

 

14. INSURANCE

 

14.1 All the Assets and the Property are and at all times prior to Completion will be insured to their full replacement or reinstatement value in accordance with the details disclosed in the Data Room.

 

14.2 So far as the Seller or any member of the Seller’s Group is aware, there are no outstanding claims or circumstances likely to give rise to a claim thereunder and, so far as the Seller or any member of the Seller’s Group is aware, nothing has been done or omitted to be done which has made or could make any policy of insurance void or voidable or whereby its renewal may be refused or its premiums are likely to be increased.

 

14.3 So far as the Seller or any member of the Seller’s Group is aware, none of the such policies of insurance is subject to any special or unusual terms or restrictions.

 

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15. STATUTORY RESTRICTIONS

 

15.1 The Seller has, so far as the Seller or any member of the Seller’s Group is aware, not committed or omitted to do any act or thing in relation to the Business which could give rise to any fine or penalty.

 

15.2 The Seller is not and has not been a party in relation to the Business to any agreement, practice or arrangement which in whole or in part:

 

  15.2.1  contravenes any of the provisions of the Restrictive Trade Practices Acts 1976 and 1977 (or is subject to registration under those Acts), the Resale Prices Xxx 0000, the Trade Descriptions Acts 1968 and 1972, the Fair Trading Xxx 0000, the Competition Xxx 0000 or the Competition Xxx 0000 (or is notifiable under such Act);

 

  15.2.2  contravenes any of the provisions of the Xxxxxxxx Xxxxxxxxxxx Xxx 0000 or Articles 85 or 86 of the EC Treaty (or any regulations or directives made pursuant to the Treaty) or the EEA Agreement; or

 

  15.2.3  contravenes any other anti-trust, anti-monopoly or anti-cartel legislation or consumer law, Act, Regulation, Order or the like made in or pertaining to the United Kingdom or other relevant territory.

 

15.3 The Seller is not and has not engaged in any anti-competitive practice, as defined in the Competition Xxx 0000, in relation to the Business.

 

15.4 No investigations or enquiries by or on behalf of any governmental or other body in respect of the Seller, the Business or any of the Assets are pending or in existence and the Business is not subject to any undertaking or order under United Kingdom or EC competition legislation or from any other regulatory body under the competition legislation in any other jurisdiction in which the Business is conducted.

 

15.5 So far as the Seller or any member of the Seller’s Group is aware, neither the Seller nor any of its officers, agents or employees has done or omitted to do any act or thing which is or could be in contravention or breach of or the subject of enquiry, investigation or proceedings under the provisions of any Act, Order, Regulation or the like whether made in or pertaining to the United Kingdom or elsewhere giving rise to any fine, penalty, default, proceedings or other such liability in relation to the Business or any of the Assets.

 

16. DEFECTIVE PRODUCTS/ SERVICES

 

There are no outstanding claims against the Seller in respect of defects in quality or delays in delivery or completion of contracts or deficiencies of design or performance of equipment or otherwise relating to liability for goods or services

 

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supplied or to be supplied by the Seller and, so far as the Seller or any member of the Seller’s Group is aware, no such claims are threatened or anticipated.

 

17. INSOLVENCY OF SELLER

 

17.1 No order has been made or petition presented, meeting convened or resolution passed for the winding up of the Seller nor has any receiver been appointed or any distress, execution or other process been levied in respect of the Business or the Assets or any of them.

 

17.2 No composition in satisfaction of the debts of the Seller or scheme of arrangement of its affairs or compromise or arrangement between it and either or both of its creditors or members or any class of either or both of its creditors or members has been proposed, sanctioned or approved.

 

17.3 No distress, distraint, charging order, garnishee order, execution or other process has been levied or applied for in respect of the whole or any part of the Business or the Assets.

 

17.4 No event has occurred causing, or which upon intervention or notice by any third party may cause, any floating charge created by the Seller to crystallise over the Business or the Assets or any of them or any charge created by it to become enforceable over the Business or the Assets or any of them nor has any such crystallisation occurred nor is such enforcement in process.

 

18. COMPLIANCE

 

18.1 So far as the Seller or any member of the Seller’s Group is aware, all legislation and all orders, provisions, directions and conditions relating to the Assets or the conduct of the Business (including VAT) have been duly complied with in all respects.

 

18.2 So far as the Seller or any member of the Seller’s Group is aware, all necessary licences, consents, permits, agreements, arrangements and authorities (public and private) have been, or are being, obtained to enable the Seller to carry on the Business effectively in the manner in which it is now carried on and all such licences, consents, permits, agreements, arrangements and authorities are valid and subsisting and the Seller knows of no reason why any of them should be suspended, cancelled or revoked or the benefit of them should not continue to be enjoyed by the Buyer or other owners for the time being of the Business and the Assets or any part of them.

 

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SCHEDULE 2

 

PART B

 

INTELLECTUAL PROPERTY

 

For the purposes of this Part B of Schedule 2, any reference to “Business Intellectual Property” shall include a reference to “IP Licences”.

 

1. Full details of all the Business Intellectual Property are disclosed in the Data Room which is complete and accurate in all material respects. All such Business Intellectual Property is used, enjoyed and exploited exclusively in connection with the Business.

 

2. Save in respect of any Business Intellectual Property which is the subject of a valid and enforceable IP Licence which has been granted to the Seller (details of which are disclosed in the Data Room, the Seller is the sole legal and beneficial owner of all Business Intellectual Property (including the subject matter thereof) free from all claims, liens, charges, equities, encumbrances, licences and adverse rights of any description. No Business Intellectual Property is held jointly or in common with any other person.

 

3. None of the Business Intellectual Property is subject to any challenge or attack by a third party or competent authority. All renewal and registration fees for the protection of the registered Business Intellectual Property have been paid.

 

4. Accurate and complete particulars of all IP Licences are disclosed in the Data Room. All such IP Licences are valid and enforceable. There are no other outstanding agreements or arrangements whereby a licence, sub-licence or other permission to use has been granted to or by, or is obliged to be granted to or by, the Seller in respect of any of the Business Intellectual Property owned or used by the Seller, save for those licences or agreements set out in Schedule 12.

 

5. Neither the Seller nor, so far as the Seller or any member of the Seller’s Group is aware, is any other party is in breach of any IP Licence and all such licences are in full force and effect and will not terminate or be capable of termination by reason of the execution and performance of this Agreement.

 

6.

So far as the Seller or any member of the Seller’s Group is aware, none of the activities involved in the conduct of the Business infringe or have infringed any intellectual property of third parties or constitute or have constituted breach of confidence, passing off or actionable unfair competition in any jurisdiction. No

 

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such activities give or have given rise to any obligation to pay any royalty, fee, compensation or any other sum whatsoever.

 

7. The Seller is not, and has not within the six years preceding the date of this Agreement, been party to or threatened with any legal proceedings relating to any Business Intellectual Property and the Seller is not aware of (and has not knowingly acquiesced in) any infringement of the Business Intellectual Property or any breach of confidence, passing off or actionable unfair competition in any jurisdiction in relation to the Seller or the Business.

 

8. The Seller has in its exclusive possession and control all Business Information used, enjoyed or exploited in the Business (or held with a view to such use, enjoyment or exploitation). None of the same is known or accessible to any person except the Seller, other than persons who have given the Seller written confidentiality undertakings in respect thereof that have been disclosed hereunder.

 

9. Save in the ordinary course of business or with its employees, the Seller has not entered into any confidentiality or other agreement, nor is subject to any duty, which restricts the free use or disclosure of such information as is referred to in paragraph 8 above.

 

10. There are no outstanding or potential claims against the Seller under any contract or under section 40 of the Patents Xxx 0000 for employee compensation in respect of any Intellectual Property.

 

11. Where information of a confidential nature has been developed or acquired by the Seller or any member of the Seller’s Group for the purposes of the Business in the five-year period prior to the date of this Agreement, such information (except insofar as it has fallen into the public domain through no fault of the Seller or any member of the Seller’s Group) has been kept strictly confidential and has not been disclosed otherwise than subject to an obligation of confidentiality being imposed on the person to whom the information was disclosed. The Seller is not aware of any breach of such confidentiality obligations by any third party.

 

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SCHEDULE 2

 

PART C

 

PENSIONS

 

1. Other than disclosed in the Data Room there are no agreements, arrangements, customs or practices (whether legally enforceable or not) for the payment of or contribution to any superannuation, pension, life assurance, death benefit, sickness or accident benefits schemes or arrangements in respect of the Assumed Employees or their dependants and no proposal to establish any such scheme or arrangement has been announced to the Assumed Employees.

 

2. As regards the Seller’s Scheme (which term, for purposes of this Schedule 2, Part C, is intended to mean the pension scheme offered by Seller for which Assumed Employees are eligible), full and accurate details of the Scheme have been disclosed as set out below:

 

  2.1 copies of all current Trust Deeds and Rules governing the Seller’s Scheme; and

 

  2.2 copies of the current Member’s Handbook and any announcement to Members which has not yet been incorporated into the handbook;

 

3. Full details of the Assumed Employees who are members of the Seller’s Scheme are disclosed in the Data Room and no other Assumed Employees are or will before Completion become members of the Seller’s Scheme.

 

4. All contributions due to be paid in respect of the Seller’s Scheme by the Seller and any of its officers or employees have been duly paid, and the rates at which contributions are being paid are in accordance with the advice contained in the latest actuarial report of the Seller’s Scheme.

 

5. The only participating employee in the Standard Life Occupational Pension Scheme is Xxxxx XxXxxxxx and all contributions due to be paid in respect of this scheme have been paid in full.

 

6. The Seller’s Scheme is an exempt approved scheme within the meaning of section 592 of the Income and Corporation Taxes Act 1988 and there is no reason why approval may be withdrawn.

 

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7. The Seller’s Scheme is a contracted-out scheme within the meaning of the Pension Schemes (NI) Xxx 0000 and there is in force a contracting-out certificate covering the Seller and there is no reason why the certificate should be cancelled.

 

8. All death in service and incapacity benefits provided by the scheme are fully insured and all insurance premiums due to be paid in respect of the Seller’s Scheme have been duly paid.

 

9. No power has been exercised to provide additional benefits in respect of any of the Assumed Employees or to admit any of the Assumed Employees on special terms.

 

10. There are no actions, proceedings or claims (other than routine claims for benefits) outstanding, pending or threatened by the Assumed Employees in respect of the Seller’s Scheme relating to any act, event, omission or other matter arising out of or in connection with the Seller’s Scheme.

 

11. The Seller’s Scheme has, so far as the Seller is aware, at all times complied with and been administered in accordance with all applicable laws, regulations and requirements (including without limitation those of the Board of the Inland Revenue and of trust law).

 

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SCHEDULE 2

 

PART D

 

PROPERTY

 

1. In relation to the Lease, VAT is not currently chargeable on the rent or any other payment to be made under the Lease and no election has been made to date by Seller to waive exemption from VAT in respect of the lease.

 

2. The Seller has not received written notice of and is not aware of any allegation of breach of the requirements of:

 

the Clean Air (NI) Order 1981

the Construction (Design and Management) Regulations (NI) 1995 SR 209.

the Factories Act (NI) 1965

the Offices and Shop Premises Act (NI) 1966

the Fire Services (NI) Order 1984

the Health and Safety at Work etc. (NI) Order 1978

the Pollution Control and Local Government (NI) Order 1978

the Environmental Protection Xxx 0000

the Waste and Contaminated Land (NI) Order 1997

the Industrial Pollution Control (NI) Order 1997

the Food and Environmental Protection Xxx 0000

the Planning (NI) Order 1991

the Water and Sewerage Services (NI) Order 1973 (as amended)

the Water (NI) Order 1999

the Radioactive Substances Xxx 0000 or

the Public Health Acts

 

or other legislation concerning health, safety or environmental matters or any regulations, orders, notices or directions made under any of such legislation which in any such case affect any of the Property.

 

3. Where required, a fire certificate has been issued in respect of the Property.

 

4. So far as the Seller or any member of the Seller’s Group is aware (and without having obtained a survey thereof) there are (and there have been) no structural or other defects in respect of the buildings and structures on or comprising any of the Property.

 

5. The Seller, as the landlord, has good title to grant the Lease;

 

6.

So far as the Seller is aware, no written notices of breaches of any covenants or conditions have been received by the Seller from the landlords of the Superior Leases

 

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nor have the landlords of the Superior Leases refused to accept the rent payable pursuant to the Superior Leases (if demanded);

 

7. “The Superior Leases” shall mean a lease dated 30th November 1990 between the Department of Economic Development (1) and the Lessor (2) as comprised in Folio AN22184L County Antrim and a lease dated 21st May 1998 between the Department of Economic Development (1) and Xxxxx Limited (2) (whose interest is now vested in the Lessor) as comprised in Folio AN46925L County Antrim copies of which leases have been provided to the Lessee prior to the execution of this Lease;

 

8. So far as the Seller is aware, the Property complies in all respects with current fire regulations and the current requirements of the insurers of the Property; and

 

9. So far as the Seller is aware, and without having obtained any survey there are no latent or patent defects in the buildings and structures on or comprising the Property and the Seller has not received any notice regarding or relating to any material used in the construction of the buildings and its structures on or comprising the Property.

 

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SCHEDULE 2

 

PART E

 

TAXATION

 

1. The Seller is not involved in any dispute with the Inland Revenue, Customs & Excise or other appropriate fiscal authority concerning any matter in any way affecting either the Business or any of the Assets to be transferred under this Agreement.

 

2. No circumstances exist whereby any power within section 212 of the Inheritance Tax Act 1984 could be exercised in relation to any of the Assets.

 

3. There is no Inland Revenue charge over any of the Assets outstanding for unpaid inheritance tax as provided by sections 237 and 238 of the Inheritance Tax Xxx 0000.

 

4. None of the Assets are or could be subject to the Value Added Tax Capital Goods Scheme provided for in Part XV of the Value Added Tax Regulations 1995 (SI 1995/2518).

 

5. Neither the Seller (nor any relevant associate as defined in Schedule 10 of the Value Added Tax Act 1994) has elected to waive exemption (or applied for written permission to elect) in accordance with that Schedule in relation to the Property (or any of the Assets which constitute an interest in or right over land).

 

6. None of the Assets are chargeable assets of a business which, if transferred to a body corporate treated as a member of a group under section 43 of the Value Added Tax Xxx 0000 as a going concern, would give rise to a liability on that body corporate or the representative member of the group of which that body corporate is a member under section 44 of the Value Added Tax Xxx 0000.

 

7. There is no reason why any part of the Consideration payable by the Buyer that is apportioned under this Agreement to those of the Assets which are plant or machinery for the purposes of Part 2 of the Capital Allowances Act 2001 should not, assuming such apportioned Consideration represents capital expenditure incurred for the purposes of the Buyer’s trade, qualify in full for writing down allowances; none of such Assets are leased (as in the meaning of section 67 of such Act); and the Seller accepts that no election may be made in respect of any of such Assets pursuant to section 267 of such Act.

 

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8. In respect of any Assets which are plant and machinery for the purposes of Part 2 of the Capital Allowances Act 2001 and which are fixtures (as defined in section 173(1) of the Capital Allowances Act 2001) at Completion either (a) no person has been or will have become entitled to allowances in respect of any Expenditure incurred on the provision of the fixture, or (b) if any person has become so entitled that person has been, is or will be required to bring the disposal value of the fixture into account under section 24 of the Capital Allowances Act otherwise than by virtue of subsection (7) of section 6.1.

 

9. None of the Contracts, other than any relating to the acquisition of the Assets, involve any future liabilities which when incurred will not be deductible in computing profits for corporation tax purposes.

 

10. The Inland Revenue has not agreed to operate any special arrangement (being an arrangement which is not based on a strict application of the relevant legislation) in relation to the Business, whether in respect of benefits provided to its officers or employees, the valuation of its stock, the depreciation of its assets or any administrative or other matter whatsoever.

 

11. None of the Assets are wasting assets within section 44 of the Taxation of Chargeable Gains Xxx 0000 which do not qualify for capital allowances.

 

12. All documents in the possession or under the control of the Seller which establish or are necessary to establish the title of the Seller to the Assets have been duly stamped and any applicable stamp duties or charges in respect of such documents have been duly accounted for and paid, and no such documents which are outside the United Kingdom would attract stamp duty if they were brought in to the United Kingdom.

 

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SCHEDULE 2

 

PART F

 

ENVIRONMENTAL AND HEALTH AND SAFETY

 

1. Interpretation

 

In this Schedule:

 

         “Environment”

    means all or any of the air, water and land including air within buildings and other material or man-made structures above or below the ground;

         “Environmental Laws”

    means all laws, regulations, codes of practice, common law, regulations, directives and other measures imposed by any relevant body to which the Business or the Property is or has been subject in so far as they relate to the pollution or protection of the Environment or the protection of the health of humans, animals or plants;

         “Environmental Licences”

    means any permits, licences, consents or other authorisations required under any Environmental Laws for the operation of the Business and the occupation or use of the Property;

         “Hazardous Substances”

    means any material or artificial substance capable of causing Harm to man or any other living organism or the Environment;

         “Harm”

    means harm to the health of living organisms or the Environment, and in the case of human beings, includes harm to his property; “harmful” has a corresponding meaning;

         “Health and Safety Laws”

    means all applicable statutes, statutory legislation, common law, treaties, regulations, directives, codes of practice, guidance notes including but without limitation the Xxxxxxxxx Xxx 0000, the Offices, Shops and Railway Premises Xxx 0000, the Fire Precautions Xxx 0000, the Health and Safety at Work etc. Xxx 0000 and the Construction (Design and Management) Regulations 1994 concerning the health and safety of those who work for the Business, whether as employees or otherwise, visit the Property or are in any way affected by the activities of the Business or by persons working for the Business.

 

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2. Environmental Warranties

 

2.1 So far as the Seller or any member of the Seller’s Group is aware, the Seller has obtained and complied at all times with all Environmental Licences which are in full force and effect and there are no facts or circumstances which may lead to revocation, suspension, variation or non-renewal of such Environmental Licences.

 

2.2 The Business has at all times been operated in compliance with Environmental Laws and the Business and the Property comply with all conditions, limitations, obligations, prohibitions and requirements contained in any Environmental Laws and there are no facts or circumstances which may lead to any breach of Environmental Laws.

 

2.3 All information provided by and on behalf of the Seller to any statutory authority and all records and data required to be maintained by the Seller under the provisions of any Environmental Laws regarding the operation of the Business or any processes carried on at or emissions, discharges or waste disposal from the Property is complete and accurate.

 

2.4 No Hazardous Substances have been emitted from the Property.

 

2.5 There have been no claims, investigations or other proceedings against or threatened against the Seller or any of its directors, officers or employees in respect of Harm to the Environment caused by the operation of the Business or occupation of the Property, under Environmental Laws or for any other breach or alleged breach of any Environmental Licence and there are no facts or circumstances which may lead to any such claims, investigations or proceedings.

 

2.6 The Seller has adequate environmental insurance cover having regard to the operation of the Business. No claims have been made or are contemplated under such insurance policies.

 

2.7 There have been no landfills, underground storage tanks or mining operations (whether permitted by Environmental Laws or otherwise) carried out at the Property and no such operations are proposed by the Seller.

 

2.8 The Seller has never been required to hold nor has the Seller held or applied for a waste disposal licence or waste management licence under any Environmental Laws in respect of the Business or Property.

 

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2.9 Copies of all current environmental audit reports and assessments, assessment on substances hazardous to health obtained by the Seller, correspondence between the Seller and any relevant enforcement authority, copies or details of any waste disposal contracts to which the Seller is a party have been disclosed to the Buyer in the Data Room.

 

3. Health and Safety Warranties

 

3.1 So far as the Seller or any member of the Seller’s Group is aware, the Busineass complies with all conditions, limitations, obligations, prohibitions and requirements contained in any Health and Safety Laws and there are no facts or circumstances which will result in any breach of any Health and Safety Laws in respect of the Business.

 

3.2 The Seller has carried out all necessary risk assessments in respect of the Business as specified under the Health and Safety Laws and the current results of any such assessments and any review of such assessments have been considered by the Seller in giving these warranties. The Seller has disclosed all the facts and circumstances which were taken into account in preparing any such assessment.

 

3.3 A list of all current health and safety policy statements prepared by the Seller, health and safety reports and assessments prepared by or for the Seller or any member of the Seller’s Group, audits, records of accidents and reportable diseases, permits, notifications, certificates and records required by Health and Safety Laws to be prepared by or for the Seller or any member of the Seller’s Group, together with any correspondence for the period from the Accounts Date to the date of this Agreement between the Seller and any relevant enforcement authority, including but not limited to the Health and Safety Executive and the relevant local authority, has been disclosed to the Buyer in the Data Room; and any such documentation created by or delivered to Seller prior to the Completion Date will be disclosed to the Buyer immediately.

 

3.4 No correspondence has been received by the Seller from any occupier, employee, contractor, trade union, staff organisation, local authority or statutory official that the Property suffers from defects in design, construction or fitting out which adversely affects the health of people working at or visiting the Property.

 

3.5 The Seller has not received any prohibition or improvement notices from any enforcement body, including but without limitation the Health and Safety Executive and the relevant local authority, with regard to breaches of Health and Safety Laws or otherwise in respect of the Business or any other activities of the Seller on the Property.

 

66

3.6 There have been no claims, proceedings or, to the Seller’s knowledge, investigations against or threatened against the Seller or any of its directors, officers or employees in respect of accidents, injuries, illness, disease or any other harm to the health and safety of employees, contractors or any other persons caused by breaches of Health and Safety Laws or otherwise in respect of the Business or other activities of the Seller on the Property; and, so far as Seller or Seller’s Group is aware, there are no facts or circumstances that may lead to any such claims, proceedings or investigations.

 

3.7 The Seller has adequate employer’s liability and public liability insurance cover having regard to the activities carried out by the Business or otherwise on the Property. No claims in respect of health and safety have been made against the Seller.

 

3.8 All information provided by and on behalf of the Seller to any statutory authority and all records and data required to be maintained by the Seller under the provisions of any Health and Safety Laws in respect of the Business are complete and accurate.

 

67

 

SCHEDULE 3

 

Loose Plant

 

Total value £ 2,574,996

 

Plant No.
   

Description

   

Location

911    Well water press unit    Xxxxxx Xxxxx
000    Xxxxxxxx filler    Fill Room 2
960    Hot foil printer atlas    Print Room 3
961    Hot foil printer PB & E ST25    Print Room 1
962    Hot foil printer PB & E SK25    Print Room 2
992    Bassaire filter    Fill Room 1
993    Bassaire filter    Fill Room 1
994    Bassaire filter    Fill Xxxx 0
000    Xxxxxxxx XX000    Packing Xxxx 0
0000    Xxxxx sealer    Inspection Room 3
9012    3 - head filler    Fill Room 3
9013    Multivac R530 no.1    Packing Room 1
9015    Xxxxx R5 vacuum pump    Ivex Mezzanine
9016    Bassaire filter    Fill Xxxx 0
0000    Xxxxxxxx filter    Fill Xxxx 0
0000    Xxxxxxxx filter    Fill Xxxx 0
0000    Xxxxxxxx filter    Fill Room 1
9020    3 - head filler    Fill Room 3
9021    3 - head filler    Fill Room 1
9022    3 - head filler    Fill Room 1
9024    3 - head filler    Fill Room 2
9025    3 - head filler    Fill Room 3
9026    3 - head filler    Fill Room 3
9027    3 - head filler    Fill Xxxx 0
0000    Xxxxxxx still    Still Room
9040    Demin system    Demin Room
9041    Steam generator    Steam Room
9042    3 - head filler    Fill Room 3
9043    3 - head filler    Fill Room 2
9044    3 - head filler    Fill Room 3
9045    3 - head filler    Fill Room 1
9046    3 - head filler    Fill Room 3
9049    Steam header    Steam Room
9050    Sec Autoclave no.1    Sterilizer Compound
0000    XXX xxxx and storage vessel    XXX Xxxx
0000    Xxxxx X0x & X0x & filler line    Compound Room
9053    Tanks T2a & T2b & filler line    Compound Room
9054    Tanks T3 & filler line    Compound Room
9055    Chiller unit    WFI Loop
9056    Fill Room No. 2 static conveyor    Fill Room 2
9058    Inspection room no.2 conveyor    Inspection Room 2
9059    Inspection room 3 conveyor    Inspection Room 3
9061    Fill room no. 1 stand conveyor    Fill Room 1
9066    Hot foil printer atlas    Print Room 3
9068    3 - head filler    Fill Room 1
9069    Inspection room no.1 conveyor    Inspection Room 1

 

68

9088    Multivac R530 no.3    Packing Room 3
9089    Xxxxx R5 vacuum pump    Ivex Mezzanine
9090    Fill room 3 outlet conveyor    Fill Room 3
9091    Multivac no.3 conveyor    Packing Room 3
9124    Fill Room 3 stand conveyor    Fill Room 3
9126    Tank T4a and filler line    Tank T4A Mix Room
9127    3 – head filler    Fill Room 1
9128    3 – head filler    Fill Room 2
9129    3 – head filler    Fill Room 3
9130    3 – head filler    Fill Room 1
9131    3 – head filler    Fill Room 1
9132    3 – head filler    Fill Xxxx 0
0000    Xxxxxxxx filter    Fill Xxxx 0
0000    Xxxxxxxx filter    Fill Xxxx 0
0000    Xxxxxxxx filter    Fill Xxxx 0
0000    Xxxxxxxx filter    Fill Xxxx 0
0000    Xxxxxxxxxx case erector    Xxx Xxxx
0000    Fill room 2 mobile conveyor    Fill Xxxx 0
0000    Xxxxxxxx filter    Fill Room 2
9142    3 – head filler    Fill Room 3
9143    3 – head filler    Fill Room 3
9145    Multivac R530 no.2    Packing Room 2
9146    Xxxxx R5 vacuum pump    Ivex Mezzanine
9147    Fill Room 1 Swan neck conveyor    Fill Room 1
9148    Multivac no.1 conveyor    Packing Xxxx 0
0000    Xxx Xxxxxxxxx no.2    Sterilizer Compound
9151    LPHA 55320 Vacuum Pump Xx.0    Xxxxx Xxxx
0000    Xxx Xxxxxxxxx no.3    Sterilizer Compound
9158    3 – head filler    Fill Room 2
9159    3 – head filler    Fill Room 2
9160    3 – head filler    Fill Room 2
9161    3 – head filler    Fill Room 2
9162    Model proteus labelling system    Inspection Area
9163    Autoclave trolleys    Sterilizer Compound
9166    Print Blocks    Entire Facility
9173    Polyfuser Bassaire Filter Xx.0    Xxxx Xxxx 0
0000    Xxxxxxxxx Bassaire Filter Xx.0    Xxxx Xxxx 0
0000    XXX Xxxxxxxxx No.4    Sterilizer Compound
9176    Getinge-Kemiterm Still    Still Room
9177    Washing Machine No.1    Laundry
9178    Washing Machine Xx.0    Xxxxxxx
0000    Xxxxxx Dryer Xx.0    Xxxxxxx
0000    Xxxxxx Dryer No.1    Laundry
9185    LTE Stability Room 2    Warehouse
9186    LTE Stability Room 3    Warehouse
9187    Cerberus B vial filler and capper    Sterility Test Room
9188    PBE Hot Foil Printer    Print Xxxx 0
0000    XXX Hot Foil Printer    Print Room 1
9193    Hand Sealer Xx.0    Xxxxxxxxxx Xxxx 0
0000    XXXX 55320 Vacuum Pump No.2    Still Room
     Counterbalance forklift Toyota 3FB15-53301    Main facility
     Box Van DKZ 7314    Main facility
     Lorry IJI 1438    Main facility
000734    Degasser    Chemistry Lab

 

69

Computer assets to be transferred

 

Software Description

    Quantity

Microsoft Office 2000 Standard

    35

Microsoft Windows 2000 Server CAL

    30

Microsoft Exchange 2000 CAL

    30

Microsoft System Management Server CAL

    30

eTrust AntiVirus Licenses

    35

Xxxxx Xxx

    10

Microsoft Project 2000

    5

Valprobe

    3

Microsoft Windows 2000 Professional

    30

Microsoft Access 2000

    5

Xxxxx Label Pro

    1

Astrow

    1

OPW

    1

Windows NT Workstation

    5

Millennium

    5

 

Plus additional six (6) scanned pages below

 

70

Instrument Log Numbers

 

IVEX NUMBER
   

EQUIPMENT

   

LOCATION

1    DIONEX AS40 AUTOMATED SAMPLER 97090436    CHEMISTRY LAB
2    DIONEX INJECTOR 97090195    CHEMISTRY LAB
3    DIONEX IP20 ISOCRATIC XXXX 00000000    CHEMISTRY LAB
4    DIONEX ED40 ELECTROCHEMICAL DETECTOR 97080509    CHEMISTRY LAB
6    DELL HARD DRIVE 36780347    CHEMISTRY LAB
9    SMART UPS GS9829135975    CHEMISTRY LAB
10    DIGITAL PC HARD DRIVE PC83407877    CHEMISTRY LAB
11    DIGITAL COMPUTER SCREEN A182925604    CHEMISTRY LAB
12    XXXXXX XX MODULE 1MX5AM5380M    CHEMISTRY LAB
13    DIGITAL KEYBOARD 70880556    CHEMISTRY LAB
14    HP LAZERJET 4L PRINTER NLCC511145    CHEMISTRY LAB
15    SMART UPS GS9828021316    CHEMISTRY LAB
16    WATERS 410 DIGITAL REFRACTOMETER B97410109M    CHEMISTRY LAB
17    XXXXXX XX MODULE 1 MX6DM2589M    CHEMISTRY LAB
19    LAZERJET 4L PRINTER NLCC588120    CHEMISTRY LAB
21    DIGITAL COMPUTER SCREEN 8Q54213085    CHEMISTRY LAB
22    HIAC ROYCO 300A LIQUID SYRINGE SAMPLER 97030317    CHEMISTRY LAB
23    HIAC ROYCO 9064 96120248    CHEMISTRY LAB
24    ELONEX PC SCREEN 30383830    CHEMISTRY LAB
25    DIGITAL PC HARD DRIVE PC54004599    CHEMISTRY LAB
29    UNICAM UV3 052505    CHEMISTRY LAB
00    XXXXXXX XX XXXX XXXXX XX 000000    XXXXXXXXX LAB
32    DIGITAL KEYBOARD C0131604    CHEMISTRY LAB
33    CORNING 928 CHLORIDE METER 2479    CHEMISTRY LAB
34    CORNING FLAME PHOTOMETER 405 405/1228    CHEMISTRY LAB
36    BELLING DRYING OVEN 001297    CHEMISTRY LAB
37    XXXXXXX XX00 AUTOTITRATOR 3113018078    CHEMISTRY LAB
00    XXXXXXXXXX XXXXXXXX XXXXXXX XX00000    CHEMISTRY LAB
40    EPSON LX850 PRINTER 44D7024549    CHEMISTRY LAB
44    XXXXXXX XX000 BALANCE J38216    CHEMISTRY LAB
48    METTLER BASBAL 3000 BALANCE J54834    CHEMISTRY LAB
49    CORNING CHLORIDE METER 925 4320    CHEMISTRY LAB
57    CARBOLITE FURNACE 1/80/8    CHEMISTRY LAB
59    ADVANCED OSMOMETER 3D3 95111182E    CHEMISTRY LAB
00    XXXX XXXX XXXXX XXXX0 00000000    XXXXXXXXX LAB
00    XXXX XXXXXXXX X0000 30820    CHEMISTRY LAB
64    RENTOKIL UV LAMP 03868 - chem lab wall    CHEMISTRY LAB
65    INTEGRITEST II PLUS 6155    CHEMISTRY LAB
66    LOVIBOND Ph Eur COLOUR DISC BY 2158    CHEMISTRY LAB
67    LOVIBOND Ph Eur COLOUR DISC Y 1922    CHEMISTRY LAB
68    LOVIBOND Ph Eur COLOUR DISC B 2473    CHEMISTRY LAB
69    LOVIBOND Ph Eur COLOUR DISC GY 1923    CHEMISTRY LAB
70    UV LAMP 1208    CHEMISTRY LAB
73    ROTARY EVAPORATOR 1061566    CHEMISTRY LAB
00    XXXXXXX XXXXX XXXXXXXXX XX0000    CHEMISTRY LAB
76    LIGHT BOX    CHEMISTRY LAB
78    CALCULATOR - ANDY    CHEMISTRY LAB
81    CALCULATOR - XXXXX    CHEMISTRY LAB
82    CALCULATOR - XXXXXX    CHEMISTRY LAB
83    CALIBRATED RULER    CHEMISTRY LAB
84    CALCULATOR - XXXXXXX    DOCUMENTATION OFFICE
90    CALCULATOR - XXXX    DOCUMENTATION OFFICE
91    DELL COMPUTER SCREEN 9172702003    QC XXXXXX
00    XXXX XXXX XXXXX XXXXX00000000    XX XXXXXX
00    XXXX XXXXXXXX X0000 00000    XX XXXXXX
000    XXXXXXX XX XXXXXX 0X00000000    XX XXXXXX
101    DIGITAL PC KEYBOARD B1130074    QC OFFICE
102    YOKOGAWA MEMORY CARD READER 44XY0021    QC OFFICE
103    DIGITAL HARD DRIVE PC63206986    QC XXXXXX
000    XX 000X XXXXXXX XX00XXX0XX    XX OFFICE
105    CALCULATOR    AUTOCLAVES
106    CALCULATOR    PRODUCTION
107    CALCULATOR    PRODUCTION
108    CALCULATOR    PRODUCTION
109    CALCULATOR    PRODUCTION
110    CALCULATOR    PRODUCTION
111    CALCULATOR    PRODUCTION
112    CALCULATOR    PRODUCTION
113    CALCULATOR    PRODUCTION
114    1G WEIGHT 13081    CHEMISTRY LAB
115    100G WEIGHT 22617    CHEMISTRY LAB
121    DESKJET 895Cxi ES91P1C1YN    CHEMISTRY LAB
122    SPECAC PRESS N/A    CHEMISTRY LAB
123    INSERT FOR DISCS 840-062600    CHEMISTRY LAB
124    INSERT FOR PLASTICS 0504    CHEMISTRY LAB
125    INSERT FOR POWDERS 0337    CHEMISTRY LAB
126    GALLENKAMP OVEN SG97/12/058    CHEMISTRY LAB
127    FLUORIMETER 1087    CHEMISTRY LAB
129    PB8000 XXXXXXX TOLEDO BALANCE    PRODUCTION

 

71

Instrument Log Numbers

 

131    WATER BATH    DEVELOPMENT LAB
132    LIGHT BOX A2010    DEVELOPMENT LAB
133    INTEGRITY TESTER W10468    CHEMISTRY LAB
135    CALIPERS RS2488    CHEMISTRY LAB
137    CALCULATOR-CITIZEN LH830N 980603    INSPECTION
138    5G WEIGHT 22106    CHEMISTRY LAB
140    CALCULATOR (XXXX-XXXXX)    DEVELOPMENT LAB
141    GALLENKAMP INCUBATOR WITH FAN 60oC+-2.5oC INCUBATOR#3 SOP/MIC-050    MICRO LAB
142    BURRO CATERING CANTEEN    MICRO LAB
144    DIGITAL PORTABLE THERMOMETER (B)    MICRO LAB
147    DIGITAL PORTABLE THERMOMETER (3)    MICRO LAB
150    YOKOGAWA HYBRID RECORDER HR2300 TYPE:3760320 SERIAL NO:44UF0055    MICRO LAB
151    HAVEN AUTOMATION LIMITED TEMPCAL CALIBRATOR INSTNO:83435-2 CERTNO: 004211T    MICRO LAB
152    XXXXX XXXXXX HEAT SEALER    MICRO LAB
153    DIGITAL PORTABLE THERMOMETER (2)    MICRO LAB
156    SARTORIUS HD8 AIR SAMPLER INST NO:47051353 CERT NO: 80110    MICRO LAB
157    GALLENKAMP INCUBATOR WITH FAN INCUBATOR#6 30-35oC SOP/MIC-050    MICRO LAB
159    DIGITAL PORTABLE THERMOMETER (G)    MICRO LAB
160    UPHEP PH METER PH3    MICRO LAB
163    FALCON PIPETTE-AID MO11    MICRO LAB
164    ORION PH METER AND PROBE MODEL 410A    MICRO LAB
167    PIPETMAN P100 PIPETTE 0627760    MICRO LAB
170    DIGITAL MONITOR SERIAL NO:1K71639279    MICRO LAB
171    DIGITAL HARD DRIVE SERIAL NO: IPC013    MICRO LAB
000    XXXXXXX XXXXXXXX XXXXXX XX:0X00000000    MICRO LAB
173    HEWLETT PACKARD LASER JET 4L PRINTER SERIAL NO: NLBB382644    MICRO LAB
174    ATI-6000 KINETIC PHOTOSPECTOMETER (1)    MICRO LAB
175    ATI-6000 KINETIC PHOTOSPECTOMETER (2)    MICRO LAB
177    DIGITAL PORTABLE THERMOMETER (7)    MICRO LAB
000    XXXXXX XXXXXXX XXX XXXX XX 27    MICRO LAB
182    XXXXXX PIPETMAN P200 C14339G    MICRO LAB
000    XXXXXX XXXXXXXX X0000 N19509A    MICRO LAB
184    FLASHPOINT GAS LIGHTER    MICRO LAB
185    DISPENSETTE III 09V 6631    MICRO LAB
186    GEPRITLE SICHERHEIT OPTIFIX BOTTLE TOP DISPENSER 002469    MICRO LAB
187    BENCH LAMP    MICRO LAB
189    BBL ANAEROBIC JAR    MICRO LAB
190    GENLAB INCUBATOR 30-35oC    MICRO LAB
191    LMS COOLED INCUBATOR    MICRO LAB
194    CALCULATOR XXX    STORES
196    LAF UNIT    MICRO LAB
212    MAX/MIN DIGITAL THERMOMETER    MICRO LAB
213    MAX/MIN DIGITAL THERMOMETER    MICRO LAB
214    MAX/MIN DIGITAL THERMOMETER    MICRO LAB
215    MAX/MIN DIGITAL THERMOMETER    MICRO LAB
216    MAX/MIN DIGITAL THERMOMETER    MICRO LAB
217    MAX/MIN DIGITAL THERMOMETER    MICRO LAB
218    MAX/MIN DIGITAL THERMOMETER    MICRO LAB
219    MAX/MIN DIGITAL THERMOMETER    MICRO LAB
222    ISO-TECH ILM 350 LIGHT METER L436355    CHEMISTRY LAB
223    ET-086 OVEN TEMPERATURE PROBE    CHEMISTRY LAB
224    XXXXXXX CASIO fx-82 SUPER SCIENTIFIC CALCULATOR    PRODUCTION
225    XXXXX-CITIZEN LH 830N CALCULATOR    PRODUCTION
227    IVEX STABILITY ROOM 2    STORES
228    IVEX STABILITY ROOM 3    STORES
229    XXXXXX-XXXXX SCIENTIFIC CALCULATOR EL-531GH    PRODUCTION
230    PRINTER FOR THE LOOP-EPSON LX 300-PRODUCTION OFFICE    PRODUCTION
231    AFICIO 401 PHOTOCOPIER-PRODUCTION OFFICE    PRODUCTION
232    HP DESKJET 880c PRINTER-PRODUCTION OFFICE    PRODUCTION
233    DIGITAL COMPUTER SCREEN (PO) 7M62209596    PRODUCTION
234    DIGITAL HARD DRIVE (PO) PC63504088    PRODUCTION
235    IBICO-EC-100S CALCULATOR-MULTIVAC 1    PRODUCTION
236    AURORA DT350 CALCULATOR-MULTIVAC 3    PRODUCTION
237    XXXXXXX TOLEDO SCALES-INSP LINE 1 CAROL’S LINE 2588783-2*5    PRODUCTION
238    METTLER PJ6 SCALES MO6677 INSP LINE 2    PRODUCTION
239    METTLER PJ6000 BALANCE-CL RM1 H54595    PRODUCTION
000    XXXXXXX XX0 XXXXXX XX XX0-X00000    PRODUCTION
241    DIGITAL KEYBOARD-PRODUCTION OFFICE    PRODUCTION
242    COMPOUND ROOM-EPSON LX 300 PRINTER    PRODUCTION
243    XXXXXXX TOLEDO XXXXXX XX RM3 III7430267    PRODUCTION
254    XXXXXXX CLOCK/CALCULATOR (MICRO)    MICRO LAB
256    PJ3600 XXXXXXX XXXXXXX X00000    PRODUCTION
257    PJ3600 BALANCE K80221 DISPENSARY    PRODUCTION
258    SPIDER 1-35 2115014883 DISPENSARY    PRODUCTION
260    HEWLETT PACKARD LASER JET 2100TN PRINTER SN:NLCB040916    MICRO LAB
262    MET ONE LASER PARTICLE COUNTER SN:9414623230    MICRO LAB
263    SCIENTIFIC CALCULATOR LABS    MICRO LAB
264    SCIENTIFIC CALCULATOR LABS    MICRO LAB
265    SCIENTIFIC CALCULATOR LABS    MICRO LAB
266    DIGITAL TIMER    MICRO LAB

 

72

Instrument Log Numbers

 

267    CASIO fx 825X SCIENTIFIC CALCULATOR    MICRO LAB
268    XXXX MAGUIRES CALCULATOR    PRODUCTION
270    BAG PLANT CALCULATOR    BAG PLANT
271    DIGITAL TIMER LABS    CHEMISTRY LAB
272    TOC METER ACCESS 643 SER NO:1195    CHEMISTRY LAB
273    TOC METER PRINTER LX300    CHEMISTRY LAB
274    JENWAY CONDUCTIVITY METER SER NO:2089    CHEMISTRY LAB
275    50MG CALIBRATED WEIGHT SER NO:233961097    CHEMISTRY LAB
276    302 PH METER (MICRO) SER NO:T101374    CHEMISTRY LAB
279    CALCULATOR CITIZEN SN:991103    PRODUCTION
280    CALCULATOR CITIZEN SN:991103    PRODUCTION
281    CALCULATOR SCIENTIFIC    CHEMISTRY LAB
282    CALCULATOR SCIENTIFIC    CHEMISTRY LAB
283    RIBO 292960 LOVIBOND DISC    CHEMISTRY LAB
285    KB60.2 XXXXXXX TOLEDO BALANCE SER NO:23335874 DISPENSARY    PRODUCTION
286    CALCULATOR    PRODUCTION
287    CALCULATOR    PRODUCTION
288    CALCULATOR    PRODUCTION
289    COMPAQ MONITOR 043CG24KF535    DEVELOPMENT LAB
290    COMPAQ KEYBOARD 3829A569    DEVELOPMENT LAB
291    WATERS 2690 H00SHC 176M & H005MH 219M    DEVELOPMENT LAB
292    WATERS 2487 J00487 074M    DEVELOPMENT LAB
293    COMPAQ HARDWARE 8046FR4Z1MV6    DEVELOPMENT LAB
294    SMART UPS GS0036002215    DEVELOPMENT LAB
297    MAGNETIC STIRRER 81194767    DEVELOPMENT LAB
302    PRESSURE CUFF C-FUSOR 500 SER NO:27D141089-1    DEVELOPMENT LAB
311    ELECTRONIC TIMER CLOCK    DEVELOPMENT LAB
312    CALCULATOR FX 82 CASIO (XXXXXX)    DEVELOPMENT LAB
313    CALIPERS - 547-316 SER NO: 02380    CHEMISTRY LAB
314    CALCULATOR - X. XXXX    PRODUCTION
315    CALCULATOR - X. XXXXX    PRODUCTION
316    CALCULATOR - X. XXXXXXXX    PRODUCTION
317    CALCULATOR - X. XXXXXXX    PRODUCTION
318    CALCULATOR - X. XXXXXXX    PRODUCTION
319    CALCULATOR - X. XXXXXXXX    PRODUCTION
320    200g WEIGHT 61448    CHEMISTRY LAB
321    CASIO MS 8L CALCULATOR    PRODUCTION
322    XXXXXX P200 P570760    CHEMISTRY LAB
000    XXXXXXX XXX XXXX X0XX    CHEMISTRY LAB
331    BEKO FRIDGE RG910    CHEMISTRY LAB
332    BIG DIGIT TIMER CLOCK    MICRO LAB
333    BIG DIGIT TIMER CLOCK    MICRO LAB
334    QUARTZ DIGITAL THERMOMETER    CHEMISTRY LAB
335    ELECTRONIC TIMER CLOCK    CHEMISTRY LAB
338    BBL ANAEROBIC JAR    MICRO LAB
339    SONICATOR    MICRO LAB
340    CALIBRATION BATH    MICRO LAB
341    TORCH    MICRO LAB
346    AIR SAMPLER SAS SUPER 180    MICRO LAB
347    LAF    STERILITY XXXXX
000    XXXXXXXXX XXXX    XXXXXXXXX XXXXX
000    DIGI-THERMOMETER    MICRO LAB
350    DIGI-THERMOMETER    MICRO LAB
354    DIGI-THERMOMETER    STABILITY ROOMS
359    DIGI-THERMOMETER    STABILITY ROOMS
361    DIGI-THERMOMETER    STABILITY ROOMS
362    DIGI-THERMOMETER    STABILITY ROOMS
363    DIGI-THERMOMETER    STABILITY ROOMS
364    DIGI-THERMOMETER    STABILITY ROOMS
367    25C/60% STABILITY ROOM #3    STABILITY ROOMS
368    40C/15% STABILITY ROOM #2    STABILITY ROOMS
369    ALLIANCE 2690 HPLC    CHEMISTRY LAB
370    WATERS 2487 DUAL DETECTOR    CHEMISTRY LAB
371    COMPAQ DESKTOP HARD-DRIVE    CHEMISTRY LAB
374    CASIO HS-85TE TAX & EXCHANGE CALCULATOR    XXXXX XXXXX
375    CASIO HS-85TE TAX & EXCHANGE CALCULATOR    XXXXXXXX XXXXX
376    CASIO HS-85TE TAX & EXCHANGE CALCULATOR    XXXXX XXXXX
000    XXXXX XX-00XX TAX & EXCHANGE CALCULATOR    PRODUCTION OFFICE
378    CASIO J-120T CALCULATOR    XXXXXX XXXXXX
379    CASIO J-120T CALCULATOR    STORES
380    CASIO HS-85TE TAX & EXCHANGE CALCULATOR    PRODUCTION
381    CASIO HS-85TE TAX & EXCHANGE CALCULATOR    PRODUCTION
382    CASIO HS-85TE TAX & EXCHANGE CALCULATOR    PRODUCTION
383    CASIO HS-85TE TAX & EXCHANGE CALCULATOR    PRODUCTION
388    CALCULATOR-XXXXX XXXXXXX    MULTIVAC 3
393    STAINLESS STEEL SQUARE 316 2.0MM 10X10CM    DEVELOPMENT LAB
394    PHENOMENEX DIGI-TIMER    DEVELOPMENT LAB
395    COMPAQ V720 HARD DRIVE    CHEMISTRY LAB
396    CASIO HS-85TE TAX & EXCHANGE CALCULATOR    XXX XXXXXXXX
397    CASIO HS-85TE TAX & EXCHANGE CALCULATOR    XXX XXXXXX

 

73

Instrument Log Numbers

 

398    CASIO HS-85TE TAX & EXCHANGE CALCULATOR    XXXX XXXXXXXX
399    CASIO HS-85TE TAX & EXCHANGE CALCULATOR    XXXXXXX XXXXXXXX
000    XXXXX XX-00XX TAX & EXCHANGE CALCULATOR    XXXXX XXXXXXX
401    SHARP EL-530L CALCULATOR    XXXXXXX XXXXX
402    DIGITALLY CONTROLLED CLOCK    MICRO LAB
404    CALCULATOR    CHEMISTRY LAB
405    CALCULATOR    CHEMISTRY LAB
407    GENEX BETA 1-5ML CS18658    DEVELOPMENT LAB
408    XXXXXX P10ML U70495K    DEVELOPMENT LAB
000    XXXXXXX XXXXXX SPIDER 1    PRODUCTION
411    SOLAAR AA SPECTROPHOTOMETER    CHEMISTRY LAB
412    784 KFP TITRINO TITRATOR    CHEMISTRY LAB
413    METROTRIM 703 TI STAND    CHEMISTRY LAB
424    CASIO CALCULATOR J120TE    PRODUCTION
431    ELX 808µ MICROTITRE PLATE RECORDER    ENDOTOXIN TEST ROOM
432    DAEWOO MONITOR    ENDOTOXIN TEST ROOM
000    XXXXXX XXXX XXXXX    ENDOTOXIN TEST ROOM
434    HP LASERJET 1200 SERIES    ENDOTOXIN TEST ROOM
435    CALIBRATION PLATE    QC OFFICE
436    MEASURING CYLINDER CLASS A 250ML 25046    CHEMISTRY LAB
440    MEASURING CYLINDER CLASS A 1000ML 27017    CHEMISTRY LAB
441    DIGITAL THERMOMETER    MICRO LAB
442    DIGITAL THERMOMETER    MICRO LAB
443    DIGITAL THERMOMETER    MICRO LAB
444    MONITOR FOR DIONEX 135BM26DA885    DEVELOPMENT LAB
445    CASIO CALCULATOR HS8V    PRODUCT ON
446    MEASURING CYLINDER CLASS A l000ML 29298    CHEMISTRY LAB
447    MEASURING CYLINDER CLASS A l000ML 29299    CHEMISTRY LAB
448    MEASURING CYLINDER CLASS A 2000ML 27832    CHEMISTRY LAB
449    MEASURING CYLINDER CLASS A 2000ML 27833    CHEMISTRY LAB
451    MEASURING CYLINDER CLASS A 250ML J4922    CHEMISTRY LAB
454    PH METER 493699    CHEMISTRY LAB
455    DIGITAL TIMER    MICRO LAB
456    DIGITAL TIMER    MICRO LAB
458    CALCULATOR    PRODUCTION
459    CALCULATOR    PRODUCTION
460    CALCULATOR    PRODUCTION
461    CALCULATOR    PRODUCTION
462    CALCULATOR    PRODUCTION
464    CALCULATOR    DEVELOPMENT LAB
465    CALCULATOR    CHEMISTRY LAB
466    CALCULATOR    CHEMISTRY LAB
467    CALCULATOR    CHEMISTRY LAB
469    MEASURING CYLINDER 100ML    DEVELOPMENT LAB
470    MEASURING CYLINDER 100ML    CHEMISTRY LAB
471    MAX MIN THERMOMETER    MICRO LAB
472    CALCULATOR    PRODUCTION
473    CALCULATOR    PRODUCTION
474    CALCULATOR    PRODUCTION
475    CALCULATOR    PRODUCTION
478    MAX MIN THERMOMETER    MICRO LAB
479    MAX MIN THERMOMETER    MICRO LAB
480    MAX MIN THERMOMETER    MICRO LAB
481    MAX MIN THERMOMETER    MICRO LAB
482    MAX MIN THERMOMETER    MICRO LAB
483    MICROPIPETTE 200-1000    CHEMISTRY LAB
484    MICROPIPETTE 1000-5000    MICRO LAB
485    MICROPIPETTE 200-1000    CHEMISTRY LAB
486    CALCULATOR    PRODUCTION
487    CALCULATOR    PRODUCTION
488    CALCULATOR    PRODUCTION
489    CALCULATOR    PRODUCTION
490    CALCULATOR    PRODUCTION
491    CALCULATOR    PRODUCTION
492    PRESSURE CUFF 1000 27A131150    CHEMISTRY LAB
493    PRESSURE CUFF 1000 27B251105    CHEMISTRY LAB
494    PRESSURE CUFF 500 27D141089    CHEMISTRY LAB
495    BEAKERS    CHEMISTRY LAB
496    VOLUMETRIC FLASKS    CHEMISTRY LAB
497    MEASURING CYLINDERS    CHEMISTRY LAB
498    CONICAL FLASKS    CHEMISTRY LAB
499    PIPETTES    CHEMISTRY LAB
500    WATER TANK    CHEMISTRY LAB
501    HPLC PHIALS    CHEMISTRY LAB
502    PI PUMPS    CHEMISTRY LAB
503    BUNSEN BURNERS    CHEMISTRY LAB & MICRO LAB
523    VALPROBE    MICRO LAB
524    VALPROBE    MICRO LAB
525    VALPROBE    MICRO LAB
526    VALPROBE    MICRO LAB

 

74

Instrument Log Numbers

 

527    VALPROBE    MICRO LAB
528    VALPROBE    MICRO LAB
529    VALPROBE    MICRO LAB
530    VALPROBE    MICRO LAB
531    VALPROBE    MICRO LAB
532    VALPROBE    MICRO LAB
533    VALPROBE    MICRO LAB
534    VALPROBE    MICRO LAB
535    VALPROBE    MICRO LAB
536    VALPROBE    MICRO LAB
537    VALPROBE    MICRO LAB
538    VALPROBE    MICRO LAB
539    VALPROBE    MICRO LAB
540    VALPROBE    MICRO LAB
541    VALPROBE    MICRO LAB
542    VALPROBE    MICRO LAB
543    VALPROBE    MICRO LAB
544    VALPROBE    MICRO LAB
545    VALPROBE    MICRO LAB
546    VALPROBE    MICRO LAB
547    VALPROBE    MICRO LAB
548    VALPROBE    MICRO LAB
549    VALPROBE    MICRO LAB
550    VALPROBE    MICRO LAB
551    VALPROBE    MICRO LAB
552    VALPROBE    MICRO LAB
553    TLC TANK    CHEMISTRY LAB
554    STORAGE CABINETS    CHEMISTRY LAB
555    VACUUM FILTER FLASKS    CHEMISTRY LAB
584    stainless steel trolley (2 tier)    MICRO LAB
585    stainless steel trolley (4 tier)    STERILITY SUITE
586    stainless steel trolley (2 tier)    STERILITY SUITE
587    stainless steel trolley (2 tier)    MICRO LAB
588    stainless steel trolley (4 tier)    STERILITY SUITE
589    stainless steel trolley (3 tier)    MICRO LAB
593    Laboratory Swivel Operator chair    STERILITY SUITE
594    Laboratory Swivel Operator chair    STERILITY SUITE
598    Media Waste wheeled bins    MICRO LAB
599    Waste Paper Bin    MICRO LAB
602    Waste General Bin    MICRO LAB
604    Waste Plastic Bin    MICRO LAB
619    1 Litre Xxxxx Bottle    MICRO LAB
620    1 Litre Xxxxx Bottle    MICRO LAB
621    1 Litre Xxxxx Bottle    MICRO LAB
622    1 Litre Xxxxx Bottle    MICRO LAB
623    1 Litre Xxxxx Bottle    MICRO LAB
624    1 Litre Xxxxx Bottle    MICRO LAB
625    1 Litre Xxxxx Bottle    MICRO LAB
626    1 Litre Xxxxx Bottle    MICRO LAB
627    1 Litre Xxxxx Bottle    MICRO LAB
628    1 Litre Xxxxx Bottle    MICRO LAB
639    500 xx Xxxxx Bottle    MICRO LAB
640    500 xx Xxxxx Bottle    MICRO LAB
641    500 xx Xxxxx Bottle    MICRO LAB
642    500 xx Xxxxx Bottle    MICRO LAB
643    500 xx Xxxxx Bottle    MICRO LAB
644    500 xx Xxxxx Bottle    MICRO LAB
645    500 xx Xxxxx Bottle    MICRO LAB
646    500 xx Xxxxx Bottle    MICRO LAB
647    500 xx Xxxxx Bottle    MICRO LAB
648    500 xx Xxxxx Bottle    MICRO LAB
649    500 xx Xxxxx Bottle    MICRO LAB
650    500 xx Xxxxx Bottle    MICRO LAB
651    500 xx Xxxxx Bottle    MICRO LAB
686    500 xx Xxxxxx Filtration Units    MICRO LAB
687    500 xx Xxxxxx Filtration Units    MICRO LAB
688    500 xx Xxxxxx Filtration Units    MICRO LAB
689    500 xx Xxxxxx Filtration Units    MICRO LAB
690    500 xx Xxxxxx Filtration Units    MICRO LAB
691    300 xx Xxxxxx Filtration Units    MICRO LAB
692    300 xx Xxxxxx Filtration Units    MICRO LAB
693    300 xx Xxxxxx Filtration Units    MICRO LAB
694    300 xx Xxxxxx Filtration Units    MICRO LAB
695    300 xx Xxxxxx Filtration Units    MICRO LAB
696    300 xx Xxxxxx Filtration Units    MICRO LAB
697    300 xx Xxxxxx Filtration Units    MICRO LAB
698    300 xx Xxxxxx Filtration Units    MICRO LAB
699    300 xx Xxxxxx Filtration Units    MICRO LAB
700    300 xx Xxxxxx Filtration Units    MICRO LAB
701    300 xx Xxxxxx Filtration Units    MICRO LAB

 

75

Instrument Log Numbers

 

702    300 xx Xxxxxx Filtration Units    MICRO LAB
703    300 xx Xxxxxx Filtration Units    MICRO LAB
704    300 xx Xxxxxx Filtration Units    MICRO LAB
705    300 xx Xxxxxx Filtration Units    MICRO LAB
706    300 xx Xxxxxx Filtration Units    MICRO LAB
707    300 xx Xxxxxx Filtration Units    MICRO LAB
708    300 xx Xxxxxx Filtration Units    MICRO LAB
709    300 xx Xxxxxx Filtration Units    MICRO LAB
710    300 xx Xxxxxx Filtration Units    MICRO LAB
732    VISCOMETER    CHEMISTRY LAB
733    VISCOMETER    CHEMISTRY LAB

 

76

PRODUCT

   

SER NUM

   

FULL NAME

Computer

          
Evo N400c    7J1CJMWZD00P    Xxxx XxXxxxx
Evo N410c    7J28KVBZP04G    Xxx XxXxxxxxx
iPaq    8049DZF2011V    Xxxxxx Xxxxxxxx
iPAQ Desktop    8109JDVZ1305    Xxxx Xxxxxx
OptiPlex GX100    RFYM0    XXXXX XXXXX
5          

DESKJET PRINTER

          
Lexmark Z52    09320367489    DEVELOPMENT LAB
Epson STYLUS COLOUR 600    AAKOO20760    Xxxxxxxxxx Xxxxxxx
Epson Stylus C62    EJXT147351    CHEMISTRY LAB
HP DESKJET 660C    ES83V182TX    Xxxx XxXxxxx
HP DESKJET 880C    ES8AG441XG    CHEMISTRY LAB
HP Deskjet 895 Cxi    ES91P1C1YN    DEVELOPMENT LAB
HP DESKJET 815C    ES95L1305H    QC OFFICE
HP Deskjet 895 Cxi    ES96G130GW    DEVELOPMENT LAB
HP DESKJET 930C    ESOAW160H6    Xxxxxx Xxxxxxxxx
HP Deskjet 840C    HU0B31Y16M    CHEMISTRY LAB
HP Deskjet 895 Cxi    HUO1A1N2PV    Xxx XxXxxxxxx
DESKJET 895CXI    HUO1O1P1JT    Xxxx Xxxxxxxxx
HP Deskjet Printer 5552    MY27VIM05T    CHEMISTRY LAB
Deskjet 5552    MY2A91M2F2    DEVELOPMENT LAB
CP1700    SG1B6210XR    Xxxx Xxxxxx
15          

DESKTOP

          
OPTIPLEX E1    44119409    QC OFFICE
EVO    6S1CJX8Z502S    CHEMISTRY LAB
COMPAQ IPAQ    8029DZD20065    IVEX SALES
iPaq    8045DZF2010D    Xxxxxxxx Xxxxx
COMPAQ IPAQ LEGACY FREE C500    8045DZF2010R    Xxxx Xxxxxx
COMPAQ DESKPRO EXM    8046FR4Z1MV6    DEVELOPMENT LAB
COMPAQ IPAQ    8052DZD2000X    Xxxxxx Xxxxxxxxx
iPAQ Desktop    8108JDVZ00G8    Xxxx Xxxxxxxxx
iPAQ Desktop    8108JDVZ00GB    Xxxxxxxx Xxxxx
iPAQ Desktop    8108JDVZ00H4    XXXXXXX XXXXX
iPAQ Desktop    8108JDVZ00HB    Xxxxxxx Xxxxxx
COMPAQ IPAQ    8108JDVZ00HS    Xxxxxxx Xxxxxx
iPAQ Desktop    8108JDVZ00JF    Xxxxxxxxxx Xxxxxxx
iPAQ Desktop    8110JDVZ0328    Xxxxxxxxxx Xxxxxxx
COMPAQ Deskpro EXM 933    8125FR4Z042L    CHEMISTRY LAB
COMPAQ IPAQ    8143JDVZ00LS    Xxxxxxx Xxxxxxxx
COMPAQ EVO D310 P4-2.0G 40GB 256MB CD LAN WXPP    FR22824598    Xxxxx Xxxxxxx
OPTIPLEX Gs    LWBWB    DEVELOPMENT LAB
VENTURIS 575    PC54004598    CHEMISTRY LAB
VENTURIS 575    PC54004599    CHEMISTRY LAB
VENTURIS FX5100    PC63504071    LABEL OFFICE PRODUCTION IVEX
VENTURIS 5100    PC63504088    PRODUCTION OFFICE - CLOCKIN
DIGITAL PC 3000    PC83407877    CHEMISTRY LAB
OptiPlex GX1 350L+    QGKW5    XXXXX XXXXX
OPTIPLEX GXI    QGKWJ    XXXXX XXXXXX
OPTIPLEX GX1    R48RQ    DEVELOPMENT LAB
OPTIPLEX GX1    R4SR1    CHEMISTRY LAB
OPTIPLEX GX100    RFYMG    LABEL OFFICE PRODUCTION IVEX
28          

Dot Matrix Printer

          
Epson FX-1170    2JA7007826    QC OFFICE
Epson FX-1170    2JA7122973    XXXXX XXXXX
2          

EXPANSION UNIT

          
COMPAQ EVO N410C EXP UNIT CD    1J28KX22G10M    Xxx XxXxxxxxx
ARMADA M300    3J07DFP1RKSK    QC OFFICE
EVO X000X XXXXXXXXX XXXX XXX    00X00XXXXX0XX    XX OFFICE
3          

LASER PRINTER

          
LASERJET 2200D    FRFGM00795    CHEMISTRY LAB
HP LASERJET 2100 TN    NLCBQ4Q916    GSS PRODUCTION OFFICE

 

77

10/03/2004

 

PRODUCT

   

SER NUM

   

FULL NAME

LASERJET 4L    NLCC586120    CHEMISTRY LAB
3          

MONITOR

          
IIYAMA S500M1 15” MONITOR         Xxxx Xxxxxxxxx
Digital Monitor    &M62101799    XXXXX XXXXX
S510    010BB65NDV15    XXXXX XXXXX
S510    035BB24ND384    Xxxxxx Xxxxxxxxx
S710    043GC24KF535    DEVELOPMENT LAB
17” Monitor upgrade    114CG24KH499    CHEMISTRY LAB
S710    117CG24KD331    Xxxxxxxx Xxxxx
COMPAQ MONITOR S720    134CL26EA720    CHEMISTRY LAB
S720    139CL26SC534    Xxxxxxx Xxxxxxxx
S720    144CL26LH298    Xxxx XxXxxxx
Digital Monitor    1K73064687    Xxxx Xxxxxx
Digital Monitor    1K74083557    QC OFFICE
828FI    22795B0APP79    DEVELOPMENT LAB
828FI    22795B0APY    CHEMISTRY LAB
828F1    22795C0VCP29    LABEL OFFICE PRODUCTION IVEX
COMPAQ 17IN S7500 COLOUR MONITOR 2-TONE CARBON/SILVER    233CP24LJ166    Xxxxx Xxxxxxx
COMPAQ TFT5015 15” DISPLAY    242BQ29XE154    Xxxxxxxxxx Xxxxxxx
TE1438A    30383830    CHEMISTRY LAB
Digital Monitor    7M61029452    IVEX SALES
Digital Monitor    7M61030203    DEVELOPMENT LAB
Digital Monitor    7M62209614    Xxx XxXxxxxxx
Digital Monitor    7M62209618    XXXXXXX XXXXX
Digital Monitor    7M622Q9596    PRODUCTION OFFICE - CLOCKIN
Digital Monitor    8Q54213085    CHEMISTRY LAB
Acer 1569i    9172702003    CHEMISTRY LAB
Digital Monitor    A100400031    Xxxx Xxxxxxxxx
Digital Monitor    A173603359    Xxxxxxx Xxxxxx
Digital Monitor    A182925604    CHEMISTRY LAB
S500MI    TIDNOCBO61331    Xxxxxx Xxxxxxxx
29          

NOTEBOOK

          
ARMADA M300    7J08FM74P02E    QC OFFICE
N400c    7J26JMWZBOOF    QC OFFICE
2          

Printer

    NLBB382644    CHEMISTRY LAB
HP LJ 4L          
1          

Projector

          
VPL-CS2 LCD PROJECTOR SVGA 600    18532    Xxxx Xxxxxx
1          

SCANNER

          
5470C    CN1621I021    Xxxxxx Xxxxxxxxx
ASTRA 610P    H6W0E48104154    CHEMISTRY LAB
2          

WYSE SCREEN

          
WY-120    09I10A02698    Xxxx Xxxxxxxxx
1          

 

78

 

SCHEDULE 4

 

Contracts

 

Confidentiality Agreement with Xxxxxx Healthcare Limited

Confidentiality Agreement with Xxxxxx XX/NV

Supply Agreement with Xxxxxx X.X.

Technical Agreement with Xxxxxx Healthcare Limited

Technical Agreement with Biosol S.p.A.

Technical Agreement with Boots Company PLC

Agreement with Ciba Vision Ophthalmics GmbH

Agreement with Ciba Vision Ophthalmics UK Limited

Contract Manufacturing Agreement with Ciba Vision AG (Draft)

Development Agreement with COBE BCT Inc.

Non-Disclosure Agreement with COBE BCT Inc.

Technical Contract with Coloplast Continence Care Division

Commercial Agreement for Stability Development and Validation with Xxxxxxx Lifesciences BV (Draft)

Manufacturing and Supply Agreement with Xxxxxxx Lifesciences AG (Draft)

Mutual Confidentiality Agreement with Xxxxxxx Lifesciences SA (Draft)

Manufacturing and Supply Agreement with Excorim AB

Contract Manufacturing Agreement with Fresenius Kabi Limited

Manufacturing and Supply Agreement with Gambro BCT

Riboflavin Stability Contract with Gambro BCT Inc.

Manufacturing and Supply Agreement with Hospal International Marketing Management S.N.C. and Gambro Lundia AB

Agreement with Haemonetics S.A. (December 1995)

Agreement with Haemonetics S.A. (February 1996)

Agreement with Haemonetics S.A. (August 1996)

Agreement with Haemonetics S.A. (September 1997)

Agreement with Haemonetics S.A. (September 1997)

Agreement with Haemonetics S.A. (September 1997)

Non-Disclosure Agreement with IV Direct Limited

Mutual Non-Disclosure Agreement with X.X.Xxxxx Pharmacien

Confidentiality Agreement with Xxxxxx International Inc. and Technomark Consulting Services Limited

Confidentiality Agreement with Laboratoires UPSA

Manufacturing and Supply Agreement with Maelor Pharmaceuticals Limited

Mutual Non-Disclosure Agreement with Maelor Pharmaceuticals Limited

Confidentiality Agreement with Maelor Pharmaceutical Supplies Limited

Confidentiality Agreement with Mindset BioPharmaceuticals (USA) Inc.

 

79

Manufacturing and Supply Agreement with ML Laboratories PLC

Assignment and Novation Agreement with ML Laboratories PLC and Shire Pharmaceutical Contracts Limited

Confidentiality Agreement with ML Laboratories Limited

Mutual Non-Disclosure Agreement with Novirio Pharmaceuticals Inc.

Mutual Non-Disclosure Agreement with NxStage Medical Inc.

Manufacturing and Supply Agreement with NxStage Medical Inc. (Draft)

Confidentiality Agreement with Nycomed Ireland

Manufacturing and Supply Agreement with Organon Laboratories Ltd (Draft)

Manufacturing Agreement with Seton Healthcare Group PLC

Secrecy Agreement with Stedim S.A.

Mutual Non-Disclosure Agreement with Technoflex S.A.

Agreement of Intent with Technoflex S.A.

Mutual Non-Disclosure Agreement with Water First Limited National Health Services tender contracts:

Yorkshire NHS Trusts Pharmacy Consortium

Scottish Healthcare Supplies

Central Services Agency (Northern Ireland)

 

80

 

SCHEDULE 5

 

Assumed Employees

 

NAME

         EMP NO.
    DEPT
    JOB TITLE

Xxxxx

    Xxxxxxx    20021    72    Sr. Logistics Administrator

Xxxxxx

    Xxxx    20024    72    Storeperson

Xxxx

    Xxxxxxxxx    20113    72    Logistics Manager

Xxxxx

    Xxxxx    20004    73    Senior Operator

Xxxxxx

    Xxxxxxx    20010    73    Process Operator

Xxxxxxxx

    Xxxxx    20016    73    Process Operator

Xxxxx

    Xxxxx    20035    73    Process Operator

Xxxx

    Xxxxxxx    20060    73    Senior Operator

Xxxxx

    Xxxxxx    20062    73    Senior Operator

Xxx

    Xxxxx    20074    73    Senior Operator

Xxxxxx

    Xxxxxx    20084    73    Senior Operator

Xxxxxx

    Xxxxxxx    20085    73    Process Operator

Xxxxxxx

    Xxxxxxx    20100    73    Senior Operator

Xxxxxx

    XxXxxxxxxx    20166    73    Senior Operator

Xxxxx

    Xxxxxxxx    20199    73    Process Operator

Xxxxxxx

    XxXxxxx    20204    73    Process Operator

Xxxxxx

    Xxxxx    20209    73    Process Operator

Xxxxxx

    Xxxxxxx    20213    73    Process Operator

Xxxxx

    Xxxxxxx    20217    73    Process Operator

Xxxxxx

    Xxxxx    20223    73    Senior Operator/Technician

Xxxxxx

    XxXxxxxx    20229    73    Process Operator

Xxxxxxxxx

    Xxx    20241    73    Process Operator

Xxxxxx

    Xxxxxxxx    20244    73    Process Operator

Xxx-Xxxxx

    Xxxxx    20261    73    Process Operator

Xxxxx

    Xxxxxxxxxxx    20262    73    Process Operator

Xxxxxx

    Xxxxxx    20266    73    Senior Operator

Xxxxx

    Xxxxxxxx    20278    73    Process Operator

Xxxxxxx

    Xxxxxxx    20284    73    Process Operator

Xxxxx

    Xxxxxxxx    20286    73    Process Operator

Xxxx

    Xxxxxx    20295    73    Process Operator

Xxxxxx

    Xxxxxxxx    20296    73    Process Operator

Xxxxx

    XxXxxxxxxxx    20306    73    Process Operator

Xxxxxxx

    X’Xxxxx    20308    73    Process Operator

Xxxxxx

    Xxxxx    20336    73    Process Operator

Xxxx

    Xxxxx    20337    73    Process Operator

Xxxxxxxxx

    Xxxxxxxx    20342    73    Process Operator

Xxx

    Xxxxxxxx    20356    73    Process Operator

Xxx

    Xxxxxxxx    20357    73    Process Operator

Xxxxxxxxx

    Xxxxxx    20364    73    Process Operator

Xxxxxx

    Xxxx    20366    73    Process Operator

Xxxxx

    Xxxxxxxx    20369    73    Process Operator

 

81

Xxxxx

    XxXxxxx    20370    73    Label Store Senior Operator

Xxxxxxx

    Xxxxxxxxx    20383    73    Process Operator

Xxxxxxx

    Xxxxxx    20384    73    Senior Operator

Xxxxxx

    Xxxx    20386    73    Process Operator

Xxxxxxx

    Xxxxxxx    20388    73    Process Operator

Xxxxxxx

    XxXxxxxxx    20389    73    Process Operator

Xxxxxx

    Xxxxxxxx    20405    73    Production Manager

Xxxxxxxx

    Xxxxxx               

Xxxx

    Xxxxxx    20385    74    Process Operator

Xxxxxx

    Xxxxxxxxxx    20413    74    Cleaning Operative

Xxxxxxxx

    Xxx    20422    74    Cleaning Operative

Xxxxx

    Xxxxxx    20423    74    Temp Cleaning Operative

Xxxxx

    Xxxxxx    20006    76    Compound Room Technician

Xxxxx

    Xxxx    20076    76    Disp & Comp Technician

Xxxx

    Xxxxxx    20087    76    Senior Operator

Xxxxx

    Xxxxx    00000    76    Dispensary Technician

Xxx

    Xxxx    20270    76    Disp & Comp Technician

Xxxx

    Xxxxxx    20033    77    Autoclave Operator

Iain Xxxxxxx

    Xxxxxxxxxx    20110    77    Senior Operator

Xxxx

    Xxxxxxxx    20111    77    Senior Operator

Xxxxxxx

    Xxxxxxxx    20235    77    Autoclave Operator

Xxxx Xx

    Xxxxxxxxx    20008    78    Production Supervisor

Xxxxxxx

    Xxxxxxxx    20013    78    Production Co-ordinator

Xxxxx Xxx

    Xxxxxxxx    20015    78    Senior Operator

Xxxxx

    Xxxxxx    20048    78    Supervisor

Xxxxxxxx

    XxXxxxxxxx    20063    78    Senior Operator Grade 4

Xxxxx

    Xxxxx    20065    78    Senior Operator

Xxxxxxx

    Xxxxxxxx    20078    78    Senior Operator

Xxxxx Xxx

    Xxxxxxx    20082    78    Senior Operator

Xxxxxxx

    Xxxx    20120    78    Senior Operator

Xxx

    Xxxxxxx    20153    78    Senior Operator

Xxxxxxx

    Xxxxx    10187    79    Engineering Supervisor

Xxxxxxxx

    Xxxxx    20118    79    Engineering Admin Assistant

Xxxxxxx Xxxxxx

    Xxxxxx    20127    79    Maintenance Engineer

J Xxxxxxx

    Xxxxxxx    20189    79    Maintenance Engineer

Xxxxxxx

    Xxxxxx    20410    79    Maintenance Engineer

Xxxxxxxxxx

    Xxxxxxx    20129    80    Receptionist

Xxxxxxx

    Xxxxx    20132    80    Office Supervisor

Xxxxxxx

    Xxxxxx    20136    00    XX Xxxxx

Xxxx

    Xxxxxx               

Xxxxx

    Xxxxxxx    00000    81    QCT

Xxxxxx

    XxXxxxxxx    20144    81    Project Manager

Xxxxxx

    Xxxxxxxxx    20145    81    Lab Manager, Chemistry IV

Xxxxxx

    XxXxxxxx    20146    81    Solutions Monitor

Xxxx

    XxXxxxx    20147    81    Quality Assurance Manager

Xxxx

    Xxxxxx    20205    81    Senior Operator

Xxxxxx

    Xxxxxxxx    20208    81    Validation Technician

Xxxxx

    Xxxxx    20252    81    Quality Unit Clerk

 

82

Xxxx

    Xxxxxxx    20253    81    Analyst

Xxxxx

    Xxxxxx    20257    81    Microbiologist

Xxxxxxxx

    Xxxxx    20311    81    Quality Unit Clerk

Xxxxxxx

    Xxxxx    20349    81    Development Analyst

Xxxxxxxx

    Xxxxxxxx    20375    81    Analyst (Micro)

Xxxxx

    Xxxxxxx    20401    81    Quality Compliance Officer

Xxxxx

    XxXxx    20407    81    QC Analyst

Xxxxx

    Xxxxxxx    20408    81    Temporary Lab Technican

Xxxxxxx

    X’Xxxxx    20409    81    QC Analyst

Xxxxxx

    XxXxxxxx    20414    81    Quality Unit Clerk

Xxxxxx

    Xxxxxxxx    20419    81    Lab Analyst

Xxxxxxx Xxxx

    Xxxx    20424    81    Quality Compliance Officer

Xxxxxx

    Castles    20425    81    QC Analyst

Xxxxx

    XxXxxxxx    20149    82    Managing Director

Xxxxx

    Xxxxxxxx    11534    93    Microbiologist

 

83

 

SCHEDULE 6

 

The Buyer’s Guarantee

 

1. GUARANTEE

 

The Buyer’s Guarantor irrevocably and unconditionally:

 

1.1 guarantees to the Seller as principal obligor the due and punctual performance and observance by the Buyer of all of its obligations under this Agreement; and

 

1.2 undertakes to indemnify the Seller against all losses, damages, costs and expenses incurred by the Seller arising from any failure by the Buyer to perform and/or observe any of its obligations under this Agreement, provided the Buyer shall not be liable to pay any such losses, damages, costs or expenses to the extent that such losses, damages, costs or expenses arise from or have increased due to any actions taken or omissions made by the Seller or any member of the Seller’s Group,

 

(together “this Buyer’s Guarantee”).

 

2. CONTINUING SECURITY

 

This Buyer’s Guarantee is to be a continuing security which shall remain in full force and effect until all of the obligations of the Buyer under this Agreement shall have been fulfilled or shall have expired in accordance with the terms of this Agreement and this Buyer’s Guarantee is to be in addition, and without prejudice to, and shall not merge with, any other right, remedy, guarantee, indemnity or security which the Seller may now or hereafter hold in respect of all or any of the obligations of the Buyer under this Agreement.

 

3. BUYER’S PROTECTIONS

 

The liability of the Buyer’s Guarantor under this Buyer’s Guarantee shall not be affected, impaired or discharged by reason of any act, omission, matter or thing which, but for this provision, might operate to release or otherwise exonerate the Buyer’s Guarantor from its obligations hereunder including, without limitation:

 

3.1 any amendment, variation or modification to, or replacement of this Agreement in accordance with Clause 23 of this Agreement unless such amendment would result in increasing the liability of the Buyer’s Guarantor and has not been acquiesced in and executed by the Buyer’s Guarantor; and

 

3.2 the taking, variation, compromise, renewal, release, refusal or neglect to perfect or enforce any rights, remedies or securities against the Buyer or any other person;

 

3.3 any time or indulgence or waiver given to, or composition made with, the Buyer or any other person; or

 

84

3.4 the Buyer becoming insolvent, going into receivership or liquidation or having an administrator appointed.

 

4. FURTHER PROTECTION

 

This Buyer’s Guarantee shall continue in full force and effect notwithstanding:

 

4.1 that any purported obligation of the Buyer or any other person to the Seller (or any security therefor) becomes wholly or partly void, invalid or unenforceable for any reason whether or not known to the Seller or the Buyer’s Guarantor; or

 

4.2 any incapacity or any change in the constitution of, or any amalgamation or reconstruction of, the Buyer’s Guarantor or the Buyer or any other matter whatsoever.

 

5. PRIMARY OBLIGATIONS

 

This Buyer’s Guarantee shall constitute the primary obligations of the Buyer’s Guarantor and the Seller shall not be obliged to make any demand on the Buyer before enforcing its rights against the Buyer’s Guarantor under this Guarantee, but Seller shall make demand on the Buyer at least contemporaneously with its demand on the Buyer’s Guarantor.

 

6. WAIVER

 

No delay or omission of the Seller in exercising any right, power or privilege under this Guarantee shall impair such right, power or privilege or be construed as a waiver of such right, power or privilege nor shall any single or partial exercise of any such right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege.

 

7. INVALIDITY

 

If at any time any one or more of the provisions of this Guarantee is or becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions hereof shall not be in any way affected or impaired thereby.

 

8. ASSIGNMENT

 

In the event of a change of control of the Buyer’s Guarantor, the Buyer’s Guarantor shall be free to assign, sub-contract or otherwise transfer this guarantee or its rights and obligations hereunder to another member of the Buyer’s Group.

 

85

 

SCHEDULE 7

 

The Seller’s Guarantee

 

1. GUARANTEE

 

The Seller’s Guarantor irrevocably and unconditionally:

 

1.1 guarantees to the Buyer as principal obligor the due and punctual performance and observance by the Seller of all of its obligations under this Agreement; and

 

1.2 undertakes to indemnify the Buyer against all losses, damages, costs and expenses incurred by the Buyer arising from any failure by the Seller to perform and/or observe any of its obligations under this Agreement, provided the Seller shall not be liable to pay any such losses, damages, costs or expenses to the extent that such losses, damages, costs or expenses arise from or have increased due to any actions taken or omissions made by the Buyer or any member of the Buyer’s Group,

 

(together “this Seller’s Guarantee”).

 

2. CONTINUING SECURITY

 

This Seller’s Guarantee is to be a continuing security which shall remain in full force and effect until all of the obligations of the Seller under this Agreement shall have been fulfilled or shall have expired in accordance with the terms of this agreement and this Seller’s Guarantee is to be in addition, and without prejudice to, and shall not merge with, any other right, remedy, guarantee, indemnity or security which the Buyer may now or hereafter hold in respect of all or any of the obligations of the Seller under this Agreement.

 

3. BUYER’S PROTECTIONS

 

The liability of the Seller’s Guarantor under this Seller’s Guarantee shall not be affected, impaired or discharged by reason of any act, omission, matter or thing which but for this provision might operate to release or otherwise exonerate the Seller’s Guarantor from its obligations hereunder including, without limitation:

 

3.1 any amendment, variation or modification to, or replacement of this Agreement in accordance with Clause 23 of this Agreement unless such amendment would result in increasing the liability of the Seller’s Guarantor and has not been acquiesced in and executed by the Seller’s Guarantor; and

 

3.2 the taking, variation, compromise, renewal, release, refusal or neglect to perfect or enforce any rights, remedies or securities against the Seller or any other person;

 

3.3 any time or indulgence or waiver given to, or composition made with, the Seller or any other person; or

 

86

3.4 the Seller becoming insolvent, going into receivership or liquidation or having an administrator appointed.

 

4. FURTHER PROTECTION

 

This Seller’s Guarantee shall continue in full force and effect notwithstanding:

 

4.1 that any purported obligation of the Seller or any other person to the Buyer (or any security therefor) becomes wholly or partly void, invalid or unenforceable for any reason whether or not known to the Seller or the Seller’s Guarantor; or

 

4.2 any incapacity or any change in the constitution of, or any amalgamation or reconstruction of, the Seller’s Guarantor or the Seller or any other matter whatsoever.

 

5. PRIMARY OBLIGATIONS

 

This Seller’s Guarantee shall constitute the primary obligations of the Buyer’s Guarantor and the Seller shall not be obliged to make any demand on the Seller before enforcing its rights against the Seller’s Guarantor under this Guarantee, but the Buyer shall make demand on the Seller at least contemporaneously with its demand on the Seller’s Guarantor.

 

6. WAIVER

 

No delay or omission of the Buyer in exercising any right, power or privilege under this Guarantee shall impair such right, power or privilege or be construed as a waiver of such right, power or privilege nor shall any single or partial exercise of any such right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege.

 

7. INVALIDITY

 

If at any time any one or more of the provisions of this Guarantee is or becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions hereof shall not be in any way affected or impaired thereby.

 

8. ASSIGNMENT

 

In the event of a change of control of the Seller’s Guarantor, the Seller’s Guarantor shall be free to assign, sub-contract or otherwise transfer this guarantee or its rights and obligations hereunder to another member of the Seller’s Group.

 

87

 

SCHEDULE 8

 

Data Room Index

 

1.1 Statutory books of Ivex Pharmaceuticals Limited

 

1.2 Statutory books of Xxxxx Research Laboratories Limited and Xxxxx (UK) Limited

 

2.1 MHRA Marketing Authorisations – Ivex Pharmaceuticals Limited

 

Intraneal Xx. 0

Xxxxxxxxx Xx. 0

Xxxxxxxxx Xx. 0

Plegivex Cardioplegia Solution

Sterile Chlorhexidine Solution for Irrigation 0.02% w/v

Sterile Chlorhexidine Solution for Irrigation 0.05% w/v

Sterile Chlorhexidine Solution 1.0% w/v

Sterile Chlorhexidine Solution 1.0% w/v (Red)

Sterile Chlorhexidine Solution 0.5% w/v

Sterile Chlorhexidine Solution 0.05% w/v

0.5% w/v Chlorhexidine in 70% v/v Industrial Methylated Spirit

Chlorhexidine Gluconate Solution 5.0% w/v

Surgiscrub

Xxxxxx’x Solution for Infusion

Ringer’s Solution for Infusion

CPD-50 Solution

Glucose 50% w/v IV Infusion BP

Half Strength Xxxxxxxx’x Solution with 5% w/v Glucose IV Infusion

0.45% w/v Sodium Chloride and 5% w/v Glucose IV Infusion

Metrovex

 

MHRA Marketing Authorisations – Xxxxx Research Laboratories Limited

 

Sterile Water for Irrigation

Sodium Chloride 0.9% w/v for Irrigation

Sodium Chloride 0.9% w/v for IV Infusion BP

Dextrose Injection BP 5% w/v

Dextrose Injection BP 10% w/v

Sodium Chloride 0.9% w/v and Dextrose 5% w/v Injection BP

Sodium Lactate IV Infusion BP

Compound Sodium Lactate IV Infusion BP

Sodium Chloride 0.45% w/v IV Infusion BP

Sodium Chloride 0.18% w/v and Dextrose 4% w/v Injection BP

Sterile Chlorhexidine Solution 0.05% w/v

Potassium Chloride 0.3% w/v and Sodium Chloride 0.9% w/v Injection BP

Potassium Chloride 0.3% w/v and Dextrose 5% w/v IV Infusion BP

Potassium Chloride 0.2% w/v and Sodium Chloride 0.9% w/v IV Infusion BP

Potassium Chloride 0.2% w/v and Glucose 5% w/v IV Infusion XX

Xxxxxxxxx Xx. 0

Potassium Chloride 0.15% w/v and Sodium Chloride 0.9% w/v IV Infusion BP

Potassium Chloride 0.15% w/v and Glucose 5% w/v IV Infusion BP

Potassium Chloride 0.15% w/v, Sodium Chloride 0.18% w/v and Glucose 4% w/v IV Infusion BP

Glucose 20% w/v IV Infusion BP

Mannitol 10% w/v IV Infusion BP

Mannitol 20% w/v IV Infusion BP

 

88

Sterile Sodium Citrate Solution 3% w/v for Irrigation

Sterile Chlorhexidine Solution 1.0% w/v

Sterile Chlorhexidine Solution 0.5% w/v

Sterile Chlorhexidine Solution 0.05% w/v

Sodium Chloride 0.45% w/v, Potassium Chloride 0.15% w/v and Glucose 5% w/v IV Infusion

Potassium Chloride 0.2% w/v, Sodium Chloride 0.18% w/v and Glucose 4% w/v IV Infusion BP

Potassium Chloride 0.3% w/v, Sodium Chloride 0.18% w/v and Glucose 4% w/v IV Infusion BP

 

IMB Marketing Authorisations – Ivex Pharmaceuticals Limited

 

Sterile Water for Irrigation

Sodium Chloride 0.9% w/v for Irrigation

Metronidazole Infusion 5mg/ml (Metrovex)

 

IMB Marketing Authorisations – Xxxxx Research Laboratories Limited

 

Sodium Chloride IV Infusion BP 0.9% w/v

Sodium Chloride IV Infusion BP 0.45% w/v

Glucose IV Infusion BP 5% w/v

Glucose IV Infusion BP 10% w/v

Sterile Water for Irrigation

Sodium Lactate Injection BP – 500ml

Sodium Lactate Injection BP – 1000ml

Compound Sodium Lactate IV Infusion BP

Sodium Chloride 0.18% w/v and Dextrose 4% w/v IV Infusion BP

Sodium Chloride 0.9% w/v and Dextrose 5% w/v IV Infusion BP

 

VMD Marketing Authorisations (UK) – Ivex Pharmaceuticals Limited

 

Isolec

Vetivex 20

Vetivex 1

Isolec

Vetivex 6

Vetivex 18

Vetivex 3

Vetivex 9 (Ringer’s Solution for Injection)

 

VMD Marketing Authorisations (RoI) – Ivex Pharmaceuticals Limited

 

Isolec

 

Medical Devices Registrations – Ivex Pharmaceuticals Limited

 

Sterac Water

Sterac Saline

Sterac Saline 20ml

Emergency Eye Wash

Cathcare S

Cathcare W

Cathcare R

Cathcare G

Cathcare C

Glycine 1.5% w/v for Irrigation

Haemodialysis Solutions

 

Facility Approvals - Ivex Pharmaceuticals Limited

 

Establishment Inspection Report by FDA

Lloyd’s Register Quality Management System Standards

 

89

Medicinal Product FDA Site Registration

Medical Device FDA Site Registration

MHRA Manufacturer’s Licence

MHRA Manufacturer’s “Specials” Licence

MHRA Wholesale Dealer’s Licence

 

3.1 UK patent office trademark registrations for:

 

VetIvex

Plegivex

Cathcare

Intraneal

Sterexidine

Sterac

Metrovex

Haemovex

Clinisol

Intraven

Cetexidine

Clinilyte

Clinivex

 

Republic of Ireland patent office trademark registrations for:

 

Metrovex

Haemovex

 

4.1 Xxxxx Holdings plc 2002 Annual Report and Accounts

Xxxxx Holdings plc 2003 Interim Report and Accounts

Xxxxx (UK) Limited report and financial statements for period to 30 September 2002

Xxxxx Research Laboratories Limited financial statements for y/e 30 September 2002

 

4.2 Ivex Pharmaceuticals Limited Annual Report for y/e 30 September 2002

Ivex Pharmaceuticals Limited Annual Report for y/e 30 September 2003

 

4.3 Ivex Pharmaceuticals Limited projections from 1 October 2003 to 30 September 2005

 

4.4 General ledger reports at 30 September 2003, 30 November 2003 and 29 February 2004

 

4.5 Aged debtors report at 30 September 2003 and 29 February 2004

 

5.2 Listing of debtors balances > 2 months old: period from February to November 2003

Listing of potential bad debts at 31 December 2003

 

5.4 Analysis of sales by category by customer (1 October 1999 to 30 September 2003)

 

5.6 Confidentiality Agreement with Xxxxxx Healthcare Limited

Confidentiality Agreement with Xxxxxx XX/NV

Supply Agreement with Xxxxxx X.X.

Technical Agreement with Xxxxxx Healthcare Limited

Technical Agreement with Biosol S.p.A.

Technical Agreement with Boots Company PLC

Agreement with Ciba Vision Ophthalmics GmbH

Agreement with Ciba Vision Ophthalmics UK Limited

Contract Manufacturing Agreement with Ciba Vision AG (Draft)

Development Agreement with COBE BCT Inc.

Non-Disclosure Agreement with COBE BCT Inc.

Technical Contract with Coloplast Continence Care Division

Commercial Agreement for Stability Development and Validation with Xxxxxxx Lifesciences BV (Draft)

 

90

Manufacturing and Supply Agreement with Xxxxxxx Lifesciences AG (Draft)

Mutual Confidentiality Agreement with Xxxxxxx Lifesciences SA (Draft)

Manufacturing and Supply Agreement with Excorim AB

Contract Manufacturing Agreement with Fresenius Kabi Limited

Manufacturing and Supply Agreement with Gambro BCT

Riboflavin Stability Contract with Gambro BCT Inc.

Manufacturing and Supply Agreement with Hospal International Marketing Management S.N.C. and Gambro Lundia AB

Agreement with Haemonetics S.A. (December 1995)

Agreement with Haemonetics S.A. (February 1996)

Agreement with Haemonetics S.A. (August 1996)

Agreement with Haemonetics S.A. (September 1997)

Agreement with Haemonetics S.A. (September 1997)

Agreement with Haemonetics S.A. (September 1997)

Non-Disclosure Agreement with IV Direct Limited

Mutual Non-Disclosure Agreement with X.X.Xxxxx Pharmacien

Confidentiality Agreement with Xxxxxx International Inc. and Technomark Consulting Services Limited

Confidentiality Agreement with Laboratoires UPSA

Manufacturing and Supply Agreement with Maelor Pharmaceuticals Limited

Mutual Non-Disclosure Agreement with Maelor Pharmaceuticals Limited

Confidentiality Agreement with Maelor Pharmaceutical Supplies Limited

Confidentiality Agreement with Mindset BioPharmaceuticals (USA) Inc.

Manufacturing and Supply Agreement with ML Laboratories PLC

Assignment and Novation Agreement with ML Laboratories PLC and Shire Pharmaceutical Contracts Limited

Confidentiality Agreement with ML Laboratories Limited

Mutual Non-Disclosure Agreement with Novirio Pharmaceuticals Inc.

Mutual Non-Disclosure Agreement with NxStage Medical Inc.

Manufacturing and Supply Agreement with NxStage Medical Inc. (Draft)

Confidentiality Agreement with Nycomed Ireland

Manufacturing and Supply Agreement with Organon Laboratories Ltd (Draft)

Manufacturing Agreement with Seton Healthcare Group PLC

Secrecy Agreement with Stedim S.A.

Mutual Non-Disclosure Agreement with Technoflex S.A.

Agreement of Intent with Technoflex S.A.

Mutual Non-Disclosure Agreement with Water First Limited

 

5.7 National Health Services tender contracts:

 

Yorkshire NHS Trusts Pharmacy Consortium

Scottish Healthcare Supplies

Central Services Agency (Northern Ireland)

 

5.10 Sales and marketing literature re: Isolec and VetIvex products

 

5.11 Ivex Pharmaceuticals Limited: index of product prices

 

5.12 Overview of customer service organisation

 

5.13 Analysis of sales by product for y/e 30 September 2002

Mapping of product sales codes to related MHRA Marketing Authorisations

 

5.15 Ivex strategy statement

 

6.2 Detailed listing of stock on hand (units and value) at 30 September 2003

Analysis of stock provision movement in y/e 30 September 2003

Report of shelf-life expiry dates on finished goods in stock at 9 January 2004

 

6.3 Details of stock write-offs during 2002 and 2003

 

91

6.5 Report of purchases by supplier from 1 October 2001 to 30 September 2003

 

7.1 Aged creditors report at 30 September 2003

Listing of ‘open’ purchase orders at 5 January 2004

 

7.5 Report of goods receipts for 2002 and 2003 (raw materials and starting materials)

 

8.1 Analysis of prepayments and accrued liabilities at 30 September 2003

 

9.1 Listing of plant equipment to transfer as part of transaction

Listing of laboratory equipment to transfer as part of transaction

Invoice analysis re: cost of plant and laboratory equipment to transfer as part of transaction

Listing of computer hardware and software to transfer as part of transaction

 

9.5 Weekly plant equipment maintenance records for 2003

 

9.7 Schedule of car leases (including monthly costs and lease expiry dates)

Vehicle Management Services Agreements

Maintenance contract with Waters Chromatography Ireland Limited

 

10.1 Corporation tax computation for year ended 30 September 2002

Company tax returns (CT600) for year ended 30 September 2002

Corporation tax computation for year ended 30 September 2003 (Draft)

 

10.2 VAT returns (quarterly basis) for year ended 30 September 2003

 

10.3 PAYE and NIC returns (monthly basis) for period April 2003 to September 2003

 

12.1 Xxxxx Holdings plc insurance summary for Larne site (details provided re: buildings, contents, stock and business interruption coverages only)

 

13.1 Waste disposal regulations and compliance records

 

13.2 Environmental licences:

 

Department of Environment (NI) consent to discharge trade effluent

BSI Certificate of Registration for Environmental Management System

BSI continuing assessment visit report (13 March 2003)

 

Oil spillage report dated June 19, 1994

 

13.3 Department of Health, Social Services and Public Safety licences:

 

Possession of morphine

Possess, produce and supply of fentanyl

 

13.4 Details of recycling programs

 

14.1 Employee details:

 

Name

Department

Job title

Annual salary (basic)

Number of hours worked (per week)

Employee pension contribution %

Permanent Health Insurance

Life Cover

Private Medical Insurance

Car

Bonus

 

92

Executive Share Options

Age

Length of service

Savings-Related Share Option Scheme contributions

 

14.2 Ivex Pharmaceuticals Limited organisation chart (January 2004)

 

14.3 Terms and conditions of employment for Ivex senior management:

 

Xxxxx XxXxxxxx

Xxxxx Xxxxx

Xxx XxXxxxxxx

Xxxx XxXxxxx

Xxxx Xxxxxxxxx

Xxxxxx Xxxxxxxx

Xxxxxxx Xxxxx

Xxxxxx Xxxxxxxxx

Xxxxxxx Xxxxxxxx (nee XxXxxx)

Xxxxx Xxxxxxx

Xxxxx Xxxxxx

 

‘Standard’ terms and conditions of employment:

 

Managerial

Over £8.25 per hour

Under £8.25 per hour (production operative)

Under £8.25 per hour (non-production operative)

Temporary worker

 

14.4 Employee Information Binder (updated May 2003)

 

14.5 Union Recognition and Procedural Agreement

 

14.7 Employee Tribunal cases since January 2002

 

14.8 Xxxxx Limited No. 2 Retirement Benefits Scheme (with Scottish Life)

Xxxxx Limited Group Personal Pension plan (with Standard Life)

Xxxxx Limited Occupational Pension plan (with Standard Life)

 

14.9 Xxxxx Holdings Limited Savings-Related Share Option Scheme

Rules of the Xxxxx Holdings plc Approved and Unapproved Share Option Schemes

Xxxxx Holdings plc 2000 US (Executive) Option Scheme (amended May 13, 2003)

Executive share options issued to Ivex senior management (14 November 2002)

 

14.10  List of ‘key’ employee resignations during 2002 and 2003

 

14.11  Employee benefit plans:

 

Life Assurance

Long Term Disability

VIP Executive Business Express

Cost of private medical insurance (per month) for Ivex senior management

 

14.13  List of employees on long term sickness leave
           List of employees on maternity leave

 

16.1 Analysis of production capacity per line per single shift (by product volume)

 

16.3 Listing of Ivex materials in stability xxxxxxxx 2, 3 and 4

 

16.4 Standard Operating Procedures (SOPs):

 

Production

 

93

Quality Control

Quality Assurance

Microbiology

Engineering

Stores

Administration

 

16.5 Manufacturing flow chart

 

16.9 Plant and laboratory equipment ‘gap’ analysis

 

16.14  Manufacturing variances per line (December 2002 to October 2003)

 

16.15  Details of operations related software:

 

TREND - building management system

PEMAC – planned engineering maintenance and stores control system

 

16.19  Quality complaints received from customers (2002 and 2003)
           Medical/Technical information requests (2002 and 2003)
           Quality complaints made to suppliers (2003)

 

16.20  Production deviations during 2002 and 2003

 

17.1 Health and Safety Policy Handbook

Accident statistics 1996-2002

Accident and occupational ill health report summary for 2003

Health and Safety claims made during 2002 and 2003

Fair Employment Monitoring Return (February 2002 to February 2003)

Environmental incident reports for 2001-2003

Northern Ireland Fire Brigade exemption notice

 

19.1 Summary of current stability studies

 

94

 

SCHEDULE 9

 

Business Intellectual Property and IP Licences

 

Business Intellectual Property

 

As disclosed in the Data Room

 

IP Licences

 

As disclosed in the Data Xxxx

 

00

Signed by XXXXXXXX XXXXXXX

For and on behalf of IVEX

PHARMACEUTICALS LIMITED

   

)

)

  

 

 

EXECUTED and DELIVERED

as a Deed by XXXXXX XXXXXXXXX

who was appointed under a Power of

Attorney dated 28th April 2004

For and on behalf of XXXXX HOLDINGS, plc.

   

)

)

 

  

 

 

Signed by XXXX XXXXX

for and on behalf of GAMBRO

NORTHERN IRELAND LIMITED:

   

)

)

  

 

EXECUTED and DELIVERED

as a Deed by

XXXXX XXXXX and another authorized

representative of Gambro BCT, Inc.,

for and on behalf of GAMBRO BCT, INC.

   

)

)

 

  

 

 

 

 

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Filed: July 18th, 2005
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