DATED 22 NOVEMBER 2000
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(1) OMNICARE LIMITED
(2) XXXXXXX-XXXXX SQUIBB HOLDINGS LIMITED
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A G R E E M E N T
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For the sale and purchase of the entire issued share capital of Amcare
Limited together with its subsidiary Novacare UK Limited
EVERSHEDS
0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxxxx XX0 0XX
Tel: 0000 0000000
Fax: 0000 0000000
NOT_L001\152784v11
THIS AGREEMENT is made on 22 November 2000
BETWEEN
(1) OMNICARE LIMITED (registered number 3073148) whose registered office is
at Xxxxxxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxxxx XX00
0XX ("the Vendor"); and
(2) XXXXXXX-XXXXX SQUIBB HOLDINGS LIMITED (registered number 263455) whose
registered office and principal place of business is at Xxxxxxxx Xxxxx,
Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, XX00 0XX ("the Purchaser").
OPERATIVE PROVISIONS
1. INTERPRETATION
In this Agreement:
1.1 the following expressions have the following meanings unless
inconsistent with the context:
"THE A WARRANTIES" the warranties given in Schedule 3 and Schedule
4 expressed on terms as set out in clause 4.1.1
and marked with an asterisk
"THE ACCOUNTS DATE" 30 September 2000
"THE ACT" the Companies Xxx 0000, as amended
"ASSOCIATED COMPANY" any company, not being a Group Member, which at
the relevant time is:
(a) a holding company of the Vendor; or
(b) a subsidiary or subsidiary
undertaking of the Vendor; or
(c) a subsidiary or subsidiary
undertaking (other than the Vendor
itself) of any such holding company,
1
the expressions "holding company", "subsidiary"
and "subsidiary undertaking" having the
meanings given to them by the Act
"THE B WARRANTIES" the warranties given in Schedule 3 and Schedule
4, other than the A Warranties
"BUSINESS DAY" any day (other than Saturday or Sunday) on
which Clearing Banks are open for a full range
of banking transactions
"CLAIMS" means any claim disclosed against warranty 6.4
of Schedule 3
"CLEARING BANK" a bank which is a member of CHAPS Clearing
Company Limited
"THE CMS LETTER" the letter dated 27 October 2000 from CMS
Xxxxxxx XxXxxxx in the agreed form as
initialled on behalf of both the Vendor and the
Purchaser
"THE COMPANY" Amcare Limited, registered number 3191025 whose
registered office is at 00X Xxxxxxx Xxx,
Xxxxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx & Xxxx
XX0 0XX
"COMPLETION" Completion of the sale and purchase in
accordance with clause 6
"THE CONSIDERATION" the consideration for the sale of the Shares
and for procuring the transfer of the Domain
Name as stated in clause 3.1
"THE DISCLOSURE LETTER" the letter having the same date as this
Agreement from the Vendor to the Purchaser
qualifying the Warranties
"DOMAIN NAME" www. xxxxxx.xx.xx
"THE GROUP"
the Company and the Subsidiary details of which
are set out in Schedule 1
2
"GROUP MEMBER" any company which is a member of the Group
"THE GROUP PERSONAL the Omnicare Group Personal Pension Scheme
PENSION SCHEME"
"THE GUARANTEES" the guarantees given by the Group Members in a
Senior Credit Agreement dated 17 December 1999
(as amended by an Amendment Agreement dated 14
January 2000) and a Mezzanine Credit Agreement
dated 17 December 1999 (as amended by an
Amendment Agreement dated 14 January 2000) and
any and all other obligations, liabilities,
claims, demands and actions, whether past,
present or future, and in whatever capacity,
under those said Agreements.
"INSURANCE POLICY" means any policy disclosed against warranty 6.2
of Schedule 3
"THE LIFE ASSURANCE the Amcare Group Life Scheme
SCHEME"
"LISTING" has the meaning given in Schedule 3 paragraph
10.6.1
"MATERIAL AGREEMENT" has the meaning given in Schedule 3 paragraph
10.2.1
"THE PROPERTY" the property specified in Schedule 2 (and, if
more than one, each such property) and each and
every part of such property
"THE PURCHASER'S Xxxxxxxxx & May of 00 Xxxxxxxxxx Xxxxxx, Xxxxxx
XXXXXXXXXX" XX0X 0XX
"RESTRICTED BUSINESS" has the meaning given in clause 5.1.3
"RETAINED GROUP" the Vendor, the ultimate holding company of the
Vendor and all subsidiary companies of that
holding company (other than the Group). The
terms "holding company" and "subsidiary
company" shall have the meanings set out in
Section 736 Companies Xxx 0000.
3
"SETTLEMENT AGREEMENT" means the Agreement dated 16 November 2000
between Lincolnshire, Sunderland,
Gloucestershire, North Nottinghamshire,
Nottingham, Xxxx Xxxx, Dyfed Powys, Manchester
and Shropshire Health Authorities (1) and
Amcare Limited, Novacare UK Limited, Omnicare
Limited, Transworld Healthcare (UK) Limited and
Transworld Holdings (UK) Limited (2)
"THE SECURITY" A debenture dated 17 December 1999 between
Barclays Bank PLC and Amcare Limited;
A debenture dated 17 December 1999 between
Barclays Bank PLC and Novacare UK Limited;
A debenture dated 17 December 1999 between BNP
Paribas and Novacare UK Limited;
A debenture dated 17 December 1999 between BNP
Paribas and Amcare Limited.
"THE SHARES" the entire issued share capital of the Company
"THE SUBSIDIARY" Novacare UK Limited, registered number 3196506
whose registered office is at Xxxx 00 Xxxxxx
Xxxxx, Xxxxxxxxxx 50, Telford, Salop XX0 0XX
"THE TAX COVENANT" means the covenant contained in the Tax Deed
the agreed form of which is contained in
Schedule 4 of this agreement
"THE VENDOR'S Eversheds of 0 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxxxxx
XXXXXXXXXX" XX0 0XX
"THE WARRANTIES" the A Warranties and the B Warranties
1.2 references to any statute or statutory provisions will include any
orders, regulations, instruments or other subordinate legislation made
under the relevant statute or statutory provisions which are in force
prior to Completion;
1.3 references to persons will be construed so as to include bodies
corporate, unincorporated associations and partnerships;
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1.4 references to a document being "in the agreed terms" will be construed
as references to that document in the form agreed and initialled by or
on behalf of the Vendor and the Purchaser;
1.5 references to clauses and Schedules are to clauses of and Schedules to
this Agreement, and references to paragraphs are to paragraphs in the
Schedule in which such references appear;
1.6 the Schedules form part of this Agreement and will have the same force
and effect as if expressly set out in the body of this Agreement; and
1.7 the headings to the clauses of this Agreement and to the paragraphs of
the Schedules (save for the headings in Schedules 1 and 2) will not
affect its construction.
2. SALE AND PURCHASE
2.1 With effect from Completion, the Vendor will sell with full title
guarantee, and the Purchaser will buy, the Shares.
2.2 The Vendor shall procure the transfer of the registration of the Domain
Name to the Company with effect from Completion.
2.3 The Purchaser will not be obliged to complete the purchase of any of
the Shares unless the purchase of all the Shares is completed
simultaneously.
3. CONSIDERATION
3.1 The consideration for the sale of the Shares referred to in clause 2.1
shall be (pound)9,749,999 and, without prejudice to any claim for
damages, for procuring the transfer of the registration of the Domain
Name referred to in clause 2.2, the sum of (pound)1.
3.2 The Consideration will be paid in sterling and in cash on Completion by
way of a CHAPS transfer from a Clearing Bank to the client account of
the Vendor's Solicitors with National Westminster Bank PLC, 3 Thurland
Street, P O Xxx 00, Xxxxxxxxxx XX0 0XX, sort code 60-80-09, account
number 00000000. The Vendor's Solicitors are authorised to receive the
Consideration on behalf of the Vendor and payment to them will be a
good and sufficient discharge to the Purchaser and the Purchaser will
not be further concerned as to the application of the moneys so paid.
4. WARRANTIES
4.1 The Vendor warrants to the Purchaser that:-
4.1.1 each of the A Warranties is true and accurate and is not
misleading; and
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4.1.2 so far as the Vendor is aware, having made all reasonable
enquiry in the circumstances into the subject matter of the
Warranty, each of the B Warranties is true and accurate and is
not misleading, provided that the level of the Vendor's
awareness for these purposes shall only be assessed by
reference to the actual knowledge or awareness of Xxxxxxx
Xxxxxxxx, Xxxxxx Xxxxxx and Xxxx Xxxxx and shall mean that the
Vendor undertakes that it has made due and careful enquiry of
such named persons and that it has caused such named persons
to make due and careful enquiries as to the relevant matters,
but that no other enquiries have been made.
Provided however that the Purchaser will not be entitled to claim that
any fact or combination of facts constitutes a breach of any of the
Warranties if and to the extent that:
4.1.3 such fact or combination or facts has been fairly disclosed in
the Disclosure Letter; or
4.1.4 the Purchaser has actual knowledge of such fact or combination
of facts provided that the Purchaser's knowledge for these
purposes shall be deemed to include the actual knowledge of
the Purchaser's advisers other than Xxxxxxxxxxx Xxxxxx or any
other partner, employee or consultant of CMS Xxxxxxx XxXxxxx
save as to the content of the CMS Letter
provided that the provisions of this Clause 4.1 shall not exclude any
liability for, or remedy arising from, fraud, including any fraudulent
mis-statement, by the Vendor.
4.2 The Purchaser acknowledges that:
4.2.1 save for any fact or combination of facts disclosed pursuant
to sub-clauses 4.1.3 and 4.1.4 this Agreement sets forth the
entire agreement between the parties with respect to the
subject matter covered by it and supersedes and replaces all
prior communications, drafts, representations, warranties,
stipulations, undertakings and agreements of what ever nature,
whether oral or written, between the parties;
4.2.2 it does not enter into this Agreement in reliance on any
warranty, representation, undertaking, stipulation or
agreement other than the Warranties and the matters disclosed
in the Disclosure Letter or in this Agreement;
4.2.3 its only remedies are for breach of contract;
6
4.2.4 it has no right to rescind this Agreement either for breach of
contract or for negligent or innocent misrepresentation;
4.2.5 without prejudice to the generality of the foregoing, the
Purchaser waives any right or remedy it may have against the
Vendor, in respect of any statement (whether oral or written)
of fact or opinion, including any untrue or misleading
statement, warranty or representation, expressed or implied,
made to the Purchaser or its agents, officers or employees
during the negotiation of or otherwise in connection with this
Agreement, save for any Warranty and the replies to enquiries
before contract in respect of the Property; and
4.2.6 the Consideration has been agreed by the Vendor and the
Purchaser having regard, amongst other things, to the
provisions of this clause 4.2,
provided that the provisions of this clause 4.2 shall not exclude any
liability which the Vendor would otherwise have to the Purchaser or any
right which the Purchaser may have to rescind this Agreement in respect
of any statements made fraudulently by the Vendor prior to the
execution of this Agreement.
4.3 Save in respect of the liability of the Vendor under clause 10.3 and
clause 10.4 of this Agreement notwithstanding any other provisions of
this Agreement the liability of the Vendor shall be limited in
accordance with the provisions of Schedule 5.
4.4 The Vendor accepts that the Purchaser is entering into this agreement
in reliance upon representations in the terms of the Warranties made by
the Vendor with the intention of inducing the Purchaser to enter into
this Agreement and that accordingly the Purchaser has been induced to
enter into this Agreement provided however that the Purchaser shall
have no right to rescind this Agreement for innocent or negligent
breach of such representations.
4.5 The Vendor undertakes (if any claim is made against it in connection
with the sale of the Shares to the Purchaser) not to make any claim
against any Group Member or any director or employee of the Group
Member (including but not limited to Xxxxxx Xxxxxx) on whom any of them
may have relied before agreeing to any terms of this Agreement
including the schedules or authorising any statement in the Disclosure
Letter.
4.6 Each of the Warranties shall be construed as a separate and independent
warranty and shall not be limited or restricted by reference to or
inference from the terms of any other Warranty or any term of this
Agreement.
7
5. RESTRICTIVE COVENANTS
5.1 For the purpose of assuring to the Purchaser the full benefit of the
business carried out by each Group Member and in consideration for the
Purchaser agreeing to buy the Shares on the terms of this Agreement,
the Vendor undertakes to the Purchaser and the Group that the Vendor
will not, and will procure that no Associated Company will without the
prior written consent of the Purchaser, whether directly or indirectly
and whether alone or in conjunction with, or on behalf of, any other
person and whether as principal, shareholder, director, employee,
agent, consultant, partner or otherwise:
5.1.1 for a period of two years immediately following Completion,
interfere, or seek to interfere, with the continuance of
supplies to any Group Member from any supplier who has been
supplying goods and/or services to any Group Member at any
time during the twelve months immediately preceding the date
of Completion or, without limiting the effect of clause 5.1.3,
interfere, or seek to interfere, with the continuance of
supplies of goods and/or services by any Group Member to any
customer who has been a customer of any Group Member at any
time during the twelve months immediately preceding the date
of Completion where such goods and/or services are used for
the same or similar purposes as the goods and/or services
supplied by any of the Group Members to that customer during
the period of twelve months prior to the date of Completion;
5.1.2 for a period of one year immediately following Completion,
solicit or entice, or endeavour to solicit or entice, away
from any Group Member, any person employed in a managerial
capacity (including, but not limited to, Xxxxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxx Xxxxxxx Xxxxxxx and Xxxx
Xxxxx) by, or who is or was a consultant to (including, but
not limited to Xxxxxxx Xxxxxxxx), or who is a sales
representative for, any Group Member at Completion or at any
time during the period of twelve months immediately preceding
the date of Completion provided that this restriction shall
not apply further placing of job advertisements in national or
local newspapers or the notification of vacancies for
employment agencies;
5.1.3 within the United Kingdom for a period of two years
immediately following Completion be engaged, or interested in,
or provide technical, commercial or professional advice to,
any other business which directly competes with the business
of any Group Member as carried on at Completion ("RESTRICTED
BUSINESS") provided that this restriction does not apply to
prevent the Vendor or any Associated Company from holding
shares or other securities in any company which are quoted,
listed or otherwise dealt in on a recognised stock exchange or
other securities market and which
8
confer not more than 5 per cent of the votes which could be
cast at a general meeting of such company; or
5.1.4 without prejudice to any Group Company's intellectual property
rights (whether by virtue of statute, common law or
otherwise), for a period of three years following Completion
use in connection with any business which directly competes
with the business of any Group Member any name or xxxx which
consists or comprises of, or is confusingly similar to, the
words "Amcare" or "Novacare PROVIDED THAT:
5.1.4.1 nothing in this clause shall prevent any
member of the Retained Group from using the
names "Allied Medical", "Allied Medicare" or
"Allied Healthcare"; and
5.1.4.2 nothing in this clause shall imply that any
member of the Retained Group has the right
to use any name or xxxx comprising or
consisting of, or confusingly similar to,
the words "Amcare" or "Novacare" on
termination of the three year period from
Completion.
5.2 The Purchaser undertakes to the Vendor that for a period of three years
following Completion it will not use and undertakes that for the same
period no Group Member will use in connection with any business the
same as or similar to the business of any member of the Retained Group
any name or xxxx which consists or comprises of the names "Allied
Medical", "Allied Medicare" or "Allied Healthcare" (in whatever form)
or any name which is confusingly similar to the names "Allied Medical",
"Allied Medicare" or "Allied Healthcare" PROVIDED THAT nothing in this
clause shall prevent any Group Member from using the names "Amcare" or
"Novacare".
5.3 Nothing in clause 5.1 shall prevent any Associated Company from:
5.3.1 acquiring any business or the shares or other securities of
any company if:
5.3.1.1 not more than 5 per cent of the business or that
company's business is Restricted Business; and
5.3.1.2 the principal reason for doing so is not the
ownership of an interest in that Restricted Business;
or
5.3.2 retaining its interest in any business or the shares or other
securities of any company if not more than 5 per cent of the
business or that company's business is Restricted Business.
9
5.4 The Vendor acknowledges that it has information in respect of the
business and financing of the Group and its dealings, transactions,
affairs, plans and proposals, all of which information is, or may be,
secret or confidential and important to the Group. In this clause 5
such information is called "Confidential Information" and includes,
without limitation, confidential or secret information relating to the
Group's trade secrets, know how, ideas, business methods, finances,
prices, business plans, marketing plans, development plans, manpower
plans, sales targets, sales statistics, customer lists, customer
relationships, computer systems and computer software. The Vendor
further acknowledges that the disclosure of Confidential Information
(whether directly or indirectly) to actual or potential competitors of
the Group would place it at a competitive disadvantage and would do
damage (whether financial or otherwise) to its business. The Vendor
accordingly agrees to enter into the restrictions contained in clause
5.5.
5.5 The Vendor undertakes that for the period of five years after
Completion:
5.5.1 the Vendor will not disclose, and it will procure that each
Associated Company will not disclose, to any person except to
those authorised by the Company to know;
5.5.2 the Vendor will not use, and it will procure that each
Associated Company will not use, for the Vendor's own purposes
or for any purposes other than those approved by the Company;
and
5.5.3 the Vendor will, and it will procure that each Associated
Company will, exercise reasonable care and diligence so as the
prevent any unauthorised disclosure of,
any Confidential Information, provided that these restrictions and
obligations on the Vendor will cease to apply to information which
(otherwise than through the default of the Vendor) becomes available to
the public generally or is required to be disclosed by law, any stock
exchange, the Inland Revenue or any other taxation authority, or any
other regulatory authority or, subject to the execution of a
confidentiality undertaking in a form approved by the Purchaser (such
approval not to be unreasonably withheld), such of the Confidential
Information that comprises and is set out in this Agreement, the
documents referred to herein or delivered pursuant hereto as may be
required to be disclosed by the Vendor's funders, prospective funders,
shareholders, prospective shareholders and further provided that the
Vendor shall not be liable under this Clause 5.5 where it has complied
with its obligations in this paragraph and in clause 5.5.3.
5.6 The parties agree that each of the undertakings set out in this clause
5 is separate and severable and enforceable accordingly and if any one
or more of such undertakings,
10
part of an undertaking or the extent of an undertaking in duration or
geographical area is held to be against the public interest or unlawful
or in any way an unreasonable restraint of trade, the remaining
undertakings or remaining part of the undertakings or to the extent
permissible as being in the public interest, lawful or a reasonable
restraint of trade will continue in full force and effect and will bind
the Vendor.
6. COMPLETION
The sale and purchase of the Shares will be completed at the offices of
the Vendor's Solicitors immediately after the signing and exchange of
this Agreement when:
6.1 the Vendor will produce and deliver to the Purchaser:
6.1.1 duly executed transfers of the Shares in favour of the
Purchaser together with all relevant share certificates and
together also with such waivers and consents as the Purchaser
may require to enable the Purchaser to be registered as the
holders of the Shares;
6.1.2 written resignations in the agreed terms from all directors of
each Group Member except Xxxxxx Xxxxxx and from the secretary
of each Group Member (except where Xxxxxx Xxxxxx is
secretary);
6.1.3 the written resignation of Ernst & Young as auditors of each
Group Member accompanied by the statement referred to in
section 392 of the Act;
6.1.4 the certificate of incorporation, any certificate(s) of
incorporation on change of name, and the statutory books and
registers (all entered up to date) of each Group Member;
6.1.5 all deeds and documents relating to the title of any Group
Member to the Property;
6.1.6 all cheque books in current use of each Group Member;
6.1.7 bank statements in respect of each account of each Group
Member as at the close of business on the last Business Day
prior to Completion, together in each case with a
reconciliation statement prepared by the Vendor to show the
position at Completion (listing unpresented cheques drawn or
received by the relevant Group Member and standing orders
payable since the date of such bank statements);
6.1.8 evidence, satisfactory to the Purchaser, that there are no
mortgages or charges on the whole or on part of the assets of
either or both Group Member(s);
11
6.1.9 evidence, satisfactory to the Purchaser, that the Guarantees
and the Securities have been released;
6.1.10 a certified copy of the duly executed Settlement Agreement and
all its counterparts;
6.1.11 written confirmation from Lincolnshire Health Authority, in
the agreed form, that the approval given by it to the
Company's application to move its dispensing services in
Claypole, Lincolnshire to a another site in Claypole,
Lincolnshire has been renewed; and
6.1.12 evidence, satisfactory to the Purchaser, that the registration
of the Domain Name has been transferred to the Company;
6.1.13 the Tax Covenant duly executed by the Vendor.
6.2 the Vendor will repay, and will procure that each Associated Company
will repay, the net amount owed by it to any Group Member, whether due
for payment or not;
6.3 the Vendor will procure that duly convened meetings are held at which:
6.3.1 the transfers referred to in clause 6.1 are approved (subject
to stamping) for registration in the books of the relevant
Group Members;
6.3.2 Xxxxxx Xxx of Xxxxxxx House, Woodside Hill, Xxxxxxxx Xx Xxxxx,
Xxxxxxxx Xxxxx, Xxxxx XX0 0XX is appointed as a director of
each Group Member (subject to any maximum number of directors
imposed by the relevant articles of association), and Xxxxxx
Xxxxxx is appointed as the secretary of each Group Member; and
6.3.3 all existing instructions to the bankers of each Group Member
are revoked and new instructions given to such bankers as the
Purchaser may nominate, in such form as the Purchaser directs;
6.4 the Purchaser will pay the Consideration.
6.5 In respect of the obligations under clause 6.2, the Consideration shall
be reduced by the sum of (pound)623,352 which shall be applied by the
Purchaser in satisfaction of the amounts due under clause 6.2. In the
event that following determination of the actual amount due under
clause 6.2:
6.5.1 the amount exceeds (pound)623,352 the excess shall be paid by
the Vendor to the Purchaser in full satisfaction of such
amount;
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6.5.2 the amount is less than (pound)623,352 the shortfall shall be
paid by the Purchaser to the Vendor as additional
consideration;
in each case within 2 days following determination.
Determination of such amounts shall be made by the parties as soon as
reasonably practicable following Completion, failing which by an
independent accountant appointed by agreement between the parties for
such purpose or failing such agreement within 30 days of Completion, by
an independent accountant appointed by the President for the time being
of the Institute of Chartered Accountants in England and Wales.
7. ANNOUNCEMENTS
Each of the Vendor and the Purchaser shall inform the other of the
terms of any public announcement it proposes to make concerning the
transactions contemplated by this Agreement before making the relevant
announcement and shall, if reasonably practicable, incorporate
reasonable amendments made to the relevant announcement by the other
party.
8. COSTS
Each party to this Agreement will bear its own costs and expenses
relating to the preparation and completion of this Agreement, except
where otherwise expressly stated.
9. NOTICES
9.1 Any demand, notice or other communication given or made under or in
connection with this Agreement will be in writing by prepaid first
class post, by hand or by facsimile.
9.2 Any such demand, notice or other communication will, if otherwise given
or made in accordance with this clause 9, be deemed to have been duly
given or made as follows:
9.2.1 if sent by pre-paid first class post, on the second Business
Day after the date of posting;
9.2.2 if delivered by hand, upon delivery at the address provided
for in this clause 9; or
9.2.3 if sent by facsimile, on the day of transmission provided that
a confirmatory copy is, on the same Business Day that the
facsimile is transmitted, sent by pre- paid first class post
in the manner provided for in this clause 9,
13
provided however that, if it is delivered by hand or sent by facsimile
on a day which is not a Business Day or after 4 p.m. on a Business Day,
it will instead be deemed to have been given or made on the next
Business Day.
9.3 Any such demand, notice or other communication will, in the case of
service by post or delivery by hand, be addressed (subject as provided
in this clause 9) to the recipient at the recipient's address stated in
this Agreement or at such other address as may from time to time be
notified in writing by the recipient to the sender as being the
recipient's address for service, provided that in the case of a company
it may instead (at the option of the sender) be addressed to its
registered office for the time being.
9.4 Any such demand, notice or other communication will, in the case of
service by facsimile, be sent to the recipient using a facsimile number
then used by the recipient at an address which (in accordance with such
provisions) could have been used for service by post.
9.5 The provisions of this clause 9 will not apply, in the case of service
of court documents, to the extent that such provisions are inconsistent
with Part 6 of the Civil Procedure Rules.
10. VENDOR'S UNDERTAKINGS
10.1 The Vendor shall, without being obliged to incur any cost or expense,
execute or procure the execution of such documents in a form reasonably
satisfactory to the Purchaser or provide the Purchaser with reasonable
assistance at the Purchaser's cost (but without expending any material
time or effort) as may be necessary to transfer the benefit of the
Listings set out in Schedule 7 to the Purchaser.
10.2 The Vendor shall hold the benefit of any Claims on trust for the
benefit of the relevant Group Member and subject to both the consent of
the Vendor's insurer and the Purchaser indemnifying the Vendor against
all costs, liabilities, damages and expenses the Vendor shall permit
the relevant Group Member to pursue any further claims which can be
made under an Insurance Policy if such claim relates to circumstances
arising prior to Completion.
10.3 The Vendor shall indemnify the Purchaser, on an after tax basis,
against any liabilities, costs, claims or expenses arising in
connection with the agreement dated 10 June 1992 made between (1) Xxxxx
Xxxxx and (2) Amcare Limited relating to "the Invention" (defined
therein). The Vendor's liability under this clause 10.3 shall not be
limited by the provisions of Schedule 5.
10.4 The Purchaser shall ensure that following Completion each Group Member
permits Xxxxxx Xxxxxx to give such reasonable assistance to the Vendor
or any other member
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or members of the Retained Group, or their accountants, auditors or
other professional advisers, as may be reasonably necessary to enable
the Vendor to prepare consolidated management accounts for the Group
and the Retained Group PROVIDED that the Vendor shall indemnify the
Group Members on an after tax basis against any liabilities, costs,
claims or expenses incurred by or made against them or either of them
arising therefrom. The Vendor's liability under this clause 10.4 shall
not be limited by the provisions of Schedule 5.
11. GENERAL
11.1 This Agreement will be binding on and will enure for the benefit of
each party's successors and assigns (as the case may be).
11.2 Except insofar as the same have been fully performed at Completion,
each of the agreements, covenants, obligations, warranties, indemnities
and undertakings contained in this Agreement will continue in full
force and effect notwithstanding Completion.
11.3 The parties agree that they will do all such acts and things and
execute all such documents as may be required on or subsequent to
Completion to vest in the Purchaser legal and beneficial ownership of
the Shares in accordance with this Agreement and otherwise to give
effect to its terms.
11.4 Failure or delay by any party in exercising any right or remedy under
this Agreement will not in any circumstances operate as a waiver of it,
nor will any single or partial exercise of any right or remedy in any
circumstances preclude any other or further exercise of it or the
exercise of any other right or remedy.
11.5 Any waiver of any breach of, or any default under, any of the terms of
this Agreement will not be deemed a waiver of any subsequent breach or
default and will in no way affect the other terms of this Agreement.
11.6 The rights and remedies expressly provided for by this Agreement will
not exclude any rights or remedies provided by law.
11.7 This Agreement may be executed in any number of counterparts, and by
the parties on separate counterparts, each of which so executed and
delivered will be an original, but all the counterparts will together
constitute one and the same agreement.
11.8 The formation, existence, construction, performance, validity and all
aspects of this Agreement or of any term of this Agreement shall be
governed by English law. The English Courts shall have jurisdiction to
settle any disputes which may arise out of or in connection with this
Agreement.
15
11.9 Apart from clause 5.1 and 11.2, the parties to this Agreement do not
intend that any of its terms will be enforceable by virtue of the
Contracts (Rights of Third Parties) Xxx 0000 by any person not a party
to it.
SIGNED by or on behalf of the parties on the date which first appears in this
Agreement
16
SCHEDULE 1
DETAILS OF THE COMPANY
Name of Company : Amcare Limited
Registered number : 3191025
Registered office : 00X Xxxxxxx Xxx, Xxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx, Tune & Wear SR4
6SN
Date of incorporation : 26 April 1996
Place of incorporation : Cardiff
Status of Company : private limited company
Authorised share capital : (pound)6,000,000 into 6,000,000
ordinary shares of (pound)1 each
Issued share capital : 5,365,485 ordinary shares of
(pound)1 each
Registered Shareholder(s) : Name Number and Percentage
and class of of issued
Address shares held share capital
The 5,365,485 100%
Vendor ordinary
shares of
(pound)1 each
Directors' full names : Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxx Xxxxx Xxxxxxxx
Secretary's full name : Xxxxxx Xxxxxxx Xxxxxx
Accounting reference date : 30 September
Auditors : Ernst & Young
Bankers : Barclays Bank PLC and National
Westminster Bank PLC
Description of business : The distribution of medical
products and services including
dispensing and supply of ostomy and
urology products
17
DETAILS OF THE SUBSIDIARY
Name of the Subsidiary : Novacare UK Limited
Registered number : 3196506
Registered office : Xxxx 00, Xxxxxx Xxxxx, Xxxxxxxxxx
00, Xxxxxxx, Xxxxx XX0 0XX
Date of incorporation : 9 May 1996
Place of incorporation : Cardiff
Status : Private limited company
Authorised share capital : (pound)1,000,000 divided into
1,000,000 ordinary shares
of(pound)1 each
Issued share capital : (pound)2 divided into 2 ordinary
shares of(pound)1 each
Registered Shareholder(s) : Name Number and Percentage
and class of of issued
Address shares held share capital
Amcare 2 ordinary 100%
Limited shares of
(pound)1 each
Directors' full names : Xxxxxxx Xxxxx Xxxxxxxx
Xxxxxx Xxxxxxx Xxxxxx
Secretary's full name : Xxxxxx Xxxxxxx Xxxxxx
Accounting reference date : 30 September
Auditors : Ernst & Young
Bankers : Barclays Bank PLC and National
Westminster Bank PLC
Description of business : The distribution of medical
products and services including
dispensing and supply of ostomy and
urology products
18
SCHEDULE 2
THE PROPERTY
--------------------------- ------------------ ------------------------------- ----------------------- -----------------------
DESCRIPTION TENURE AND TITLE HOLDER TITLE NO. AND DETAILS OF ANY
SUMMARY OF TERMS CLASS OF TITLE (IF TENANCY AFFECTING THE
REGISTERED) TITLE
--------------------------- ------------------ ------------------------------- ----------------------- -----------------------
00 Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxx Xxxxxxx XX00000 Title Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxx XX00 0XX
--------------------------- ------------------ ------------------------------- ----------------------- -----------------------
Unit 22 Plessey Business Implied lease Amcare Limited Not applicable None
Park, Technology Drive, commencing 0000
Xxxxxxx, Xxxxxxxxxx at a rent of
(pound)970 plus
VAT per month
--------------------------- ------------------ ------------------------------- ----------------------- -----------------------
Unit 2 Guillimont Health Leasehold Amcare Limited Not applicable None
Centre, Stoke Road, Term: 5 years
Bishops Cleeve, from 2 February
Cheltenham, 1998
Gloucestershire Rent: (pound)
5,750 per annum
--------------------------- ------------------ ------------------------------- ----------------------- -----------------------
First Floor Offices, 26 Leasehold Amcare Limited Not applicable None
Blackfriars Street, Term: 3 years
Xxxxxxxxxx X0 0XX from 2 February
1998
Rent:
(pound)4,160 per
annum
--------------------------- ------------------ ------------------------------- ----------------------- -----------------------
Factory and Land being Leasehold Amcare Limited Not applicable None
Site BT16/39B on the Term: 12 years
Pallion Industrial Estate from 23 January
in the County of Tyne and 1991
Wear Rent:
(pound)49,250
per annum ( rent
review pending)
--------------------------- ------------------ ------------------------------- ----------------------- -----------------------
Unit No 69 Riverside Leasehold Amcare Limited K686980 Title Absolute The ground floor
Phase III, The Medway Term: 24 years premises are occupied
City Estate, Xxxxxxx, Xxxx from 29 by Allied Medicare
(also known as The Amcare September 1989 Limited a fellow
Centre Strood) Rent: subsidiary company
(pound)11,957 under the terms of an
per annum informal sub-lease at
a rent of(pound)7,520 per
annum which is
invoiced on a
quarterly basis
--------------------------- ------------------ ------------------------------- ----------------------- -----------------------
19
--------------------------- ------------------ ------------------------------- ----------------------- -----------------------
Offices on the First Lease (undated) Amcare Limited Application submitted Xxxx
Xxxxx xx 0/00 Xxxxxxxx Xxxx: 25 years to the Land Registry
Road and 27/28 Derwent from 00 Xxxxx 0.00.0000
Xxxxxx, Xxxxxxxxxx, Xxxx 0000
and Wear Rent:
(pound)9,500 per
annum
--------------------------- ------------------ ------------------------------- ----------------------- -----------------------
Xxxx 00 Xxxxxx Xxxxx, Leasehold Amcare Limited Not applicable The property is
Telford, Shropshire Term: 3 years entirely occupied by
from 2 February Novacare (UK) Limited
1999 a wholly owned
Rent: subsidiary of Amcare
(pound)5,300 per Limited under the
annum terms of an informal
sub-lease. Novacare
pay the rent of
(pound)5,300 p.a.
--------------------------- ------------------ ------------------------------- ----------------------- -----------------------
Land and Buildings at Leasehold Amcare Limited Not applicable None
Balderton Hospital, Term: ongoing
Newark, Nottinghamshire quarter to
quarter
Rent:
(pound)24,000
per annum
--------------------------- ------------------ ------------------------------- ----------------------- -----------------------
The Surgery, Collington Leasehold Amcare Limited Not applicable None
Way, West Bridgford, Term: Five years
Nottingham from 21 February
2000
Rent:
(pound)27,000
per annum
--------------------------- ------------------ ------------------------------- ----------------------- -----------------------
00 Xxxx Xxxxxx, Xxxxxxxx Xxxxxxxx Amcare Limited Property acquired on None
2.11.2000. currently
unregistered but
subject to First
Registration
--------------------------- ------------------ ------------------------------- ----------------------- -----------------------
Office Accommodation at Leasehold Novacare (UK) Limited Not applicable None
former Beehive Bakery, Term: 6 months
Mount Road, Llanfair from 24 August
Caereinion, Powys 1998
Rent:
(pound)480 p.a.
--------------------------- ------------------ ------------------------------- ----------------------- -----------------------
20
SCHEDULE 3
1. INTERPRETATION
In this SCHEDULE 3 the following expressions have the following
meanings:
"ACT" Advance corporation tax
"ACCOUNTING STANDARDS" The statements of standard accounting
practice referred to in Section 256 of the
Companies Xxx 0000 issued by the Accounting
Standards Board or such other bodies as may
be prescribed by the Secretary of State from
time to time, including the statements of
standard accounting practice formerly issued
by the Accounting Standards Committee and
since adopted by the Accounting Standards
Board, the Abstracts issued by the Urgent
Issues Task Force and any financial
reporting standards issued by the Accounting
Standards Board or such other body referred
to above.
"THE ACCOUNTS" The audited accounts of the Group for the
financial year which ended on the Accounts
Date, comprising in each case a balance
sheet, a profit and loss account, notes and
directors' and auditors' reports.
"THE BALANCE SHEET" The audited balance sheet of the Company as
at the Accounts Date
"CAA" Capital Allowances Act 1990
"CGTA 1979" The Capital Gains Tax Xxx 0000.
"COMPANY" Notwithstanding the definition contained in
clause 1, each company individually details
of which are set out in Schedule 1 as if the
Warranties were set out in full in respect
of each such company provided that where
used other than in this Schedule and
Schedule 4 Company shall have the meaning
given in clause 1.
21
"FA" Finance Act
"FSAP"
"GUIDELINES" means the National Health Service Guidelines
HSG (92)13 and FPN 560 (as attached to this
agreement).
"ICTA" Income and Corporation Taxes Xxx 0000
"INFORMATION TECHNOLOGY" means computer hardware, software, firmware
and networks.
"INSTALMENT PAYMENTS means the Corporation Tax (Instalment
REGULATIONS" Payment) Regulations 1998 (SI 1998 No.3175)
"INTELLECTUAL PROPERTY means patents, trade marks, service marks,
RIGHTS" rights in designs, industrial processes,
trade or business names, copyrights,
database rights (whether or not any of these
is registered and including applications for
registration of any such thing), and all
rights and forms of protection of a similar
nature.
"REGULATIONS" has the meaning given in paragraph 10.6 of
this schedule.
"SPONSORSHIP ARRANGEMENT" means an arrangement listed in Schedule 6.
"SSAP" means any and all relevant standard
statements of accounting practice current at
the date of this Agreement
"TCGA" Taxation of Chargeable Gains Xxx 0000
22
"TAXATION" (a) any tax, duty, impost, withholding
or levy, past or present, of the
United Kingdom or elsewhere,
whether governmental, state,
provincial, local governmental or
municipal, including but not
limited to income tax (including
income tax required to be deducted
or withheld from or accounted for
in respect of any payment under
section 203 ICTA or otherwise),
corporation tax, including any
amount payable under section 419
ICTA, ACT, capital gains tax,
inheritance tax, VAT, any liability
arising under section 601 ICTA,
customs and other import or export
duties, stamp duty, stamp duty
reserve tax, national insurance and
social security contributions (but
excluding rates and water rates);
and
(b) any fine, penalty, surcharge, or
interest relating to any tax, duty,
impost, withholding or levy
mentioned in (a) of this definition
or to any account, record, form,
return or computation required to
be kept, preserved, maintained or
submitted to any person for the
purposes of any such tax, duty,
impost, withholding or levy
"TAXATION AUTHORITY" any authority, whether of the United Kingdom
or elsewhere, competent to impose, assess or
collect Taxation, including but not limited
to the Board of Inland Revenue and the
Commissioners of Customs and Excise
"TAXATION STATUTE" any statute (and all regulations and other
documents having the force of law under such
statute) published, enacted, issued or
coming into force on or before the date of
this Agreement relating to Taxation
23
"VAT" value added tax imposed by the VATA and any
subordinate legislation made pursuant
thereto and in any other jurisdiction the
equivalent tax
"VATA" Value Added Tax Xxx 0000
2. COMPLIANCE WITH LEGAL REQUIREMENTS AND HOLDING COMPANY
* The Company has complied in all material respects with all legal and
procedural requirements applicable to it concerning:
2.1 its memorandum and articles of association (including all resolutions
passed or purported to have been passed);
2.2 the filing of all documents required by the Companies Xxx 0000 to be
filed at Companies House;
2.3 issues or shares, debentures or other securities;
2.4 payments of interest and dividends and the making of other
distributions; and
2.5 directors (including any shadow directors) and other officers.
3. ACCOUNTS AND FINANCIAL MATTERS
3.1 The Accounts:
3.1.1 * comply with the requirements of the Companies Acts;
3.1.2 * have been prepared on a recognised and consistent basis and
have been prepared on the same basis and in accordance with
the same accounting policies as the corresponding accounts of
the Company for the preceding financial year;
3.1.3 * give a true and fair view of the assets and liabilities of
the Company as at the Accounts Date and its profit for the
financial year ended on that date;
3.1.4 * except as the Accounts expressly disclose, are not affected
by any unusual or non-recurring items;
3.1.5 * have been prepared and audited in accordance with the
historical cost convention, with all applicable law and
Accounting Standards and (to the extent that no Accounting
Standard is applicable) with generally accepted accounting
principles and practices of the United Kingdom then in force;
and
24
3.2 The trading stock of the Company is good marketable stock and is
capable of being sold in the ordinary course of business in accordance
with the current price list of the Company without rebate or allowance
to a purchaser and there is no material old obsolescent, slow-moving,
unusable, unsaleable, deteriorated or excessive stock.
3.3 * The accounting books and records of the Company have been properly
written up and accurately present and reflect in accordance with
generally accepted accounting principles and standards all material
transactions to which the Company has been a party.
3.4 Save as referred to in the Disclosure Letter, no customer of the
Company is responsible for an excess of 10% of the Company's trade,
turnover or profitability in any one financial year and no supplier
supplies in excess of 10% of the Company's supplies in any one
financial year (as quantified by payments of suppliers in that year).
3.5 * Details of all overdrafts, loans or other financial facilities
outstanding or available to the Company are contained in the Disclosure
Letter.
4. ISSUES OF SHARES AND MAKING OF DISTRIBUTIONS
4.1 * The Shares which are fully paid constitute the entire issued share
capital of the Company and the details set out in Schedule 1 are true
and accurate. There is no option, right to acquire, mortgage, charge,
pledge, lien or other form of security or encumbrance on, over or
affecting the shares of the Company, there is no agreement or
commitment to give or create any of the foregoing and no person has
made any claim to be entitled to any of the foregoing. The Vendor is
entitled to sell and transfer or can procure the sale and transfer of
the full legal and beneficial ownership in the Shares to the Purchaser
on the terms set out in this Agreement.
4.2 * No share or loan capital of the Company is now under option or is
agreed conditionally or unconditionally to be created or issued or put
under option.
4.3 * The Company has not purchased or redeemed or repaid any share
capital.
5. PLANT AND EQUIPMENT
5.1 * Save in relation to standard software packages and development tools
licensed to the Company, the Company owns, free from any mortgage or
charge or other encumbrance or security, all its undertaking and assets
stated as being owned by it in the Accounts except for any of its
undertaking and assets which are the subject of:
5.1.1 any hire or lease agreement in the ordinary course of
business;
25
5.1.2 title retention provisions in respect of goods and materials
acquired by the Company in the ordinary course of business; or
5.1.3 liens arising in the ordinary course of business by operation
of law and all such assets are in its possession or control.
5.2 All plant, machinery, vehicles and equipment owned or used by the
Company is in reasonable condition, normal wear and tear excepted, and
in reasonable working order for the purpose for which they are required
and are not currently in need of immediate renewal or replacement other
than in the ordinary course.
5.3 The amounts of goods and packaging and promotional material held by the
Company are appropriate and normal for the present level of trading of
the Company
6. INSURANCE
6.1 * The Company has effected all insurances required by law to be
effected by it.
6.2 * The Vendor has supplied to the Purchaser a true and accurate schedule
containing full particulars of all current insurance policies effected
by or for the Company.
6.3 * All premiums due and payable on the said policies have been paid and
the Company has not received any written notice that the policies are
not in full force and effect or void or voidable.
6.4 * No claim has been made (or, as far as the Vendor is aware, could be
made) and is outstanding either by the insurer or the insured under any
of the said policies
7. MATERIAL TRANSACTIONS
7.1 Since the Accounts Date:
7.1.1 * the Company has not created any mortgage or charge or other
encumbrance or security on the whole or any part of its assets
now outstanding;
7.1.2 * the assets of the Company have not been depleted other than
in the ordinary course of business as the business has been
carried out in the twelve months immediately prior to the
Accounts Date;
7.1.3 * there has been no material adverse change in the financial
or trading position of the Company (as compared to immediately
before the Accounts Date) and its businesses have materially
been carried on in the ordinary
26
course and materially in the same manner (including nature and
scale) as in the twelve months immediately prior to the
Accounts Date;
7.1.4 * no member's resolution of the Company has been passed;
7.1.5 * in respect of the Company no share has been issued or
allotted or repaid, or agreed to be issued or allotted or
repaid;
7.1.6 * no dividend or other payment which is, or could be treated
as, a distribution for the purposes of Part VI ICTA or section
418 ICTA has been declared, paid or made by the Company;
7.2 * There is no Sponsorship Arrangement which is unlikely to be renewed
at the natural expiration of that Sponsorship Arrangement on terms and
conditions reasonably similar to those presently existing in the
relevant Sponsorship Arrangement.
8. EMPLOYEES
8.1 * There is attached to the Disclosure Letter a schedule giving true and
accurate details as at the date of this Agreement of names, dates of
birth, dates of commencement of employment, department, annual salary,
proposed salary increases for the year 2001 and employer pension
contribution in relation to each employee of the Company ("EMPLOYEE").
The Disclosure Letter also gives true and accurate particulars of the
circumstances of the absence from work of any Employee for any reason
other than normal paid holiday or short-term sickness absence in the
twelve months prior to the date of Completion as such circumstances
have been notified to the Vendor in writing by the relevant Employee.
8.2 * A copy of the standard terms of employment for all grades of employee
of the Company and of all contracts of employment between the Company
and each of its directors, senior employees or outside consultants or
which cannot be terminated without compensation (other than common law
or statutory compensation) on less than 3 months' notice, and any other
documents currently in force relating to share option, share incentives
or profit sharing arrangements, commission, bonus arrangements and
employee benefits, are attached to the Disclosure Letter. Save as is
evident from the beforementioned standard terms and contracts and
documents or from the Schedule referred to in paragraph 8.1 above or
from the other disclosures made in the Disclosure Letter, the Employees
do not enjoy any employee benefits.
8.3
8.3.1 No liability is or has been alleged by any person to have been
incurred by the Company (which liability or allegation remains
outstanding at the date
27
hereof) for breach of any contract of service, for redundancy
payments or for compensation for wrongful dismissal or unfair
dismissal or for failure to comply with any order for the
reinstatement or re-engagement of any employee and no
gratuitous payment has been made or promised by the Company in
connection with the termination or proposed termination of
employment of any present or former director or employee; and
8.3.2 * Since the Accounts Date no change has been made in the basis
of the emoluments or the other material terms of engagement of
Employees, and no such change, and no negotiation or request
for such a change, is due or, so far as the Vendor is aware,
expected within six months from the date of this Agreement.
There is no outstanding offer of employment with the Company
to any person.
8.4 The Company has in relation to each of its employees (and so far as
relevant to its former employees) complied in all material respects
with all obligations imposed on it by all statutes and regulations
relevant to the relations between the Company and its employees or any
recognised trade union.
8.5 * There are not in existence any service agreements with directors or
employees of the Company:
8.5.1 which are not determinable without compensation (other than
under the Employment Rights Act 1996) by notice not exceeding
3 months; or
8.5.2 in relation to which any relevant requirements of section 319
Companies Act have not been complied with.
8.6 * None of the Employees has given notice to either Group Member or has
informed either Group Member that they will probably give notice
terminating his or her contract of employment, nor are any of the
Employees under notice of dismissal. So far as the Vendor is aware,
none of the Employees has made or threatened any litigation or
arbitration, administrative or criminal proceeding in connection with
or arising from his or her employment and there are no circumstances in
existence such as might give rise to any such litigation or
arbitration, administrative or criminal proceeding in connection with
or arising from the employment of any of the Employees. There is no
obligation or amount due to or in respect of any Employees in
connection with or arising from their employment which is in arrears or
unsatisfied other than their normal salary for part of the month
current at the date of this Agreement.
28
8.7 * No trade union, works counsel, staff association or other body
representing employees is recognised in any way for bargaining,
information or consultation purposes in relation to the Employees.
9. PENSIONS
9.1 * With the exception of the Group Personal Pension Scheme and the Life
Assurance Scheme there are no:-
9.1.1 agreements or arrangements for the provision of any relevant
benefits (as defined in Section 612 (1) of the Income &
Corporation Taxes Act 1988) or similar benefit (including any
pension, annuity, lump sum, gratuity or other like benefit) to
be given on retirement, or in anticipation on or after
retirement in connection with past service; or
9.1.2 informal or ex gratia pension arrangements, customs or
practices (whether or not legally enforceable)
for any employee or officer of former employee or officer of the
Company or for any dependants of any such person.
9.2 * The Group Personal Pension Scheme is an exempt approved scheme within
the meaning of Chapter IV of Part XIV of ICTA and the Vendor is not
aware of any reason why such exempt approval may, as at the date of
this Agreement, be withdrawn.
9.3 * All material information concerning the Group Personal Pension Scheme
and the Life Assurance is attached to the Disclosure Letter including,
in the case of the Life Assurance Scheme, copies of its governing trust
documentation and, in the case of the Group Personal Pension Scheme, a
copy of the members' information booklet and details of those
individuals contributing to it.
9.4 * The members' benefits payable under each of the Group Personal
Pension Scheme and the Life Assurance Scheme, whether immediate,
prospective or contingent are solely those benefits which can be
provided by the funds available for or allocated to, each member.
9.5 * Benefits payable under the Life Assurance Scheme on the death of any
member are fully insured under a policy effected with an insurance
company and the Vendor is not aware of any reason why the relevant
policies cannot be continued following Completion.
29
9.6 Admission to the Group Personal Pension Scheme has been operated at all
times, in accordance with the provisions of the EC Treaty relating to
equal treatment and all acts of parliaments, directives and other
relevant legislation in this regard.
9.7 * No contracting-out certificate (within the meaning of the Pension
Schemes Act 1993) has been issued by reference to the Group Personal
Pension Scheme.
9.8 * There are not in respect of the Group Personal Pension Scheme any
actions, suits, or claims (including complaints to the Pensions
Ombudsman) existing, pending or, as far as the Vendor is aware,
threatened.
9.9 * All contributions payable by the Company or by any of its employees
in respect of the Group Personal Pension Scheme, and all premiums
payable by the Company in respect of the Life Assurance Scheme, have at
all times been paid in accordance with the provisions of those schemes
and the requirements of the Pensions Xxx 0000, and those which fall due
for payment before the date of Completion will have been paid by that
date.
9.10 *The full accrued value of the account within the Group Personal
Pension Scheme of each employee of the Company who is a member of that
Scheme, will at that employee's option be made available for transfer
to another pension arrangement, without any form of penalty or
deduction.
10. CONTRACTS, COMMITMENTS AND FINANCIAL AND OTHER ARRANGEMENTS
10.1 * There are not now outstanding in respect of the Company:
10.1.1 any material contracts for hire or rent, hire purchase or
purchase by way of credit or instalment payment or for the
maintenance of the Company's assets;
10.1.2 any material agreements in respect of which prohibitions exist
(whether as a matter of law or by the terms of the agreements)
against disclosure to third parties either of their existence
or of their terms, and so that if any such agreements exist it
is hereby warranted that none of them would be material for
disclosure to the Purchaser;
10.1.3 any material agreement or arrangement (whether by way of
guarantee, indemnity, warranty, representation or otherwise)
under which the Company is under a prospective or contingent
liability in respect of:
10.1.3.1 any disposal by the Company of its assets or business
or any part thereof, save in the ordinary course of
business; or
30
10.1.3.2 the obligations of any other person;
10.1.4 any material agreement or arrangement which is capable of
being terminated as a direct result of the change of the
control of the Company effected by or pursuant to this
Agreement;
10.1.5 any contract which is not on an arm's-length basis.
10.2
10.2.1 * Other than in respect of circumstances or matters set out or
referred to in the Settlement Agreement the Company is not in
material default under, and has not committed any breach of,
any of the terms of any agreement, instrument or arrangement
with a value greater than (pound)40,000 ("MATERIAL
AGREEMENT");
10.2.2 No other party to a Material Agreement is in material default
under, or has committed any breach of, any of the terms of any
Material Agreement; no threat or claim of any default or
breach by the Company of the terms of any Material Agreement
has been made and is outstanding against the Company; no
Material Agreement is invalid; and there are no grounds for
determination, recission, avoidance or repudiation of any
Material Agreement nor is there any allegation of any such a
thing.
10.3
10.3.1 The Company is not nor has been a party to or is or has been
concerned in any agreement or arrangement in respect of which
any undertaking has been given by or any order made against
the Company pursuant to RTPA 1976 or in respect of which an
undertaking has been given by or an order made against the
Company pursuant to the Resale Prices Xxx 0000.
10.3.2 The Company has not given an undertaking to, or is subject to
any order of or investigation by, or has received any request
for information from, any court or Governmental authority
(including, without limitation, any national competition
authority and the European Commission) under any anti-trust or
similar legislation in any jurisdiction in which the Company
has assets or carries on or intends to carry on business or
where its activities may have an effect.
10.3.3 The Company is not nor has been a party to or is or has been
concerned in any agreement or arrangement in respect of which
an application for
31
negative clearance and/or exemption has been made to the
European Commission.
10.3.4 The Company is not nor has been a party to or is or has been
concerned in any material agreement or arrangement in respect
of which an application for negative clearance and/or
exemption should have been made to the European Commission.
10.3.5 The Company is not nor has been a party to or is or has been
concerned in any agreement or arrangement in respect of which
any application under Sections 13, 14, 21 or 22 of the
Competition Act 1998 has been made to the Director-General of
Fair Trading or other sectoral regulator.
10.3.6 The Company is not nor has been a party to or is or has been
concerned in any material agreement or arrangement in respect
of which any application under Sections 13, 14, 21 and 22 of
the Competition Act 1998 should have been made to the
Director-General of Fair Trading or other sectoral regulator.
10.4 * Material details of each agreement, instrument or arrangement
involving the Company with a value greater than (pound)40,000 or for a
greater period than twelve months' duration are set out in the
Disclosure Letter together with details of all pre-payments in respect
of the contracts and a list of:
10.4.1 material suppliers to Group Members;
10.4.2 material customers of the Group Members; and
10.4.3 sponsored nurses or similar
provided that "material" for the purposes of this clause shall mean
comprising 10% or more of supplies to, or customers of, the Group
Members as a whole.
10.5 * The Company is not a party to and has no liability (present or
future) under any guarantee or indemnity or letter of credit or any
hire purchase, credit sale or conditional sale agreement.
10.6 * Schedule 7 contains a complete list of:
10.6.1 all entries in favour of either Group Member in any UK Health
Authority pharmaceutical list ("LISTING") created and
maintained under the provisions of the National Health Service
(Pharmaceutical Services) Regulations 1992 ("REGULATIONS");
32
10.6.2 the identity of the relevant party in whose favour the Listing
is made;
10.6.3 the identity of the premises in respect to which each Listing
is made;
10.6.4 the goods and services authorised to be provided under each
Listing; and
10.6.5 the goods and services required to be provided under each
Listing.
10.7 * Other than in respect of circumstances or matters referred to or set
out in the Settlement Agreement all material licences, consents and
other permissions and approvals required for or in connection with the
carrying on of the business of each Group Member are in full force and
effect and the Vendor has not received notice of any revocation thereof
10.8 Other than the contracts referred to in clause 10.4 above, the Company
is not subject to any agreement, commitment or arrangement which;
10.8.1 relates to matters not within the ordinary course of business;
or
10.8.2 can be terminated in the event of any change in ownership of
the shares or would be materially affected by such a change
(whether by allowing the other contracting party to impose any
payment or other obligation or otherwise)
and which is material to the businesses carried on by the Group
Members.
10.9 *The Listings set out in Schedule 7, the Regulations (and without
limitation, the Terms of Service for Chemists (Schedule 2) to the
Regulations) and the Guidelines (together, the "Authorisation") permit
the relevant company in the Group to dispense and supply those stoma
appliances, incontinence appliances and services dispensed and supplied
by the relevant Company from the relevant premises over the previous 12
months.
10.10 *Each Listing is in full force and effect and valid prescriptions for
services and appliances have been received and dispensed pursuant to
each Authorisation over the six months immediately preceding Completion
at or from the relevant premises.
10.11 *Without limitation on paragraph 10.10:
10.11.1 Except for non-compliance or breach which has and will have no
material effect on the business or the prospects of the Group
as a whole; or
10.11.2 Except for non-compliance fairly disclosed in the Disclosure
Letter;
33
each Group Member has complied with all terms, conditions and
requirements of the Authorisation and none is in breach of any terms of
the Authorisation. Further save as fairly disclosed in the Disclosure
Letter, the relevant Group Member has not received notice of any
proceeding to revoke or terminate a Listing and the Vendor is not aware
of any proceeding which is threatened as pending to revoke or terminate
a Listing.
10.12 * From the relevant dates set out in Schedule 3 to the Settlement
Agreement the Group has complied in all material respects with the
systems and procedures set out in Schedule 1 to the Settlement
Agreement and the Group holds the information referred to in and as
required by clause 7.2 of the Settlement Agreement and the information
is readily available for provision to the relevant Health Authority as
set out in that clause.
10.13 * So far as the Vendor is aware the contents of the CMS Letter are true
and accurate in all material respects and not misleading in any
material respect and the Vendor is not aware of any matter or
circumstance which would render the contents untrue, inaccurate or
misleading.
10.14 *The Settlement Agreement is of full force and effect and is binding
upon and enforceable by the parties thereto in accordance with its
terms.
10.15 * Without limitation on paragraph 10.14, the Vendor is not aware (after
making reasonable investigations) of any basis or argument or
circumstance upon which the Health Authorities or the NHS or any third
party could challenge the enforceability of the Settlement Agreement.
10.16 * The details of the contracts with GPT Finance and Mercury
Communications ("Contracts") set out at number 19 of Amcare Limited
Data Room Bundle, File 2 of 3 are correct and not misleading. Further
item 19 contains a materially accurate summary of each obligation of
each Group Member under each Contract where failure to comply with that
obligation may result in a claim against, or loss, expense or liability
of, a Group Member for, or in respect of, more than (pound)5,000 or
where compliance is required for the continued provision of goods and
services to the relevant Group Member under the relevant contract.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 *Details of all registered Intellectual Property Rights (and
applications for any such right) owned or used by each Group Member are
set out in the Disclosure Letter, and all such Intellectual Property
Rights are in full force and effect and are vested solely in and
legally and beneficially owned by either of the Group Members and are
free from and clear of any restrictions or encumbrances and so far as
the Vendor is aware neither
34
Group Member infringes or has infringed Intellectual Property Rights
owned by any third party.
11.2 No third party is infringing or making unauthorised use, or has
infringed or made unauthorised use, of any Intellectual Property Rights
owned by either Group Member.
11.3 * Neither Group Member has granted any licences under any Intellectual
Property Rights owned by such Group Member.
11.4 *Neither Group Member has been granted any licence or right under or in
respect of any Intellectual Property Rights of the Vendor, or any
Associated Company, or any third party; and there is no written
agreement to which either Group Member or both of them is/are a party
which significantly restricts the fields in which either of them
carries on its business.
11.5 * Since the Accounts Date, neither Group Member has sold or otherwise
disposed of any Intellectual Property Rights.
11.6 * Neither Group Member has received any notice from any authority or
other person to cancel, forfeit or modify any Intellectual Property
Rights.
12. LITIGATION AND OTHER DISPUTES
12.1 * The Company is not engaged in any litigation, arbitration,
prosecution or other legal proceedings or in any proceedings or
hearings before any statutory, regulatory or governmental body,
department, board or agency.
12.2 No matters of the type described in paragraph 12.1 are pending or
threatened; and there are no circumstances which may give rise to any
such matter (including, without limitation, in respect of collective
wage bargaining with employees).
12.3 No claim has been made by a customer of the Company or a consumer of
the Company's products which would if successful impose a liability on
the Company of a material amount which is not covered by insurance.
12.4 The Company, any Employee or any consultant has not committed and is
not liable for any criminal, illegal, unlawful or unauthorised act
imposed by or pursuant to statutes, contract or otherwise in respect of
the business carried out by the Company and no claim that it has or is
remains outstanding.
12.5 No investigation or inquiry is being or has been conducted by any
government or other body in respect of the business carried on by the
Company and the Company has not received any notice of its failure to
comply with any law, statute, regulation, decree or similar or any
requirement or standard of any governmental body, governmental
35
agency or any other regulatory or supervisory body, which is applicable
to the business.
12.6 The Claims will not be prejudiced by the change in ownership of the
Shares contemplated in this agreement.
13. PROPERTY
13.1 * The particulars of the Property shown in Schedule 2 are the only
properties owned, used or occupied by any Group Member or in respect of
which any Group Member has any estate right, interest or liability
(including in the case of registered land the class of title and title
number) are true, complete and correct in all respects.
13.2 * The Property is solely legally and beneficially owned used or
occupied by the Group Member and the Group Member has good and
marketable title to it.
13.3 The replies to the enquiries before contract in respect of the Property
(copies of which are enclosed with the Disclosure Letter) are true and
accurate in all respects.
13.4 The Group Member has in its possession and control all the title deeds
and documents listed in the Disclosure Letter which documents are
original documents or properly examined abstracts.
14. MISCELLANEOUS
14.1 * The Vendor does not have any interest in any other company or
business which has a close trading relationship with or which competes
with any business now carried on by the Company nor does the Vendor
intend to acquire such interest.
14.2 * Other than those set out in the Disclosure Letter there is not
outstanding to or from the Company from or to the Vendor or any member
of the Retained Group any debts or monies or any contractual rights and
obligations.
14.3 * No order has been made and no resolution has been passed for the
winding up of the Company and no petition has been presented and no
meeting has been convened for the purpose of winding up the Company.
14.4 * No administration order has been made and no petition for such an
order has been presented in respect of the Company.
14.5 * No receiver (which expression shall include an administrative
receiver) has been appointed in respect of the Company or in respect of
all or any material part of its assets.
36
14.6 * No voluntary arrangement (as referred to in the Insolvency Act 1986)
or scheme of arrangement as regards its creditors has been proposed by
the directors of the Company or is in operation in relation to the
Company.
14.7 * The Vendor has the capacity and is empowered and authorised to enter
into this Agreement and to perform all obligations conferred upon it
under this Agreement and the entry or the performance of this Agreement
will not breach or constitute the default of any agreement, instrument
or arrangement, licence, approval or authority (including a licence) to
which the Vendor or the Company is a party
14.8 * The Group Members have used all reasonable endeavours to comply with
all material requirements of the Data Protection Act 1984 at all
relevant times whilst that Act was in force and with all relevant
material requirements of the Data Protection Xxx 0000 and has not
received notice of any objection from the Data Protection Commissioner
or his predecessor. Further, there are no outstanding requests for
information from any Data Subject or so far as the Vendor is aware any
objection from a Data Subject to the data maintained by Group and so
far as the Vendor is aware all relevant consents of Data Subjects are
held by the Group.
15. IT WARRANTIES
15.1 * All Information Technology used by each Group Member is either owned
by or validly leased or licensed to the Group Member.
15.2 * There are no material defects relating to the Information Technology
owned or used by the Group, and such Information Technology has not,
during the 12 months prior to the date hereof, failed to perform in any
way that materially affected the business of either Group Member.
15.3 * Details of all domain names registered or used by any Group Member
are disclosed in the Disclosure Letter.
15.4 * Details of the Information Technology used by each Group Member and
all agreements or arrangements relating to the use, lease, maintenance,
support and management of such Information Technology are set out in
the Disclosure Letter.
15.5 The registration of the Domain Name is transferred to the Company free
from any charge or other encumbrance or security. So far as the Vendor
is aware no person has any rights or interest in the Domain Name other
than the Vendor, provided that the level of the Vendor's awareness for
these purposes shall only be assessed by reference to the actual
knowledge or awareness of Xxxxxxx Xxxxxxxx, Xxxxxx Xxxxxx and Xxxx
Xxxxx and shall mean that the Vendor undertakes that it has made due
and careful enquiry of such named persons further provided however that
it shall not mean that the
37
Vendor has caused such named persons to make any enquiry or enquiries
whatsoever as to the relevant matters.
16. ENVIRONMENT
16.1 In this paragraph 16
"HSE LAWS" Means all applicable statutes and subordinate
legislation and other national, and local laws,
common laws or civil code, industry agreements or
codes of conduct insofar as they relate to or apply
to HSE Matters from time to time;
"HSE MATTERS" Means matters relating to health and safety or the
environment;
16.2 Except for a non-compliance or breach which has and will have no
material adverse effect on the business of the Group taken as a whole
each Group Member has complied with appropriate HSE Laws in respect of
its business.
17. RETURNS, DISPUTES AND CLEARANCES
17.1 * All notices, returns, computations, registrations and payments which
should have been made by the Company and all information required to be
supplied by the Company for any Taxation purpose have been made within
the requisite periods and are up-to-date, correct and on a proper basis
and none of them is the subject of any dispute with any Taxation
Authority.
17.2 * The Company is not involved in any dispute with any Taxation
Authority nor (so far as the Vendor is aware) is any such dispute
contemplated at the date of the Agreement.
17.3 * The Taxation affairs of the Company have never been the subject of
any investigation or enquiry by any Taxation Authority (other than
routine questions), and no Taxation Authority has indicated that it
intends to investigate the Taxation affairs of the Company.
17.4 * The Disclosure Letter contains details so far as they affect the
Company of all concessions, arrangements and agreements (whether formal
or informal) negotiated or entered into with any Taxation Authority and
no action has been taken by or on behalf of the Company which has had
or which (so far as the Vendor is aware) may have the result of
altering, prejudicing or in any way disturbing any such concession,
arrangement or agreement.
38
17.5 * All particulars furnished to a Taxation Authority in connection with
the application for any consent or clearance made on behalf of the
Company disclosed all facts and circumstances material to the decision
of the Taxation Authority and any such consent or clearance given
remains valid and effective and any such transaction for which such
consent or clearance was previously obtained has been carried into
effect (if at all) in accordance with the terms of the relevant
application, consent or clearance.
17.6 * The Company has not received any notice from any Taxation Authority,
including the Inland Revenue, which required or will or may require it
to withhold tax from any payment made since the Accounts Date or which
will or may be made after the date of this Agreement.
18. PENALTIES AND INTEREST
* The Company has not since the Accounts Date paid, and is not liable
to pay, any fine, penalty, charge, surcharge or interest charged by
virtue of any of the provisions of any Taxation Statute or otherwise
paid any Taxation after its due date for payment or become liable to
pay any Taxation the due date for payment of which has passed or become
prospectively liable to pay any Taxation the due date for payment of
which will arise in the 30 days after the date of this Agreement. The
Company has not become subject to any forfeiture by virtue of any such
provisions or the operation of any penal provisions contained in any
Taxation Statute.
19. TAXATION CLAIMS, LIABILITIES AND RELIEF
19.1 * The Company has sufficient records to enable it to make and complete
returns for Taxation purposes and to calculate the liability to
Taxation or relief arising on the disposal of any asset owned at the
Accounts Date or acquired since the Accounts Date but before
Completion.
19.2 * The Company has not omitted to make any Taxation claims, disclaimers,
elections and surrenders and/or give any notices and consents within
the requisite time periods the making, giving or doing of which was
assumed to have been made for the purposes of the Balance Sheet.
20. DISTRIBUTIONS AND PAYMENTS
20.1 * The Company has deducted and properly accounted to the appropriate
Taxation Authority for all amounts which it has been obliged or
entitled to deduct in respect of Taxation, has complied fully with all
reporting requirements relating to all such amounts and has (where
required by the applicable Taxation Statute) duly provided certificates
of deduction of tax to the recipients of payments from which deductions
have been made.
39
20.2 * The Company has not at any time declared, paid or made any dividend
or other payment which is, or could be treated as, a distribution for
the purposes of Part VI ICTA or section 418 ICTA except any dividend
disclosed in its audited statutory accounts nor is it bound to make
such a distribution.
20.3 * The Company has not made or received any exempt distribution within
the meaning of section 213 ICTA, and has at no time been a relevant
company in relation to an exempt distribution for the purposes of that
section or concerned in an exempt distribution for the purposes of
section 214 ICTA.
20.4 * The Company has not issued any share capital or other security as
paid up otherwise than by the receipt of new consideration within the
meaning of Part VI ICTA.
20.5 * The Company is not under any obligation to make any future payments
which will not be deductible for corporation tax purposes, including
any payments which will be wholly or partially disallowable as
deductions or charges in computing the profits of the Company for the
purposes of corporation tax, whether by virtue of the provisions of
section 74, 79, 125, 338, 577, 779 to 786 (inclusive) or 787 ICTA or
otherwise.
20.6 * The Company has not since the Accounts Date made any payment to, or
provided any benefit for, any present or former director, employee or
officer which is wholly or partially disallowable as a deduction in
computing the profits of the Company for the purposes of corporation
tax, and is under no obligation to make any such payment or provide any
such benefit.
20.7 * No part of the amount payable on the redemption of any share capital
or security at par will be a distribution as defined in ICTA.
21. EMPLOYEE BENEFITS
21.1 * Without prejudice to the generality of paragraph 20.1, the Company
has properly operated the Pay As You Earn system, by making deductions,
as required by the applicable Taxation Statute, from all payments made,
or treated as made, to its directors, employees or officers or former
directors, employees or officers or any persons required to be treated
as such, and accounting to the Inland Revenue for all Taxation so
deducted and for all Taxation chargeable on the Company on benefits
provided for its directors, employees or officers, or former directors,
employees or officers.
21.2 * The Company has complied with all reporting requirements, and proper
records have been maintained, relating to all payments and benefits
made or provided, or treated as made or provided, to its directors,
employees or officers or former directors, employees or officers or
persons required to be treated as such.
40
21.3 * The Disclosure Letter contains full details of all dispensations
granted to the Company by the Inland Revenue under section 166 ICTA or
otherwise relating to payments and benefits made or provided, or
treated as made or provided, to its directors, employees or officers or
former directors, employees or officers or any persons required to be
treated as such, and the reporting requirements mentioned in relation
to such payments and benefits in paragraph 21.2 together with full
details of any PAYE settlement agreements negotiated and agreed with
the Inland Revenue under section 206A ICTA.
21.4 * The Disclosure Letter contains full details of all profit-related pay
schemes providing for the payment to any employee of the Company of
emoluments calculated by reference to profits, which have ever been
registered under Chapter III Part V ICTA.
22. CLOSE COMPANIES
* The Company is not, and has never been, a close company as defined in
section 414 ICTA.
23. GROUP TRANSACTIONS
23.1 * The Company has not in the last six years:-
23.1.1 * acquired any asset from any company which at the time of the
acquisition was a member of the same group of companies as
defined in section 170 TCGA;
23.1.2 * surrendered or claimed or agreed or arranged to surrender or
claim (and prior to Completion will not surrender or claim or
agree or arrange to surrender or claim) any amount by way of
group relief pursuant to sections 402 to 413 (inclusive) ICTA
and has not made or received and is not liable to make or
entitled to receive a payment for group relief;
23.1.3 * surrendered or claimed or agreed or arranged to surrender or
claim (and prior to Completion will not surrender or claim or
agree or arrange to surrender or claim) any amount of ACT
pursuant to section 240 ICTA and has not made or received and
is not liable to make or receive a payment for surrender of
ACT;
23.1.4 * surrendered or claimed or agreed or arranged to surrender or
claim (and prior to Completion will not surrender or claim or
agree or arrange to surrender or claim) any amount by way of
Taxation refund and has not
41
made or received and is not liable to make or receive a
payment for or in respect of any Taxation refund;
23.1.5 * joined in the making of any election pursuant to section 247
ICTA or paid any dividend without paying ACT or made any
payment without deduction of income tax in circumstances such
that ACT ought to have been paid or income tax ought to have
been deducted as mentioned in section 247(6) ICTA;
23.1.6 * been a party to any such reconstruction as is described in
section 343 ICTA;
23.1.7 * acquired an asset as trading stock from a member of the same
group where the asset did not form part of the trading stock
of any trade carried on by the other member, as mentioned in
section 173(1) TCGA, or disposed of an asset which formed part
of the trading stock of any trade carried on by the Company to
another member of the same group which acquired the asset
otherwise than as trading stock of a trade carried on by the
other member, as mentioned in section 173(2) TCGA;
23.1.8 * ceased to be a member of a group of companies in such
circumstances that a profit or gain was deemed to accrue to
the Company by virtue of section 178 or 179 TCGA and neither
the execution of this Agreement nor Completion will result in
any profit or gain being deemed to accrue to the Company for
any Taxation purpose whether pursuant to section 179 TCGA or
otherwise;
23.1.9 * entered into any arrangement with the Inland Revenue
pursuant to section 36 FA 1988
23.2 * Amcare Limited does not hold the shares in Novacare UK Limited such
that any profit on the sale of those shares would be a trading receipt.
23.3 * There are no circumstances by virtue of which section 410 or 413 ICTA
would prevent each Company being treated as a member of the same group
of companies as each other such member for the purposes of Chapter IV
Part X ICTA for any accounting period commencing on or before the date
of this Agreement.
24. TAX AVOIDANCE
* The Company has not entered into or been a party to any scheme,
arrangement or transaction designed partly or wholly or containing
steps or stages having no commercial effect designed partly or wholly
for the purpose of avoiding or deferring *
42
* Taxation or reducing a liability to Taxation and in particular, but
without limitation, has not entered into or been a party to any scheme,
arrangement or transaction to which the provisions of any of sections
34 to 37 (inclusive), 56 and 398, 395, 399, 703 to 709 (inclusive),
713, 714, 729 to 737 (inclusive), 770, 775, 776, 779 to 787
(inclusive), 798 and Schedule 28AA ICTA could apply.
25. BASE VALUES AND ACQUISITION COSTS
25.1 * If each of the capital assets of the Company owned at the Accounts
Date was disposed of for a consideration equal to the book value of
that asset in, or adopted for the purpose of, the Balance Sheet, or in
the case of assets acquired since the Accounts Date, equal to the
consideration given on acquisition, no liability to corporation tax on
chargeable gains or balancing charge under the CAA would arise (and for
this purpose there will be disregarded any relief or allowance
available to the Company other than amounts falling to be deducted from
the consideration receivable under section 38 TCGA).
25.2 * The Company does not own any wasting asset within the meaning of
section 44 TCGA which does not qualify in full for capital allowances
as described in section 47(1) TCGA.
26. CAPITAL GAINS
* The Company has not:-
26.1 * in the last ten years made a claim under sections 152 to 158
(inclusive) or 175 or 247 TCGA which affects the amount of the
chargeable gain or allowable loss which would, but for such claim, have
arisen upon a disposal of any asset or acquired any asset or any
interest in any asset in circumstances in which another company has
made a claim under section 175 TCGA which affects for the purposes of
the TCGA the amount or value of the consideration given for such asset
or interest;
26.2 * been a party to, involved in, or connected with any disposal of
assets within the meaning of section 29 TCGA or any scheme or
arrangement such as are mentioned in section 30 TCGA;
26.3 * been a party to, involved in, or connected with any exchange of
securities whether or not (by virtue of section 135 TCGA) section 127
TCGA applied to the exchange;
26.4 * carried out or been involved in or connected with any reorganisation
or scheme of reconstruction or amalgamation whether or not (by virtue
of section 126 or 136 TCGA) section 127 TCGA applied to such
reorganisation or scheme of reconstruction or amalgamation;
43
26.5 * carried out or been involved in or connected with any scheme of
reconstruction or amalgamation involving a transfer of business assets
whether or not section 139 TCGA applied to the transfer;
26.6 * been a party to, involved in, or connected with, any depreciatory
transaction to which section 176 TCGA applied (including any
transaction to which that section applied by virtue of section 177
TCGA);
26.7 * acquired or disposed of any asset or entered into any transaction or
arrangement whatsoever otherwise than by way of bargain at arm's length
or in respect of which there may be substituted for the actual
consideration given or received by the Company a different
consideration for any Taxation purpose;
26.8 * disposed of any chargeable asset for a consideration not payable
wholly in cash on completion of the disposal;
26.9 * acquired any debt (other than a debt on a security (as defined in
section 132 TCGA)) in respect of which it is not the original creditor;
26.10 * made an election under paragraph 4 Schedule 2 TCGA and no asset owned
by the Company is subject to a deemed disposal and re-acquisition under
paragraph 16, 19 or 20 Schedule 2 TCGA;
26.11 * made an election under section 35(5) TCGA nor has the Company made
its first relevant disposal for the purposes of section 35(6) TCGA.
27. CAPITAL ALLOWANCES
27.1 * All capital expenditure incurred by the Company since the Accounts
Date and all capital expenditure which will be incurred by the Company
under any existing contract has qualified or will be capable of
qualifying for capital allowances.
27.2 * Nothing has occurred outside the ordinary course of business of the
Company since the Accounts Date as a result of which the Company could
be required to bring a disposal value into account or suffer a
balancing charge for the purpose of capital allowances under section 4,
24, 87, 100 or 128 CAA or a withdrawal of first year allowances or a
recovery of excess relief under section 46 or 47 CAA.
27.3 * The Company has not made any election under section 37 CAA nor is it
taken to have made any such election under section 37(8)(c) CAA.
27.4 The Company has not obtained any capital allowances under Chapter VI
Part II CAA.
44
28. VAT: GENERAL
28.1 * The Company:
28.1.1 * has throughout the six years ending on Completion ("the
Severance Date") been treated as for the purposes of section
43 VATA as a member of a group of companies ("the VAT Group")
of which the representative member is Allied Oxycare Limited
("the Representative Member"). The Company ceased to be a
member of the VAT Group on the Severance Date and has, since
that date, been independently registered for the purposes of
VATA and such registration is not subject to any conditions
imposed by or agreed with the Commissioners of Customs and
Excise;
28.1.2 * and the Representative Member have complied in all material
respects with all statutory requirements, orders, provisions,
directions or conditions relating to value added tax;
28.1.3 * and the Representative Member maintain complete, correct and
up-to-date records for the purposes of all legislation
relating to VAT and is not subject to any condition imposed by
the Commissioners of Customs and Excise under paragraph 6
Schedule 11 VATA;
28.1.4 * and the Representative Member are not in arrears with any
payment or returns under legislation relating to VAT or excise
duties, or liable to any abnormal or non-routine payment of
VAT, or any forfeiture or penalty, or to the operation of any
penal provision;
28.1.5 * and the Representative Member have not within the two years
ending on the date of this Agreement been served with any
penalty liability notice under section 64 VATA or any
surcharge liability notice under section 59 VATA or been
issued with any written warning under section 76(2) VATA or
been in default in respect of any prescribed accounting period
as mentioned in section 59 or 59A VATA;
28.1.6 * and the Representative Member have not been required by the
Commissioners of Customs and Excise to give security under
paragraph 4 Schedule 11 VATA;
28.1.7 * within the six years ending on the Accounts Date, has not
been registered for the purposes of VATA otherwise than as
part of the VAT Group or since the Severance Date as an
independently registered company and other than as a member of
the VAT Group and no transaction has been effected in
45
consequence of which the Company is or may be held liable for
any VAT arising from supplies made by another company;
28.1.8 * and the Representative Member have no interest and have not
at any time within the period of ten years preceding the date
of this Agreement had any interest in any assets treated as
items under Part XV of the Value Added Tax Regulations 1995;
and
28.1.9 * is not, has not been within the last six years and has not
agreed to become, an agent, manager or factor for the purposes
of section 47 VATA of any person who is not resident in the
United Kingdom or been appointed as a VAT representative of
any person for the purposes of section 48 VATA.
28.2 * All supplies of goods and services made by the Company are taxable
supplies for the purposes of the VATA and all input tax is deductible
in accordance with the provisions of sections 25 and 26 VATA.
28.3 * The Company has never disposed of or acquired any business or assets
in the circumstances mentioned in section 49 VATA or Article 5 of the
Value Added Tax (Special Provisions) Order 1995.
28.4 * The Company has never been registered for the purposes of VAT by
reason of its intention to make taxable supplies (within the meaning of
section 4 VATA) and has not claimed input tax on the basis of
anticipated taxable supplies which have not yet been made.
28.5 * There are set out in the Disclosure Letter details of all outstanding
claims made by the Company under section 22 Value Added Tax Xxx 0000
and section 36 VATA.
28.6 * The Company has not been a party to any transaction or arrangement as
a result of which a direction has been or may be given under Schedule
9A VATA.
28.7 * No agreement or arrangements have been made or are in place under
which the Company is or could become liable (except as provided for in
the Accounts) to make any payment to the Representative Member (or any
other past or present member of the VAT Group) in respect of some or
all of the Representative Member's liability to account for VAT.
29. VAT: PROPERTY TRANSACTIONS
29.1 * The Company has not incurred any liability in respect of VAT (whether
to HM Customs and Excise or to any other person) by reason of the
provisions of paragraph
46
2(1) Schedule 10 VATA and there are no circumstances whereby the
Company could become so liable as a result of a person making an
election under that paragraph.
29.2 * Neither the Company nor any relevant associate (within the meaning of
paragraph 3(7) Schedule 10 VATA) has made any election under paragraph
2(1) Schedule 10 VATA in respect of any land in, over or in respect of
which the Company has any interest, right or licence to occupy and the
Company is not aware of any intention to make such an election.
29.3 * The Company does not own the fee simple in any building or work such
as is referred to in Item 1(a) Group 1 Schedule 9 VATA the supply of
which would be standard rated.
29.4 * No interest in or right over land or any licence to occupy land of
the Company constitutes or is subject to a developmental tenancy,
developmental lease or developmental licence such as is referred to in
Item 1(b) Group 1 Schedule 9 VATA.
29.5 * The Company has not incurred any liability under the provisions of
paragraph 6 Schedule 10 VATA or the Value Added Tax (Self Supply of
Construction Services) Order 1989 and there are no circumstances in
existence at the date of this Agreement whereby the Company would
become so liable on the occurrence of any of the events mentioned in
paragraph 5(1)(a) or 5(1)(b) Schedule 10 VATA or paragraph 3 of the
Value Added Tax (Self Supply of Construction Services) Order 1989.
29.6 * The Company has not issued any certificate such as is mentioned in
paragraph 13(4)(f) Schedule 3 FA 1989 and has not constructed any
building or work (or reconstructed any building) in circumstances in
which such a certificate could have been issued.
30. STAMP DUTY AND STAMP DUTY RESERVE TAX
30.1 * All documents in the possession of the Company which are liable to
stamp duty and which confer any right upon the Company have been duly
stamped.
30.2 * The Company has never incurred or otherwise been under a liability to
stamp duty reserve tax and there are no circumstances which may result
in the Company being so liable.
30.3 * Within the five years ending on the date of this Agreement, the
Company has not made any claim for relief or exemption under section 42
FA 1930 or section 75, 76 or 77 FA 1986.
47
31. RESIDENCE AND OFFSHORE INTERESTS
31.1 * The Company is and has at all times been resident in the United
Kingdom for the purposes of all Taxation Statutes and has not at any
time been resident outside the United Kingdom for the purposes of any
Taxation Statute or any double taxation arrangements.
31.2 * The Company is not, and has never been, a dual-resident investing
company within the meaning of section 404 ICTA.
31.3 * The Company has not at any time been subject to Taxation in any
jurisdiction outside the United Kingdom or had a branch outside the
United Kingdom or any permanent establishment (as that expression is
defined in the respective double taxation relief orders current at the
date of this Agreement) outside the United Kingdom.
31.4 * The Company does not own and has not at any time owned any interest
in a controlled foreign company within the meaning of sections 747 and
752 ICTA.
31.5 * The Company does not and has at no time held shares in a company
which is not resident in the United Kingdom and which would be a close
company if it were resident in the United Kingdom, in circumstances
such that a chargeable gain accruing to that other company could be
apportioned to the Company under section 13 TCGA.
32. THE BALANCE SHEET
32.1 * The Company has no liability in respect of Taxation (whether actual
or contingent) that is not fully provided for in the Accounts and, in
particular, has no outstanding liability for:
32.1.1 * Taxation in any part of the world assessable or payable by
reference to profits, gains, income or distributions earned,
received or paid or arising or deemed to arise on or at any
time prior to the Accounts Date or in respect of any period
starting before the Accounts Date; or
32.1.2 * for purchase, value added, sales or other similar tax in any
part of the world referable to transactions effected on or
before the Accounts Date
that is not provided for in full in the Accounts.
32.2 * The amount of the provision for deferred Taxation in respect of each
Company contained in the Accounts was, at the Accounts Date, adequate
and fully in accordance with accountancy practices generally accepted
in the United Kingdom and commonly adopted by companies carrying on
businesses similar to those carried on by each
48
Company and, in particular, was in accordance with SSAP 15 (or any
replacement of it instituted by the Accounting Standard Board).
32.3 * If all facts and circumstances which are now known to the Company or
the Vendor had been known at the time the Accounts were drawn up, the
provision for deferred Taxation that would be contained in the Accounts
would be no greater than the provision which is so contained.
33. TAX EVENTS SINCE THE ACCOUNTS DATE
* Since the Accounts Date:
33.1 * the Company has not declared, made or paid any distribution within
the meaning of ICTA 1988;
33.2 * no accounting period of the Company has ended;
33.3 * no event has occurred which will give rise to a tax liability on the
Company calculated by reference to deemed (as opposed to actual)
income, profits or gains or which will result in the Company becoming
liable to pay or bear a tax liability directly or primarily chargeable
against or attributable to another person, firm or company;
33.4 * no disposal has taken place or other event occurred which will or may
have the effect of crystallising a liability to Taxation which should
have been included in the provision for deferred Taxation contained in
the Accounts if such disposal or other event had been planned or
predicted at the Accounts Date;
33.5 * the Company has not made any payment or incurred any obligation to
make a payment which will not be deductible in computing trading
profits for the purposes of corporation tax, or be deductible as a
management expense of an investment company;
33.6 * the Company has not been a party to any transaction for which any tax
clearance provided for by statute has been or could have been obtained.
34. INSTALMENT PAYMENTS, ETC
34.1 * The Disclosure Letter correctly identifies whether or not the Company
is a "large company" within the meaning of regulation 3 of the
Instalment Payments Regulations.
34.2 * The Disclosure Letter contains full details of all instalment
payments required to be made by the Company under the Instalment
Payments Regulations since the Accounts Date and of all repayments
claimed by the Company under the Instalment Payments Regulations since
the Accounts Date, all such payments or repayments have been duly made
or received, and the computation of each such payment or claim for
repayment
49
took full and proper account of all relevant estimates and other
information available to the Company at the time when any such payment
was required to be made or (as the case may be) at the time when any
such claim for repayment was submitted to the Inland Revenue.
34.3 * The Company has sufficient books, documents, records and other
information to enable it promptly to comply in full with any notice
served on it under regulations 10 or 11 of the Instalment Payments
Regulations in respect of any accounting period commencing before
Completion.
34.4 * No action has been taken by the Company before Completion such that
the provisions of regulation 14 of the Instalment Payments Regulations
could have effect in respect of the Company at any time.
35. DUTIES, ETC
* All value added tax, import duty and other taxes or charges payable
to HM Customs and Excise upon the importation of goods and all excise
duties payable to HM Customs and Excise in respect of any assets
(including trading stock) imported, owned or used by the company have
been paid in full.
36. REPLACEMENT OF BUSINESS ASSETS
* Full particulars of each claim under section 115 or 116 CGTA 1979 or
under sections 152 or 153 TCGA 1992 made prior to the date of this
Agreement to which section 117 CGTA 1979 or section 154 TCGA 1992
applies and which affects any asset which was owned by the Company on
or after the Accounts Date have (except where the held over gain is
treated as having accrued prior the Accounts Date) been disclosed in
writing to the Purchaser.
50
SCHEDULE 4
Taxation
DATED 2000
--------------------------------------------------------------------------------
(1) OMNICARE LIMITED
(2) XXXXXXX-XXXXX SQUIBB HOLDINGS LIMITED
--------------------------------------------------------------------------------
DEED OF COVENANT
--------------------------------------------------------------------------------
relating to Amcare Limited and its subsidiary Novacare UK Limited
EVERSHEDS
0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxxxx XX0 0XX
Tel: 0000 0000000
Fax: 0000 0000000
51
THIS DEED is made on 2000
BETWEEN
(1) OMNICARE LIMITED (registered number 3073148) whose registered office is
at Xxxxxxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxxxx XX00
0XX ("the Vendor"); and
(2) XXXXXXX-XXXXX SQUIBB HOLDINGS LIMITED (registered number 263455) whose
registered office and principal place of business is at Xxxxxxxx Xxxxx,
Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, XX00 0XX ("the Purchaser").
BACKGROUND
This Deed is made pursuant to the provisions of the Agreement.
OPERATIVE PROVISIONS
PART 1 - INTERPRETATION
37. INTERPRETATION
37.1 In this Deed the expressions "Business Day", "Completion", "the
Disclosure Letter", "the Shares" and "the Warranties" have the meanings
given to them in clause 1 of the Agreement and the following
expressions have the following meanings unless inconsistent with the
context:
"THE ACCOUNTS DATE" 30 September 2000
"ACT" Advance corporation tax
"THE AGREEMENT" an Agreement dated 22 November 2000 and made
between (1) the Vendor and (2) the Purchaser
providing for the acquisition by the
Purchaser of the entire issued share capital
of Amcare Limited together with its
subsidiary Novacare UK Limited
"THE AUDITORS" The auditors for the time being of the
Company
"THE BALANCE SHEET" The audited balance sheet of the Company as
at the Accounts Date
"CAA" Capital Allowances Act 1990
52
"CLAIM" Any notice, demand, assessment, letter or
other document issued, or action taken, by
or on behalf of any Taxation Authority and
the submission of any Taxation form, return
or computation from which, in either case,
it appears to the Purchaser that the Company
is or may be subject to a Liability to
Taxation or other liability in respect of
which the Vendor is or may be liable under
CLAUSE 2
"COMPANY" Amcare Limited, registered number 3191025
whose registered office is at 00X Xxxxxxx
Xxx, Xxxxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx & Xxxx, XX0 0XX and Novacare UK Limited
registered number 3196506 whose registered
office is at Xxxx 00 Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx, Xxxxxxxxxx, XX0 0XX
"DISPUTE" any dispute, appeal, negotiations or other
proceedings in connection with a Claim
"EVENT" any event, fact or circumstance whatsoever
including but not limited to:
(a) any transaction, action or omission
(whether or not the Company is
party to it);
(b) any change in the residency of any
person for the purposes of
Taxation;
(c) the earning, receipt or accrual for
any Taxation purpose of any income,
profits or gains;
(d) the death of any person;
(e) the incurring for any Taxation
purpose of any loss or expenditure;
(f) the declaration, payment or making
of any dividend or other
distribution;
(g) the sale and purchase of the Shares
pursuant to this Agreement; and
53
(h) Completion
"FA" Finance Act
"ICTA" Income and Corporation Taxes Xxx 0000
"IHTA" Inheritance Tax Xxx 0000
"LIABILITY TO TAXATION" (a) any liability of the Company to
make an actual payment of or in
respect of Taxation (whether or not
the Company is primarily so liable
and whether or not the Company has
any right of recovery against any
other person); and
(b) the use or set-off by the Company
(in whole or in part) of any
Purchaser's Relief to reduce or
eliminate any liability of the
Company to make an actual payment
of Taxation (whether or not the
Company is primarily so liable and
whether or not the Company has any
right of recovery against any other
person) in respect of which the
Vendor would otherwise have been
liable under CLAUSE 2; and
(c) the loss by the Company (in whole
or in part) of any Purchaser's
Relief which falls within (a) or
(b) of the definition of
Purchaser's Relief
"PURCHASER'S RELIEF" (a) any Relief which was treated as an
asset of the Company in the Balance
Sheet; and
(b) any Relief which was taken into
account in computing (and so
reducing or eliminating) any
provision for deferred tax which
appears in the Balance Sheet or
which would have appeared in the
Balance Sheet but for the presumed
availability of such Relief; and
54
(c) any Relief which arises as a result
of any Event which has occurred or
occurs after Completion; and
(d) any Relief which arises in the
ordinary course of business of the
Company in respect of the period
between the Accounts Date and
Completion
"RELIEF" (a) any relief, allowance, exemption,
set-off, deduction or credit
available from, against or in
relation to Taxation or in the
computation for any Taxation
purpose of income, profits or
gains; and
(b) any right to a repayment of
Taxation
"SAVING" the reduction or elimination of any
liability of the Company to make an actual
payment of Taxation by the use of any Relief
arising as a result of a Liability to
Taxation in respect of which the Vendor has
made a payment under CLAUSE 2
"TAXATION" (a) any tax, duty, impost, withholding
or levy, past or present, of the
United Kingdom or elsewhere,
whether governmental, state,
provincial, local governmental or
municipal, including but not
limited to income tax (including
income tax required to be deducted
or withheld from or accounted for
in respect of any payment under
section 203 ICTA or otherwise),
corporation tax, including any
amount payable under section 419
ICTA, ACT, capital gains tax,
inheritance tax, VAT, any liability
arising under section 601 ICTA,
customs and other import or export
duties, stamp duty, stamp duty
reserve tax, national insurance and
social security contributions (but
excluding rates and water rates);
and
55
(b) any fine, penalty, surcharge, or
interest relating to any tax, duty,
impost, withholding or levy
mentioned in (a) of this definition
or to any account, record, form,
return or computation required to
be kept, preserved, maintained or
submitted to any person for the
purposes of any such tax, duty,
impost, withholding or levy
"TAXATION ASSESSMENT" any assessment, demand, determination or
other similar formal notice of a Liability
to Taxation issued by or on behalf of any
Taxation Authority by virtue of which the
Company or any other person either is liable
to make a payment of Taxation or will, with
the passing of time become so liable (in the
absence of any successful application to
postpone any such payment) and shall also
mean any self-assessment made by the Company
or any other person in respect of any amount
of Taxation which any of them either
considers that it is liable to pay or
considers that it will, with the passing of
time, become liable to pay
"TAXATION AUTHORITY" any authority, whether of the United Kingdom
or elsewhere, competent to impose, assess or
collect Taxation, including but not limited
to the Board of Inland Revenue and the
Commissioners of Customs and Excise
"TAXATION STATUTE" any statute (and all regulations and other
documents having the force of law under such
statute) published, enacted, issued or
coming into force on or before the date of
this Agreement relating to Taxation
"TCGA" Taxation of Chargeable Gains Xxx 0000
"TMA" Taxes Management Xxx 0000
"VAT"
value added tax imposed by the VATA and any
subordinate legislation made pursuant
thereto
56
and in any other jurisdiction the equivalent
tax
"VATA" Value Added Tax Xxx 0000
1.2 references to Events include Events which are deemed to have occurred
for any Taxation purpose and references to income, profits or gains
earned, received or accrued for any Taxation purpose include income,
profits or gains which are deemed to have been earned, received or
accrued for any Taxation purpose;
1.3 references to the loss of a Relief include the disallowance of a Relief
and the failure to obtain a Relief;
1.4 references to any statute or statutory provisions will, unless the
context otherwise requires, be construed as including references to any
earlier statute or the corresponding provisions of any earlier statute,
whether repealed or not, directly or indirectly amended, consolidated,
extended or replaced by such statute or provisions, and to any
subsequent statute or the corresponding provisions of any subsequent
statute directly or indirectly amending, consolidating, extending,
replacing or re-enacting the same, and will include any orders,
regulations, instruments or other subordinate legislation made under
the relevant statute or statutory provisions;
1.5 References to clauses are to clauses of this Deed except where
inconsistent with the context.
2. COVENANT
Subject to the provisions of this Deed, the Vendor covenants with the
Purchaser to pay to the Purchaser an amount equal to the amount of:
2.1 any Liability to Taxation which has arisen or arises as a consequence
of any Event which occurred on or before Completion, whether or not
such Liability to Taxation has been discharged on or before Completion;
and
2.2 any Liability to Taxation arising as a consequence of any of the
following occurring or being deemed to occur at any time after
Completion:
2.2.1 the disposal by any Relevant Company of any asset or of any
interest in or right over any asset; or
2.2.2 the making by any Relevant Company of any such payment or
deemed payment as constitutes a chargeable payment for the
purposes of section 214 ICTA or the making of any such payment
or deemed payment by any person, not being the Purchaser and
nor being a company, that is acting in pursuant of a scheme or
arrangements made with any Relevant Company; or
57
2.2.3 any Relevant Company ceasing to be resident in the United
Kingdom for the purposes of any Taxation; or
2.2.4 any Relevant Company failing to pay the whole of the Taxation
charged by any Taxation Assessment made in respect of that
Relevant Company within six months of the date of that Tax
Assessment,
and, for the purposes of this CLAUSE 2.2, the term "Relevant Company"
shall mean any company other than any of the following persons, that is
to say the Company, the Purchaser and any company that may be treated
for the purposes of any Taxation as being a member of the same group of
companies as the Purchaser or as being associated with the Purchaser;
and
2.3 any Liability to Taxation which arises as a consequence of any Event
which occurs after Completion pursuant to a legally binding obligation
(whether or not conditional) entered into by the Company on or before
Completion otherwise than in the ordinary course of business of the
Company; and
2.4 any Liability to Taxation which has arisen or arises as a consequence
of
2.4.1 the settlement pursuant to the Settlement Agreement ("the
Settlement") (including for the avoidance of doubt the
treatment of the Settlement in the Balance Sheet); or
2.4.2 any costs or expenses incurred in relation to the Settlement
not being deductible for corporation tax purposes; and
2.5 any reasonable costs, fees or expenses properly incurred by the Company
or the Purchaser in connection with:
2.5.1 any Liability to Taxation in respect of which the Vendor is
liable under any of CLAUSES 2.1 TO 2.4; or
2.5.2 any Claim or any Dispute notice of which is given to the
Vendor under CLAUSE 7.1 and which the Vendor agrees in writing
that the Purchaser should dispute.
3. QUANTIFICATION
For the purposes of CLAUSE 2 the amount of a Liability to Taxation will
be determined as follows:
58
3.1 the amount of a Liability to Taxation falling within (a) of the
definition of that expression in CLAUSE 1.1 will be the amount of the
actual payment of Taxation or amount in respect of Taxation which the
Company is liable to make;
3.2 the amount of a Liability to Taxation falling within (b) of the
definition of that expression in CLAUSE 1.1 will be the amount of
Taxation saved by the Company as a result of the use of the Purchaser's
Relief; and
3.3 the amount of a Liability to Taxation falling within (c) of the
definition of that expression in CLAUSE 1.1 will be:
3.3.1 the amount of Taxation which would have been saved by the
Company but for the loss of the Purchaser's Relief on the
basis of the rates of Taxation current at the date of the
loss, assuming for this purpose that the Company then had
sufficient profits or was otherwise in a position actually to
use the Purchaser's Relief; or
3.3.2 if the Purchaser's Relief lost was a right to a repayment of
Taxation, the amount of the repayment of Taxation so lost.
4. EXCLUSIONS
4.1 The Vendor will not be liable under CLAUSE 2 in respect of a Liability
to Taxation or other liability under CLAUSE 2.5 to the extent to which:
4.1.1 such Liability to Taxation or other liability was discharged
on or before the Accounts Date and the discharge of such
Liability to Taxation or other liability was taken into
account in the Balance Sheet; or
4.1.2 provision or reserve was made in the Balance Sheet for such
Liability to Taxation or other liability; or
4.1.3 such Liability to Taxation or other liability would not have
arisen but for any Event which occurred in the ordinary course
of business of the Company after the Accounts Date and on or
before Completion; or
4.1.4 payment has already been made in respect of such Liability to
Taxation or other liability under this Deed or otherwise under
the Agreement; or
4.1.5 such Liability to Taxation or other liability would not have
arisen but for a change in legislation (including but not
limited to an increase in rates of Taxation) or in the
published practice of any Taxation Authority in either case
first enacted or announced after Completion and having
retrospective effect; or
59
4.1.6 such Liability to Taxation or other liability would not have
arisen but for a voluntary act, transaction or omission of the
Company after Completion:
4.1.6.1 otherwise than pursuant to a legally binding
obligation entered into by the Company on or before
Completion; and
4.1.6.2 otherwise than in the ordinary course of business of
the Company; and
4.1.6.3 otherwise than one carried out or effected with the
express written consent of the Vendor; or
4.1.7 such Liability to Taxation or other liability would not have
arisen but for a disclaimer by the Company after Completion of
capital allowances or any other Relief available to and
claimed by the Company before Completion in respect of any
period ended on or before the Accounts Date; or
4.1.8 such Liability to Taxation or other liability would not have
arisen but for a failure or omission by the Company or the
Purchaser to make any claim, election, surrender or disclaimer
or give any notice or consent or do any other thing after
Completion the making, giving or doing of which was taken into
account in computing the provision of Taxation or deferred tax
in the Balance Sheet provided that the requirement to make
such claim, election, surrender or disclaimer or to give such
notice or consent or do any other thing was disclosed in the
Disclosure Letter or otherwise notified in writing to the
Purchaser at least thirty days before the deadline for the
making, giving or doing of such thing; or
4.1.9 any Relief other than a Purchaser's Relief is available to
reduce such Liability to Taxation or other liability provided
that, for the purposes of this paragraph 4.1.9, a Relief other
than a Purchaser's Relief will only be "available" if and to
the extent that a Taxation Authority has confirmed in writing
that the Relief exists and is available to be utilised; or
4.1.10 such Liability to Taxation or other liability would not have
arisen but for any change after Completion in the bases upon
which the accounts or tax returns and computations of the
Company are prepared and/or in the policies or practices
adopted in the preparation of such accounts or tax returns and
computations save to comply with generally accepted accounting
principles or law as current at Completion; or
4.1.11 such Liability to Taxation or other liability would not have
arisen but for the failure of the Purchaser to comply with its
obligations under clause 7; or
60
4.1.12 such Liability to Taxation or other liability arises from any
income, profits or gains received by the Company which are not
reflected in the Balance Sheet and such income, profits or
gains exceed such Liability to Taxation or other liability; or
4.1.13 such Liability to Taxation or other liability would not have
arisen but for the cessation or transfer of any trade of the
Company after Completion.
4.2 For the purposes of CLAUSE 4.1.3 and without prejudice to the
generality of that clause none of the following will be regarded as an
Event occurring in the ordinary course of business of the Company:
4.2.1 any distribution or deemed distribution for the purposes of
any Taxation;
4.2.2 the disposal or acquisition of any asset (including trading
stock) or the supply or obtaining of any service or business
facility of any kind (including a loan of money or the
letting, hiring or licensing of any tangible or intangible
property) in circumstances where the consideration (if any)
actually received or given for such disposal, acquisition,
supply or obtaining is different from the consideration deemed
to have been received or given for any Taxation purpose;
4.2.3 any Event which gives rise to a Liability to Taxation in
respect of deemed (as opposed to actual) income, profits or
gains;
4.2.4 any Event which gives rise to a Liability to Taxation under
section 126 and Schedule 23 FA 1995;
4.2.5 any Event which gives rise to a Liability to Taxation under
Part XVII ICTA;
4.2.6 any scheme, arrangement or transaction designed partly or
wholly or containing steps or stages designed partly or wholly
for the purpose of avoiding or reducing or deferring a
Liability to Taxation which contains steps or stages having no
commercial effects;
4.2.7 the creation, cancellation or reorganisation of any share or
loan capital of the Company;
4.2.8 the failure by the Company to deduct or account for any
Taxation;
4.2.9 the Company ceasing or being deemed to cease to be a member of
a group of companies or associated with any other company for
Taxation purposes;
61
4.2.10 any Event which results in the Company becoming liable to pay
or bear a Liability to Taxation chargeable directly or
primarily against or attributable directly or primarily to
another person (not being the Company);
4.2.11 any Event which gives rise to any fine, penalty, surcharge,
interest or other imposition relating to any Taxation.
5. DEDUCTIONS FROM PAYMENTS
5.1 Except as required by law all payments by the Vendor under this Deed
will be made free and clear of all deductions and withholdings (whether
in respect of Taxation or otherwise).
5.2 If any deduction or withholding is required by law to be made from any
payment by the Vendor to the Purchaser in the UK under this Deed or if
(ignoring any available Relief) the Purchaser is subject to Taxation in
the UK in respect of any payment by the Vendor under this Deed, the
Vendor covenants with the Purchaser to pay to the Purchaser such
additional amount as is necessary to ensure that the net amount
received and retained by the Purchaser (after taking account of such
deduction or withholding or Taxation) is equal to the amount which it
would have received and retained had the payment in question not been
subject to the deduction or withholding of Taxation.
5.3 If, at any time after increased payment is made by the Vendor by virtue
of the application of CLAUSE 5.2, the Purchaser receives or is granted
a credit against or remission from any Taxation payable by it which it
would not otherwise have received or been granted, the Purchaser shall
as soon as reasonably practicable reimburse the Vendor with such amount
as shall leave the Purchaser (after such reimbursement) in no worse a
position than it would have been in had the circumstances giving rise
to the increased payment not in fact arisen.
6. DUE DATE FOR PAYMENT
6.1 The due date for the making of a payment by the Vendor under this Deed
will be:
6.1.1 the date falling five Business Days after the Purchaser has
served notice on the Vendor demanding such payment; or
6.1.2 in any case involving a liability of the Company or the
Purchaser to make an actual payment (whether or not a payment
of Taxation), the later of the date mentioned in CLAUSE 6.1.1
and the date falling five clear Business Days before the last
date upon which the payment is required to be made to the
62
person entitled to the payment in order to avoid incurring a
liability to fines, interest or penalties in respect of late
payment.
6.2 If any payment required to be made by the Vendor under this Deed is not
made by the due date, ascertained in accordance with CLAUSE 6.1, such
payment will bear interest from the due date for payment at the annual
rate of one per cent above the base lending rate from time to time of
Barclays Bank plc, accruing on a daily basis until payment is made,
whether before or after any judgement.
7. CLAIMS PROCEDURE
7.1 The Purchaser will as soon as reasonably practicable give notice of any
Claim to the Vendor, provided that the giving of such notice will not
be a condition precedent to the liability of the Vendor under CLAUSE 2.
7.2 Provided that the Vendor indemnifies the Company and the Purchaser to
the reasonable satisfaction of the Purchaser against all losses, costs,
damages and expenses (including interest on overdue Taxation) which may
be incurred thereby, the Purchaser will procure that the Company, at
the Vendor's cost and expense, takes such action and gives such
information and assistance in connection with its Taxation affairs as
the Vendor may reasonably and promptly request to dispute, appeal
against, settle or compromise any Claim, including, but not limited to:
7.2.1 applying to postpone (so far as legally possible) the payment
of any Taxation; and
7.2.2 allowing the Vendor to undertake, at the Vendor's own cost and
expense, the diligent and prudent conduct of the Dispute.
7.3 The Vendor will not without the prior written consent of the Purchaser
(not to be unreasonably withheld or delayed) undertake:-
7.3.1 the transmission of any communication (whether written or
otherwise) to any Taxation Authority;
7.3.2 the appointment of solicitors or other professional advisers
in relation to the Dispute;
7.3.3 the settlement or compromise of the relevant Claim; and
7.3.4 the agreement of any matter which is likely to increase the
amount of the relevant Claim or any future Liability to
Taxation.
63
7.4 The Vendor will promptly and fully inform the Purchaser of all matters
relating to any Dispute conducted by or at the request of the Vendor
and will provide the Purchaser at the Vendor's cost and expense with
copies of all correspondence and other documents relating thereto.
7.5 Without prejudice to the liability of the Vendor under this Deed:
7.5.1 the Purchaser will not be obliged to procure that the Company
appeals against any assessment to or demand for Taxation
unless within fifteen Business Days of the Purchaser giving
notice thereof to the Vendor in accordance with CLAUSE 7.1,
the Vendor has given notice to the Purchaser to do so or if
any period prescribed by any legislation relating to Taxation
for the making of an appeal against the Taxation Assessment in
question has expired or if the Vendor is unable to pay its
debts as they fall due; and
7.5.2 the Purchaser will not be obliged to prevent the Company from
making a payment of Taxation at the time necessary to avoid
incurring any fine, penalty, surcharge, interest or other
imposition in respect of any unpaid Taxation; and
7.5.3 the Purchaser will not be obliged to procure that the Company
takes any action under CLAUSE 7.2 which involves contesting
any assessment to Taxation before any court or other appellate
body (excluding the authority or body in question) unless the
Vendor furnishes the Company with a written opinion of tax
counsel of at least ten years' call to the effect that it is
reasonable to pursue an appeal against the assessment in
question.
8. TIME LIMIT
8.1 The Vendor will not be liable under CLAUSE 2 in respect of a Liability
to Taxation or other liability under CLAUSE 2.5 unless within seven
years after Completion the Purchaser has given notice to the Vendor of
any Claim whatsoever relating to such Liability to Taxation.
8.2 The time limit in CLAUSE 8.1 will not apply in any case involving
dishonest, fraudulent or negligent conduct on the part of the Vendor.
9. SAVINGS
9.1 If (at the Vendor's request and expense) the Auditors determine that
the Company has obtained a Saving, the Purchaser will as soon as
reasonably practicable thereafter repay to the Vendor the lesser of:
64
9.1.1 the amount of the Saving (as determined by the Auditors); and
9.1.2 the amount paid by the Vendor under CLAUSE 2 in respect of the
Liability to Taxation which gave rise to the Saving less any
part of that amount previously repaid to the Vendor under any
provision of this Agreement or otherwise.
9.2 The Company will not obtain a Saving until the last date upon which it
would have been obliged to make the actual payment of corporation tax
which has been reduced or eliminated in order to avoid incurring
interest thereon.
9.3 In determining whether the Company has obtained a Saving, the Auditors
will act as experts and not as arbitrators and their determination will
(in the absence of manifest error) be conclusive and binding on the
parties.
10. RECOVERY FROM OTHER PERSONS
10.1 If the Company or the Purchaser recovers from any other person
(including any Taxation Authority) any amount which is referable to a
Liability to Taxation of the Company in respect of which the Vendor has
made a payment under CLAUSE 2, the Purchaser will repay to the Vendor
the lesser of:
10.1.1 the amount so recovered (less any losses, costs, damages,
expenses and Taxation chargeable on the Company in respect of
interest or repayment supplement incurred by the Company, or
the Purchaser as a result of the recovery of that amount); and
10.1.2 the amount paid by the Vendor under CLAUSE 2 in respect of the
Liability to Taxation or other liability in question less any
part of such amount previously repaid to the Vendor under any
provision of this Agreement or otherwise together with any
interest or repayment supplement received by the Company in
respect of the amount recovered.
10.2 If the Purchaser becomes aware that the Company is entitled to recover
any amount mentioned in CLAUSE 10.1, the Purchaser will as soon as
reasonably practicable give notice of that fact to the Vendor and
provided that the Vendor indemnifies the Company and the Purchaser to
the reasonable satisfaction of the Purchaser against all losses, costs,
damages and expenses which may be incurred thereby, the Purchaser will
procure that the Company, at the Vendor's cost and expense, takes such
action as the Vendor may reasonably and promptly request to effect such
recovery.
11. OVER-PROVISIONS
65
11.1 If (at the request and expense of the Vendor) the Auditors certify that
any provision in the Balance Sheet for any liability for Taxation
(excluding any provision for deferred tax) has proved to be an
over-provision, the Purchaser shall as soon as reasonably practicable
thereafter repay to the Vendor the lesser of:-
11.1.1 The amount over-provided (as certified by the Auditors); and
11.1.2 The aggregate amount (if any) paid by the Vendor under CLAUSE
2 prior to the certification of the over-provision less any
part of that amount previously repaid to the Vendor under any
provision of this Agreement or otherwise.
11.2 If upon certification of an over-provision by the Auditors pursuant to
CLAUSE 11.1 the amount mentioned in CLAUSE 11.1.1 exceeds the amount
mentioned in CLAUSE 11.1.2 the amount of the excess shall be set
against (and so shall reduce or eliminate) any liability of the
Covenantors under CLAUSE 2 which arises after such certification, as
and when such liability arises.
11.3 Upon the Company or the Purchaser becoming aware that there has or may
have been an over-provision within the meaning of CLAUSE 11.1, the
Purchaser shall as soon as reasonably practicable give notice of that
fact to the Vendor.
11.4 In certifying any over-provision pursuant to CLAUSE 11.1, the Auditors
shall act as experts and not as arbitrators and their certificate shall
(in the absence of manifest error) be conclusive and binding on all
concerned.
12. PURCHASER'S OBLIGATIONS
12.1 The Purchaser covenants with the Vendor to pay to the Vendor an amount
equal to any Tax which is assessed on the Vendor, or any company (other
than the Company) of which the Vendor has control, as defined for the
purposes of any relevant legislation under sections 767A or 767AA Taxes
Act, by reason of Taxation assessed on the Company for an accounting
period beginning before Completion being unpaid other than any Taxation
the liability for which falls upon the Vendor pursuant to CLAUSE 2.
12.2 The covenant contained in CLAUSE 12.1 will apply to any reasonable
costs and expenses properly incurred by the Vendor in connection with
any Taxation assessed on the Vendor in relation to which the Purchaser
is liable under CLAUSE 12.1.
12.3 The due date for payment of any amount payable pursuant to CLAUSE 12.1
will be five Business Days before the party assessed under sections
767A or 767AA Taxes Act is obliged to pay the Taxation in question and
any payment not made on or before the due date for payment pursuant to
this clause will carry interest at the rate of one per
66
cent. above the base lending rate of Barclays Bank plc from the due
date to the date of payment.
13. TAX RETURNS
13.1 The Vendor or its duly authorised agents will, at the Company's cost
and expense, prepare all the Taxation returns and computations of the
Company for all accounting periods ended on or before Completion, to
the extent that they have not been prepared before Completion, and
submit them to the Purchaser.
13.2 The Purchaser will procure that the Company causes the returns and
computations mentioned in CLAUSE 13.1 to be authorised, signed and
submitted to the appropriate Taxation Authority without amendment or
with such amendments as the Vendor shall agree provided that the
Purchaser shall not be obliged to procure that the Company take any
action under this clause in relation to any such returns and
computations which are not true and accurate in all material respects.
13.3 The Vendor or its duly authorised agents will, at the Company's cost
and expense, prepare all documentation and deal with all matters
(including correspondence) relating to the returns and computations of
the Company for all accounting periods ended on or before Completion.
13.4 The Purchaser will procure that the Company affords such access to its
books, accounts and records as is necessary and reasonable to enable
the Vendor or its duly authorised agents to prepare the returns and
computations of the Company for all accounting periods ended on or
before Completion and conduct matters relating to them in accordance
with this CLAUSE 13.
13.5 The Vendor will take all reasonable steps to ensure that the returns
and computations of the Company for all accounting periods ended on or
before Completion are prepared and agreed with the appropriate Taxation
Authority as soon as possible.
13.6 Nothing done by the Company or the Vendor or its agents pursuant to
this CLAUSE 13 shall in respect restrict or reduce any rights the
Purchaser may have to make a claim against the Vendor under this Deed.
14. NOTICES
14.1 Any demand, notice or other communication given or made under or in
connection with this Deed will be in writing by prepaid first class
post, by hand or by facsimile.
67
14.2 Any such demand, notice or other communication will, if otherwise given
or made in accordance with this CLAUSE 14, be deemed to have been duly
given or made as follows:
14.2.1 if sent by pre-paid first class post, on the second Business
Day after the date of posting;
14.2.2 if delivered by hand, upon delivery at the address provided
for in this CLAUSE 14; or
14.2.3 if sent by facsimile, on the day of transmission provided that
a confirmatory copy is, on the same Business Day that the
facsimile is transmitted, sent by pre- paid first class post
in the manner provided for in this CLAUSE 14,
provided however that, if it is delivered by hand or sent by facsimile
on a day which is not a Business Day or after 4 p.m. on a Business Day,
it will instead be deemed to have been given or made on the next
Business Day.
14.3 Any such demand, notice or other communication will, in the case of
service by post or delivery by hand, be addressed (subject as provided
in this CLAUSE 14) to the recipient at the recipient's address stated
in the Agreement or at such other address as may from time to time be
notified in writing by the recipient to the sender as being the
recipient's address for service, provided that in the case of a company
it may instead (at the option of the sender) be addressed to its
registered office for the time being.
14.4 Any such demand, notice or other communication will, in the case of
service by facsimile, be sent to the recipient using a facsimile number
then used by the recipient at an address which (in accordance with such
provisions) could have been used for service by post.
14.5 The provisions of this CLAUSE 14 will not apply, in the case of service
of court documents, to the extent that such provisions are inconsistent
with Part 6 of the Civil Procedure Rules.
15. GENERAL
15.1 All payments by the Vendor under this Deed will be treated so far as
legally possible as repayments by the Vendor of the consideration paid
for the Shares pursuant to this Agreement, provided that this CLAUSE
15.1 will not operate in any way to limit the liability of the Vendor
under this Deed.
15.2 This Deed will be binding on and will enure for the benefit of each
party's successors and assigns (as the case may be).
68
15.3 If any term of this Deed is held to be illegal, invalid or
unenforceable, in whole or in part, under any rule of law or enactment,
such term will to that extent be deemed not to form part of this Deed,
but the enforceability of the remainder of this Deed will not be
affected.
15.4 Failure or delay by any party in exercising any right or remedy under
this Deed will not in any circumstances operate as a waiver of it, nor
will any single or partial exercise of any right or remedy in any
circumstances preclude any other or further exercise of it or the
exercise of any other right or remedy.
15.5 Any waiver of any breach of, or any default under, any of the terms of
this Deed will not be deemed a waiver of any subsequent breach or
default and will in no way affect the other terms of this Deed.
15.6 The parties may release or compromise the liability of, or grant time
or any other indulgence to, any person who is a party to this Deed
without in any way prejudicing or affecting the liability (whether
joint and several or otherwise) of any other person who is a party to
this Deed.
15.7 The headings to the clauses of this Deed will not affect its
construction.
15.8 The rights and remedies expressly provided for by this Deed will not
exclude any rights or remedies provided by law.
15.9 This Deed may be executed in any number of counterparts, and by the
parties on separate counterparts, each of which so executed and
delivered will be an original, but all the counterparts will together
constitute one and the same deed.
15.10 The formation, existence, construction, performance, validity and all
aspects of this Deed or of any term of this Deed shall be governed by
English law. The English Courts shall have jurisdiction to settle any
disputes which may arise out of or in connection with this Deed.
15.11 The parties to this Deed do not intend that any of its terms will be
enforceable by virtue of the Contracts (Rights of Third Parties) Xxx
0000 by any person not a party to it.
THIS DOCUMENT is executed as a deed and delivered on the date stated at the
beginning of this Deed.
Executed as a Deed )
by OMNICARE LIMITED )
acting by XXXXXXX XXXXXXXX and /s/
XXXXXXX XXXXXX )
69
Director
Director/Secretary
Executed as a Deed by XXXXX )
XXXXXX as attorney for, ) /s/
and on behalf of, )
XXXXXXX-XXXXX SQUIBB )
HOLDINGS LIMITED )
In the presence of: )
Witness's Signature: /s/
.....................
Name (print):............................
Occupation:..............................
Address:.................................
.........................................
.........................................
.........................................
70
SCHEDULE 5
LIMITATION OF LIABILITY
1. In this Schedule "claim" means any claim which would (but for the
provisions of this Schedule) be capable of being made against the
Vendor in respect of any liability for breach of the Warranties and
covenants given under clause 4 and Schedule 3 and (where specifically
referred to) the Tax Covenant.
2. Notwithstanding the provisions of this Agreement (but subject to
paragraph 3):
2.1 the aggregate liability of the Vendor in respect of all claims
(including all claims under the Tax Covenant) shall be limited to the
consideration received by the Vendor pursuant to this Agreement;
2.2 the Vendor will be under no liability in respect of any claim
(including claims under the Tax Covenant) except for those relating to
clause 2.4 of the Tax Covenant where the amount for which the Vendor
would be liable under such claim is less than (pound)10,000;
2.3 the Vendor will be under no liability in respect of any claim (of or
greater than the amount specified in paragraph 2.2) (including claims
under the Tax Covenant except for those relating to clause 2.4 of the
Tax Covenant) unless the amount of its liability in respect of such
claim is (when aggregated with their liability in respect of any other
such claim or claims made by the Purchaser) in excess of
(pound)300,000;
2.4 the Vendor will be under no liability in respect of any claim unless
written particulars of any bona fide claim (whether actual or
contingent) (giving full details of the specific matter in respect of
which such claim is made) shall have been given by the Purchaser in
good faith to the Vendor within 12 months from the Completion Date or
(in the case only of any claim relating to taxation) seven years from
the Completion and unless either in the case of a liability which is
actual legal proceedings in respect of such claim are commenced and
served upon the Vendor within six months after such written particulars
have been given to the Vendor or in the case of a claim for a liability
which is contingent only, legal proceedings in respect of such claim
are commenced and served upon the Vendor within six months of the claim
ceasing to be contingent and becoming actual;
2.5 the Vendor will have no liability in respect of any claim:
71
2.5.1 to the extent that it arises or is increased as a result of an
increase in rates of taxation after Completion, or the passing
of any legislation (or making of any subordinate legislation)
with retrospective effect, or any provision or reserve in the
Accounts being insufficient by reason of any increase in rates
of taxation after Completion;
2.5.2 to the extent that it relates to any loss for which the
Purchaser or any Group Member is indemnified by insurance or
for which it would have been so indemnified if at the relevant
time there had been maintained valid and adequate insurance
cover of a type in force in relation to any Group Member at
the date of this Agreement;
2.5.3 to the extent that it relates to
2.5.3.1 any matter specifically provided for, or specifically included
as a liability or specifically disclosed, in the Accounts;
2.5.3.2 any liability for taxation which would not have arisen but for
any event, fact or circumstance whatsoever in the ordinary
course of business of any Group Member after the Accounts
Date, and on or before Completion and for the purposes of this
paragraph 2.5.3.2 none of the circumstances set out in
paragraph 4.2 of Schedule 4 will be regarded as an event, fact
or circumstance in the ordinary course of business of a Group
Member.
2.5.4 to the extent that it arises as a result of any change in the
accounting policy or practice or in the accounting reference
date of any Group Member after Completion (other than a change
required to comply with generally accepted accounting
principles in the United Kingdom or to comply with law);
2.6 where the Purchaser or any Group Member is entitled to recover from
some other person any sum in respect of any matter or event which could
give rise to a claim, the Purchaser will (or will procure that the
relevant Group Member will) take all appropriate steps which in the
reasonable opinion of the Purchaser are necessary to recover that sum
where practicable before making such claim, and any sum recovered (less
all reasonable costs and expenses incurred and any tax chargeable on
the receipt of the sum recovered) will reduce the amount of such claim
(and, in the event of the recovery being delayed until after such claim
has been satisfied by the Vendor, the sum recovered will be paid to the
Vendor, after deduction of all reasonable costs,
72
charges, tax chargeable on the recipient of the sum recovered in
respect of the receipt of that sum and expenses of the recovery);
2.7 payment of any claim shall to the extent of such payment satisfy and
preclude any other claim which is capable of being made in respect of
the same subject matter;
2.8 in assessing any damages or compensation payable by the Vendor the
value of the Group as at Completion shall not be taken as exceeding the
Consideration.
3. The provisions of paragraphs 2.1-2.8 (inclusive) will not apply in
respect of any claim to the extent that the claim arises as a
consequence of fraud or wilful misrepresentation by the Vendor.
4. Upon the Purchaser becoming aware that matters have arisen which will
or are likely to give rise to a claim, the Purchaser will:
4.1 as soon as reasonably practicable notify the Vendor in writing of the
potential claim and of the matters which will or are likely to give
rise to such claim;
4.2 not make any admission of liability, agreement or compromise with any
person, body or authority in relation to the potential claim without
prior consultation with the Vendor;
4.3 subject to the Vendor indemnifying the Purchaser and/or the relevant
Group Member to their reasonable satisfaction against any liability,
costs, damages or expenses due to third parties take such action and
give such information and access to personnel, premises, chattels,
documents and records to the Vendor and their professional advisers as
the Vendor may reasonably request and the Vendor shall be entitled to
require the Purchaser to take such action and give such information and
assistance in order to avoid, dispute, resist, mitigate, settle,
compromise, defend or appeal any claim in respect thereof or
adjudication with respect thereto.
5. Nothing herein shall in any way diminish the Purchaser's or the
relevant Group Member's common law duty to mitigate its loss.
6. If any potential claim shall arise by reason of a liability of any
Group Member which is contingent only, then the Vendor shall not be
under any obligation to make any payment in respect of such claim until
such time as the contingent liability ceases to be contingent and
becomes actual.
7. The Purchaser confirms to the Vendor that it is not aware at the date
of this Agreement, after discussion with its accountants and
solicitors, of any matter or thing which in its reasonable opinion will
or may give rise to any claim.
73
8. The provisions of this Schedule apply notwithstanding any other
provision of this Agreement or its Schedules to the contrary and will
not cease to have effect in consequence of any rescission or
termination by the Purchaser of any other provisions of this Agreement
9. Any payment made by the Vendor in respect of any claim under the
Warranties or under the Tax Covenant or other claim will be treated, so
far as possible, as repayments by the Vendor of the consideration paid
for the Shares pursuant to this Agreement.
74
SCHEDULE 6
LIST OF SPONSORSHIP ARRANGEMENTS
AMCARE LIMITED
1. Chase Farm Hospital NHS Trust
2. Worcester Royal Infirmary NHS Trust
3. Royal Devon and Exeter Health Care NHS Health Trust
4. Royal Devon and Exeter Health Care NHS Health Trust (2)
5. Royal Wolverhampton Hospitals NHS Trust
6. South Tees Hospitals NHS Trust (extended until 31 August 2001)
7. South Tees Community and Mental Health NHS Trust
8. Scarborough and North East Yorkshire Healthcare NHS Trust
9. Scarborough and North East Yorkshire Healthcare NHS Trust (2)
10. Hartlepool and Xxxx Xxxxxx XXX Xxxxx
00. Xxxxx Xxxx Xxxxx NHS Trust
12. University Hospital, Birmingham
75
SCHEDULE 6
THE LISTINGS
-------------------- ---------------------- ------------------------- ------------------------- ----------------------------
PARTY IN WHOSE HEALTH AUTHORITY PREMISES IN RESPECT OF GOODS AND SERVICES GOODS AND SERVICES
FAVOUR THE LISTING WHICH THE LISTING IS AUTHORISED TO BE REQUIRED TO BE PROVIDED
IS MADE MADE PROVIDED UNDER THIS UNDER THIS LISTING*
LISTING
-------------------- ---------------------- ------------------------- ------------------------- ----------------------------
AMCARE LIMITED SUNDERLAND Amcare House Stoma and Other Stoma and Other Appliances
00 Xxxxxxxx Xxxx Xxxxxxxxxx
Xxxxxxxxxx
XX0 0XX
-------------------- ---------------------- ------------------------- ------------------------- ----------------------------
AMCARE LIMITED SUNDERLAND Xxxx 00X Stoma and Other Stoma and Other Appliances
Xxxxxxx Xxx Xxxxxxxxxx
Xxxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx
XX0 0XX
-------------------- ---------------------- ------------------------- ------------------------- ----------------------------
AMCARE LIMITED MANCHESTER First Floor Stoma Appliances, Stoma Appliances, Elastic
26 Black Friars Street Elastic Hosiery, Hosiery, Trusses, Other
Manchester Trusses, Other Appliances- specified as
X0 0XX Appliances- specified Incontinence Appliances as
as Incontinence listed under part IXB of
Appliances as listed the Drug Tariff
under part IXB of the
Drug Tariff
-------------------- ---------------------- ------------------------- ------------------------- ----------------------------
AMCARE LIMITED NORTH NOTTINGHAMSHIRE Balderton Hall Stoma Appliances, Other Stoma Appliances, Other
South Drive Appliances- specified Appliances- specified as
Balderton as Incontinence Incontinence
Xxxxxx
Xxxxx
XX00 0XX
-------------------- ---------------------- ------------------------- ------------------------- ----------------------------
AMCARE LIMITED NOTTINGHAM Unit 22 Stoma Appliances, Other Stoma Appliances, Other
SGCS Business Park Appliances- specified Appliances- specified as
Technology Drive as Incontinence and Incontinence and Dressings
Beeston Dressings as in Part as in Part IXA of the Drug
Nottingham IXA of the Drug Xxxxxx Xxxxxx
XX0 0XX
-------------------- ---------------------- ------------------------- ------------------------- ----------------------------
AMCARE LIMITED NOTTINGHAM Surgery Stoma Appliances, Other Stoma Appliances, Other
Collington Way Appliances- specified Appliances- specified as
West Bridgford as Incontinence Incontinence
Xxxxxxxxxx XX0 0XX
-------------------- ---------------------- ------------------------- ------------------------- ----------------------------
AMCARE LIMITED LINCOLNSHIRE 00 Xxxxxxx Xxxxx Appliances listed in Appliances listed in the
Claypole the Drug Tariff Drug Tariff sections IX
Newark sections IX A,B and C: A,B and C: including
-------------------- ---------------------- ------------------------- ------------------------- ----------------------------
76
-------------------- ---------------------- ------------------------- ------------------------- ----------------------------
Notts including incontinence, incontinence, stoma and
XX00 0XX stoma and other other appliances.
appliances.
-------------------- ---------------------- ------------------------- ------------------------- ----------------------------
AMCARE LIMITED DYFED POWYS The Old Bakery Stoma Appliances, Stoma Appliances, Elastic
Mount Road Elastic Hosiery, Hosiery, Trusses, Other
Llanfair Careinion Trusses, Other Appliances- specified as
Powys Appliances- specified Incontinence Appliances as
XX00 0XX as Incontinence listed under part IXB of
Appliances as listed the Drug Tariff
under part IXB of the
Drug Tariff
-------------------- ---------------------- ------------------------- ------------------------- ----------------------------
AMCARE LIMITED GLOUCESTERSHIRE Unit 2 Guillimont Stoma Appliances, Stoma Appliances, Elastic
Health Centre Elastic Hosiery, Hosiery, Trusses, Other
Stoke Road Trusses, Other Appliances- specified as
Xxxxxx'x Xxxxx Appliances- specified Incontinence Appliances as
Cheltenham as Incontinence listed under part IXB of
Gloucestershire Appliances as listed the Drug Tariff, Other
GL52 4RP under part IXB of the Services- specified as
Drug Tariff, Other provision of wheelchairs
Services- specified as and mobility aids
provision of
wheelchairs and
mobility aids
-------------------- ---------------------- ------------------------- ------------------------- ----------------------------
AMCARE LIMITED XXXX XXXX 69 Riverside Three Stoma Appliances Stoma Appliances
Sir Xxxxxx Xxxxxxx Road Incontinence and Incontinence and Dressings
Xxxxxx Xxxx Xxxxxx Xxxxxxxxx
Xxxxxx
Xxxx
XX0 0XX
-------------------- ---------------------- ------------------------- ------------------------- ----------------------------
NOVACARE UK LIMITED SHROPSHIRE Xxxx 00 Xxxxxx Xxxxx Stoma and Other Stoma and Other Appliances
Xxxxxxxxxx Xxxxxxxxxx
Xxxxxxx
Xxxxxxxxxx
XX0 0XX
-------------------- ---------------------- ------------------------- ------------------------- ----------------------------
* The Person in whose favour the Listing is made is required to provide from the
Premises in respect of which the relevant Listing is made, all of the Goods
and/or Services which it is authorised to provide from those Premises under that
Listing as are specified in valid prescription(s) presented to it for such Goods
and/or Services
SIGNED by OMNICARE LIMITED )
acting by a director ) /s/
in the presence of: )
Director
Director/secretary
Witness signature:
Executed as a Deed by XXXXX )
XXXXXX as attorney for, ) /s/
and on behalf of, )
XXXXXXX-XXXXX SQUIBB )
HOLDINGS LIMITED )
In the presence of: )
Witness's Signature: /s/
.....................
Name (print):............................
Occupation:..............................
Address:.................................
.........................................
.........................................
.........................................
