EXHIBIT 4.5
THE CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST
IN ACCORDANCE WITH RULE 24B-2 OF THE SECURITIES AND EXCHANGE ACT OF 1934, AS
AMENDED. REDACTED PORTIONS OF THIS EXHIBIT ARE MARKED BY AN ***.
SHARE SALE AND PURCHASE
AGREEMENT
Relating to Ionix
Pharmaceuticals Limited
Dated ____________ 2005
The Sellers (1)
Vernalis PLC (2)
FINAL: 5 JULY 2005
TABLE OF CONTENTS
INTRODUCTION 3
OPERATIVE PROVISIONS 3
1 Definitions 3
2 Sale and purchase of the Shares 12
3 Consideration 12
4 Retained Consideration Shares and Adjustment 13
5 Conditions, Property Costs and Redundancy Costs 15
6 Completion 16
7 Sellers' Warranties 17
8 Principal Warranties and Warranties generally 18
9 Buyer Warranties 18
10 Orderly Market 18
11 Loans and Guarantees 19
12 Protective Covenant 20
13 Announcements 20
14 Confidentiality 21
15 Entire agreement 21
16 Assignment and transfer 22
17 Costs and expenses 22
18 Effect of Completion 22
19 Waiver 22
20 Variation 22
21 Severance 23
22 Further assurance 23
23 Notices 23
24 Wellcome 24
25 Counterparts 25
26 Governing language 25
27 Governing law 25
28 Jurisdiction 25
29 Interpretation 25
30 Rights of third parties 26
31 Execution 26
SCHEDULE 1 27
Part 1: Particulars of the Company 27
Part 2: Shareholders of the Company 27
Part 3: Initial Consideration Shares 27
SCHEDULE 2 28
Part 1: Documents which are to be delivered by the Sellers at
Completion 28
Part 2: Documents which are to be delivered by the Buyer at Completion 28
SCHEDULE 3 29
Part 1: Sellers' Warranties 29
Part 2: Principal Warranties 30
SCHEDULE 4 - Buyer Warranties 45
SCHEDULE 5 47
Part 1: Limitations on Liability under the Principal Warranties 47
Part 2: Limitations on Liability under the Sellers' Warranties and
Buyer Warranties 51
SCHEDULE 6 - Pre Completion Covenants 53
SCHEDULE 7 - Completion Statement 56
Part 1 56
Part 2 56
SCHEDULE 8 - Indemnities 57
Part 1 57
Part 2 58
Part 3 60
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Dated ____________ 2005
PARTIES
(1) THE PERSONS whose names and addresses are set out in Part 2(a) of Schedule
1 (the "Sellers"); and
(2) VERNALIS PLC company number 2304992 whose registered office is at Oakdene
Court, 613 Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx XX00 0XX (the "Buyer").
INTRODUCTION
(A) The Company was incorporated in England and Wales on 16 May 2001 and is
registered under number 04217756 as a private company limited by shares.
(B) The Sellers have agreed to sell to the Buyer, or procure the sale to the
Buyer (as the case may be), and the Buyer has agreed to purchase the Shares
in consideration of the Consideration Price and otherwise in the manner and
on and subject to the terms of this Agreement.
OPERATIVE PROVISIONS
1 DEFINITIONS
In this Agreement, except where a different interpretation is otherwise
specifically required in the context, the words and expressions set out
below shall have the following meanings:
Accounts the draft form of balance sheet as at the
Accounts Date, and the draft form of profit and
loss account for the Financial Year ended on
the Accounts Date of the Company, together with
the notes, reports, statements (including cash
flow statements, if applicable) and other
documents which are required by law to be
annexed to such accounts, in each case to be
audited and delivered at Completion in
accordance with Schedule 2
Accounts Date 31 December 2004
Accounts Standards in relation to the accounts of any body
corporate, the applicable requirements of the
Companies Acts 1985 and 1989, together with
accounting principles, standards and practices
which are generally accepted in the United
Kingdom, in each case as at the date of the
relevant accounts or otherwise applicable at
the relevant time or at the date of Completion
regarding the preparation of the Completion
Statement
Affiliate in relation to any body corporate (whether or
not registered in the United Kingdom), any
holding company or subsidiary of such body
corporate or any subsidiary of a holding
company of such body corporate in each case
from time to time
this Agreement this agreement including the Introduction and
the Schedules
Ancillary Claim a Property Claim and/or a Redundancy Claim, as
the case may be
3
Apax together Apax Europe V - A, L.P., Apax Europe V
- B, L.P., Apax Europe V - C GmbH & Co. KG,
Apax Europe V - D, L.P., Apax Europe V - E,
L.P., Apax Europe V - F, C.V., Apax Europe V -
G, C.V., Apax Europe V - 1, L.P. and Apax
Europe V - 2, L.P.
Apax Loan the convertible loan option agreement dated 10
May 2004 between the Company and Apax, as
amended on 23 June 2005
Articles of Association the articles of association of the Company
adopted on 10 May 2004
Budget the budget and income and expenditure forecasts
in the agreed form of the Company for the
months of June, July and August, 2005
Business the business of the Company as carried on at
the date hereof
Business Day a day other than a Saturday, Sunday or public
holiday in England and Wales
Buyer Capacity Claim a claim for breach of the Buyer Warranties
Buyer's Group the Buyer, any subsidiary of the Buyer, any
holding company of the Buyer and any subsidiary
of any holding company of the Buyer, in each
case from time to time, and member of the
Buyer's Group shall be construed accordingly
Buyer's Solicitors Xxxxx & Xxxxx LLP, Xxx Xxx Xxxxxx, Xxxxxx XX0X
0XX
Buyer's Sponsor XX Xxxxxx Cazenove Limited of 00 Xxxxxxxx,
Xxxxxx XX0X 0XX or such other sponsor as
appointed by the Buyer at the relevant time
Buyer Warranties the warranties given by the Buyer in clause 9
and Schedule 4 and each buyer warranty
statement shall be a "Buyer Warranty"
Capacity Claim a Buyer Capacity Claim or a Sellers' Capacity
Claim
Claim any Principal Warranty Claim, Redundancy Claim,
Property Claim, Title Claim and any Seller
Capacity Claim made in accordance with the
terms of this Agreement and each such claim
shall be a "Claim"
Company Ionix Pharmaceuticals Limited, short
particulars of which are set out in Part 1 of
Schedule 1
Completion completion of the sale and purchase of the
Shares in accordance with the terms of clause 6
Completion Statement the completion statement as finally agreed or
determined in accordance with the provisions of
Schedule 7
Conditions the conditions to Completion set out in clause 5
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Confidential Information all technical, financial, commercial and other
information of a confidential nature relating
to the Business, including without limitation,
trade secrets, know-how, inventions, product
information and unpublished information
relating to Intellectual Property, object code
and source code of software, marketing and
business plans, projections, current or
projected plans or internal affairs of the
Company, secret or confidential information,
current and/or prospective suppliers and
customers (including any customer or supplier
lists) and any other person who has had
material dealings with them
Consideration Price the consideration price for the Shares stated
in clause 3.1
Consultants those individuals who are providing services to
the Company under an agreement which is not a
contract of employment with the Company
including, in particular, where the individual
acts as a consultant or is an independent
contractor on secondment, and "Consultant"
shall mean any one of them
Dangerous Substance any natural or artificial substance or thing
(whether in the form of a solid, liquid, gas,
vapour or any other form), which is:
(a) capable (alone or in combination) of
causing harm to man or any other living
organism, or capable of damaging the
Environment or public health or welfare,
including but not limited to controlled,
special hazardous, polluting, toxic or
dangerous substances and/or waste and/or
radiation, electricity or heat; and/or
(b) regulated by or under Environmental Law
Deed of Assignment a deed of assignment of the Lease together with
an agreement for the sale and purchase of the
Lease, a licence to assign the Lease and a
notice of assignment of the Lease, in each case
in the agreed form
Deferred Consideration the sum of L5,000,000
Determined Claim (a) a Principal Warranty Claim that has been
determined in accordance with paragraph
1.1 of Part 1 of Schedule 5;
(b) a Sellers' Capacity Claim that has been
determined in accordance with paragraph
1.2 of Part 2 of Schedule 5;
(c) an Ancillary Claim that has been
determined in accordance with paragraph
1.3 of Part 3 of Schedule 8; and
(d) a Title Claim that has been determined in
accordance with paragraph 1.3 of Part 3 of
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Schedule 8;
Directors the persons specified as directors of the
Company in Part 1 of Schedule 1 (the expression
"Director" meaning any of them)
Disclosure Documents the documents attached to the Disclosure Letter
as listed in the schedule annexed to the
Disclosure Letter
Disclosure Letter a letter in the agreed form from the Warrantor
to the Buyer, to be dated the same date as this
Agreement
Employees those persons (including Directors) who are
employed by the Company as at the date of this
Agreement, whose names appear in the list of
employees included in the Disclosure Documents
Encumbrance any interest or equity of any person (including
any right to acquire, option or right of
pre-emption) or any mortgage, charge, pledge,
lien, assignment, hypothecation, security
interest, title retention or any licence,
option, security agreement or arrangement, or
any agreement to create any of the foregoing
Environment air (including air within buildings or other
natural or man-made structures whether above or
below ground), water (including surface waters,
underground waters, groundwater, coastal and
inland waters and water within any natural or
man-made structures), land (including soil and
river beds under any water, surface land and
sub-surface land), buildings, structures,
enclosures or other constructions, flora,
fauna, man and any other living organism
Environmental Law any and all laws, statutes, secondary and
subordinate legislation, by-laws, regulations,
directives, rules, codes of practice,
circulars, guidance and the like, company
environmental plans, codes of conduct, common
law, notices, judgments, orders, decisions and
interpretations of any laws by any Regulatory
Authority, international and EU treaties and
regulations, concerning the protection of the
Environment or human health and welfare or
conditions in, or in the vicinity of, the
workplace or the generation, transportation,
storage, treatment, disposal or presence of any
Dangerous Substance
Environmental Licence any permit, authorisation, licence (including
statutory licence), consent, permission,
exemption, registration or other approval
required under or in relation to any
Environmental Law
Estimated Completion Statement a statement prepared by the Sellers in the same
style and layout and using the same policies
and practices as the statement contained in
Part 2 of Schedule 7 and delivered to the Buyer
on the Business Day prior to Completion
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Estimated Liability in respect of any Claim which has not become a
Determined Claim by the end of the Initial
Claim Period, such estimated amount as is
agreed or determined in accordance with either
clause 4.2 or 4.3
Estimated Net Cash the amount of the Net Cash as at Completion as
estimated in the Estimated Completion Statement
External Cost any category of expenditure by the Company
other than an Internal Cost
Final Issue Date as regards each Claim, for which Estimated
Liability has been agreed or determined in
accordance with either clause 4.2 or 4.3, the
third Business Day following the date on which
such Claim becomes a Determined Claim (if such
date is later than the Second Issue Date)
Final Net Cash the amount of the Net Cash at Completion as
determined in accordance with Schedule 7
Financial Year a financial year as determined in accordance
with section 223 of the Companies Xxx 0000
First Issue Date the third Business Day following the first
anniversary of the date of Completion
FSMA the Financial Services and Markets Xxx 0000
Independent Accountants such firm of chartered accountants as the
Sellers and the Buyer may agree in writing or
failing such agreement as shall be appointed on
the application of the Buyer or the Sellers by
the President of the Institute of Chartered
Accountants in England and Wales for the time
being
Initial Claim Period the period of 12 months following the date of
Completion
Initial Consideration the sum of L11,333,334.32 to be satisfied by
the issue of the Initial Consideration Shares
and the payment of L1 in accordance with
clause 3
Initial Consideration Shares 17,847,769 Ordinary Shares, being such number
of Ordinary Shares as shall at the Issue Price
have an aggregate value of L11,333,333.32
Intellectual Property patents, trade marks, service marks, registered
designs, trade names, business names, domain
names, rights in designs, copyright, computer
software and database rights, rights in
know-how and other intellectual property rights
whether registered or unregistered and
including applications for the grant of any of
the foregoing
Internal Cost any category of expenditure which falls to be
treated as an internal cost of the Company for
the purposes of preparing the Management
Accounts
Issue Price 63.5p per Ordinary Share, being the average of
the closing middle market prices of an Ordinary
Share as shown in the London Stock Exchange
Daily Official List (or in any successor
publication) on the five dealing days up to and
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including the dealing day prior to the date of
this Agreement
ITEPA the Income Tax (Earnings and Xxxxxxxx) Xxx 0000
Lease the underlease of the Property dated 4
September 2003 between the Company and Trinity
College (CSP) Limited together with all
supplemental documents to that lease listed in
the Disclosure Letter (other than the Deed of
Assignment)
Liabilities all amounts owing by the Company at Completion
Listing Rules the prospectus rules, listing rules and
disclosure rules made by the United Kingdom
Listing Authority as the competent authority
pursuant to Part VI of FSMA in effect as at
Completion, First Issue Date, Second Issue Date
or Final Issue Date (as the case may be) and
including any guidance or guidance manual
issued by the United Kingdom Listing Authority
from time to time relating to or connected with
those rules
Long Stop Date midnight on 4 August 2005
Management Accounts the management accounts of the Company for the
period of 5 months from the Accounts Date
Material Adverse Change means any event or occurrence arising or
occurring between the date of this Agreement
and Completion which was not taken into account
in preparation of the Budget or is not
permitted pursuant to paragraph 2.1(a) of
Schedule 6 and which is materially adverse to
the:
(a) assets that are to remain in the Company
following Completion (excluding for this
purpose those assets that are to be
transferred by the Company pursuant to the
terms of the Deed of Assignment); or
(b) financial condition of the Company (when
compared to the Budget);
in each case (excluding any material adverse
event, circumstance, effect, occurrence or
state of affairs in financial, banking, capital
markets or general economic conditions or that
has a similar impact on any business that is
similar to the Business) it being acknowledged
by the parties that any matters arising from
the proposed programme of redundancy (including
the Redundancy Costs) and/or arising in respect
of any of the Employees (including without
limitation, the resignation or acceptance of
redundancy by any of the Employees) or the
proposed assignment of the Property (including
the Property Costs and proposed re-location of
equipment and moveable assets and equipment
located at the Property prior to Completion) or
any matters undertaken with the prior written
consent of the Buyer pursuant to paragraph 2 of
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Schedule 6 shall not constitute a Material
Adverse Change for the purpose of this Agreement
Minority Shareholders those Other Members who have not signed in
person the stock transfer forms in respect of
the transfer of their Shares to the Buyer
pursuant to this Agreement and any person
claiming to be entitled to any interest in such
Shares
Minority Shareholder Claim any claim brought by a Minority Shareholder
against either the Buyer or the Company in
respect of:
(a) the implementation by the Company of the
provisions of Articles 2.4 and 6 of the
Articles of Association in respect of the
transfer of Shares pursuant to this
Agreement; or
(b) the transfer of such Minority
Shareholder's Shares by an attorney acting
under power of attorney
Net Cash the amount of the cash, cash equivalents and
certain debtors of the Company (including
Residual Cash and RB Debts) less the
Liabilities, in each case as determined in
accordance with Schedule 7
Non-Disclosable Information all information (including but not limited to
Confidential Information) which relates to:
(a) the Company;
(b) any of the Sellers and/or their respective
Affiliates;
(c) any aspect of the Business;
(d) the provisions of this Agreement;
(e) the negotiations relating to this
Agreement;
(f) the subject matter of this Agreement; or
(g) the Buyer and any of its Affiliates from
time to time
Ordinary Shares ordinary shares of 5 xxxxx each in the capital
of the Buyer
Other Members the persons whose names and addresses are set
out in Part 2(b) of Schedule 1
Pensionable Employee a director or employee of the Company
Principal Warranties the warranties given by the Warrantor in clause
8 and Part 2 of Schedule 3 and each such
warranty statement shall be a "Principal
Warranty"
Principal Warranty Claim a claim for breach of the Principal Warranties
Property the leasehold property at Unit 418, Phase VI
Xxxxxxxxx Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxxx
XX0 0XX
Property Claim a claim in respect of Property Costs under the
indemnity set
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out in paragraph 1 of part 2 of Schedule 8
Property Costs all costs and liabilities in connection with
the Property, including without limitation
business rates, property insurance, property
maintenance, equipment maintenance, utilities,
maintenance costs related to the fixed assets
and equipment to be divested to the landlord
upon termination of the Lease, and all costs in
connection with the termination of the Lease
RB Contract the contract relating to intranasal
buprenorphine dated 22 February 2005 between
the Company and Reckitt Benckiser Healthcare
(UK) Limited
RB Debts any amount owed at Completion by Reckitt
Benckiser Healthcare (UK) Limited to the
Company under the RB Contract in reimbursement
of money paid by the Company to Archimedes
Development Limited for services rendered prior
to Completion
Redundancy Claim a claim in respect of Redundancy Costs under
the indemnity set out in paragraph 1 of part 2
of Schedule 8
Redundancy Costs any liabilities, payment, award, compensation,
fine, loss, order, penalty, payment by way of
settlement and/or costs and expenses incurred
by the Company in connection with a claim
(including reasonable legal costs and expenses)
arising out of or in relation to the
termination of employment of any Redundant
Employee, including (i) any liabilities arising
as a result of any failure to comply with the
requirements of section 188 of the Trade Union
and Labour Relations (Consolidation) Xxx 0000
and (ii) any sum payable following the date of
Completion to or in connection with any
Redundant Employee in respect of his or her
employment
Redundant Employees the person named in Disclosure Document
3.12.12.02 (as referred to in paragraph 3.A.8
of the Disclosure Letter) and those Employees
whose positions are made redundant by the
Company with the agreement of the Buyer
Regulatory Authority any court, authority, agency, department
(including but not limited to any government
department or agency) or other person or legal
entity having authority and/or jurisdiction in
respect of Environmental Laws
Relevant Land any land now or at any time owned, used,
occupied, leased or controlled by the Company
Relevant Proportions ***% for Apax and ***% for Wellcome Trust
Residual Cash cash and cash equivalents of the Company at the
date of Completion, but if the Milestone
Payment payable on the first dose administered
in the first Phase II Clinical Trial for
IX-1003 (as such terms are defined in the RB
Contract) pursuant to clause 7.1 of the RB
Contract has been paid
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then such Milestone Payment shall be deducted
from Residual Cash, as set out in the
Completion Statement
Retained Consideration the sum of L1,166,667.08 to be satisfied by
the issue and allotment of the Retained
Consideration Shares in accordance with and
subject to clauses 3 and 4 and Schedules 5
and 8
Retained Consideration Shares 1,837,271 Ordinary Shares, being such number
of Ordinary Shares as shall at the Issue Price
have an aggregate value equal to the Retained
Consideration
Retirement Benefit any benefits payable by reference to reaching
or expecting to reach retirement or a
particular age or payable by reason of serious
ill-health, incapacity or death and any other
retirement benefit with the meaning of section
255 of the Pensions Xxx 0000
Second Issue Date the third Business Day following the date
falling 13 months following the date of
Completion
Sellers' Capacity Claim a Claim for breach of the Sellers' Warranties
Sellers' Warranties the warranties given severally by the Sellers
in clause 7 and Part 1 of Schedule 3 and each
such warranty statement shall be a "Sellers'
Warranty"
Shares the entire issued share capital of the Company
as at Completion, including any shares issued
to Apax on conversion of the Apax Loan, as set
out in Schedule 1, each such share being a
"Share" and having the those rights attributed
to them in the Articles of Association
Short Form Agreement the agreement in the agreed form to be executed
by the parties at Completion and filed with
form 88(2) at Companies House
Taxation all forms of taxation, duties, rates, levies,
contributions, withholdings, deductions,
liabilities to account, charges and imposts in
the nature of Taxation whether imposed in the
United Kingdom or elsewhere in the world, and
any interest, penalty, surcharge or fine
relating thereto
Taxes Xxx 0000 the Income and Corporation Taxes Xxx 0000
Taxing Authority H M Revenue & Customs and any other
governmental, state, federal, provincial, local
governmental or municipal authority, body or
official competent to impost, administer or
collect any Taxation and whether of the United
Kingdom or elsewhere in the world
The Wellcome Trust Limited The Wellcome Trust Limited (Company Number
2711000) whose Registered Office is at 000
Xxxxxx Xxxx, Xxxxxx, XX0 0XX
Title Claim means a claim by the Buyer under paragraph 1 of
part 1 of Schedule 8
VAT Value Added Tax
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Warrantor Xxxxxx Xxxxx Xxxxxxx of ***
Warranties the Principal Warranties and the Sellers'
Warranties and each of the Principal Warranties
and the Sellers' Warranties shall be a
"Warranty"
Warranty Claim Limit L***
Warranty Claim Ratio a ratio of *** (Retained Consideration Shares:
Deferred Consideration)
Wellcome Trust the Wellcome Trust a Registered Charity, Number
210183, also of 000 Xxxxxx Xxxx, Xxxxxx, XX0
0XX acting by its trustee The Wellcome Trust
Limited
2 SALE AND PURCHASE OF THE SHARES
2.1 Subject to the Conditions being satisfied or, where applicable, waived,
each of the Sellers shall sell free from all Encumbrances and with effect
from Completion, and the Buyer shall purchase all of the Shares held by
them together with all rights attaching to them at Completion. Without
limitation to the foregoing, the Sellers shall jointly procure the delivery
at Completion to the Buyer of duly executed stock transfer forms in respect
of all of the Shares held by the Other Members together with, where
relevant, copies of the authority under which such stock transfer forms
were executed. Title to the Shares shall transfer pursuant to the Short
Form Agreement.
2.2 The Buyer shall not be obliged to complete the purchase of any of the
Shares unless the purchase and/or transfer of all the Shares is completed
simultaneously in accordance with this Agreement.
2.3 Each of the Sellers hereby waives and shall procure the waiver by his or
its (as the case may be) nominee(s) of any and all rights of pre-emption
over the Shares which he or it or they (as the case may be) has or have
conferred either by the Articles of Association or other constitutional
documents of the Company or in any other way necessary to effect the sale
of the Shares to the Buyer pursuant to this Agreement.
3 CONSIDERATION
3.1 The Consideration Price for the sale of the Shares shall (subject to
adjustment as provided in this Agreement) be the Initial Consideration, the
Retained Consideration and the Deferred Consideration.
3.2 The Initial Consideration shall be satisfied by:
(a) the allotment and issue of the Initial Consideration Shares, credited
as paid in full, by the Buyer to Apax and Wellcome Trust or their
respective nominees in the Relevant Proportions on Completion (as
shown in the relevant columns in the table set out in Part 3 of
Schedule 1); and
(b) the payment of the aggregate sum of L1 to Apax (or, to the extent
required by article 6.4 of the Articles of Association, the Company)
for all of the Shares held by the Warrantor and the Other Members.
3.3 The Retained Consideration shall be satisfied by the allotment and issue of
the Retained Consideration Shares, credited as paid in full, by the Buyer
to Apax and Wellcome Trust or their respective nominees in the Relevant
Proportions in accordance with and subject to the provisions of clause 4
and Schedules 5 and 8.
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3.4 For the purposes of clauses 3.2 and 3.3, each of the Initial Consideration
Shares and the Retained Consideration Shares shall rank pari passu in all
respects with the Ordinary Shares in issue at the date of allotment, save
that they shall not rank for any dividend or other distribution declared
made or paid before, or by reference to a record date before such date.
3.5 The Buyer shall be entitled to elect to satisfy its obligation to allot and
issue Initial Consideration Shares and/or Retained Consideration Shares
pursuant to clauses 3.2 and 3.3 by instead paying a proportion of such
Initial Consideration or Retained Consideration calculated at the Issue
Price in cash to Apax and Wellcome Trust in the Relevant Proportions in
circumstances where to allot and issue such Initial Consideration Shares or
Retained Consideration Shares would, in the reasonable opinion of the
Buyer's Sponsor (having consulted with the UK Listing Authority), require
the Buyer to publish listing particulars or a prospectus in accordance with
the Listing Rules.
3.6 Subject to the provisions of clause 4 and Schedules 5 and 8, within five
Business Days following receipt by the Company or an Affiliate of the
Company under the RB Contract of the final Milestone Payment payable on the
first grant of Marketing Authorisation for IX-1003 (as such terms are
defined in the RB Contract) pursuant to clause 7.1 of the RB Contract the
Buyer shall:
(a) notify the Sellers in writing of such receipt; and
(b) make payment of the Deferred Consideration to Apax and Wellcome Trust
in the Relevant Proportions,
but less an amount equal to the aggregate amount of any Determined Claims
and Estimated Liability that has not previously been settled by a reduction
in the number of Retained Consideration Shares issued pursuant to clause 4
(but not (subject to paragraph 3 of Part 2 of Schedule 5) exceeding ***).
3.7 The Sellers acknowledge that the payment of the Consideration Price by the
Buyer in the Relevant Proportions to Apax and Wellcome Trust in accordance
with this Agreement shall satisfy and discharge, and be deemed to satisfy
and discharge, in each case in accordance with the Articles of Association
and any other agreements or other arrangement in place between the Sellers
and the Other Members, any obligation whatsoever (implied or otherwise) on
the Buyer to pay any element of consideration to any legal or beneficial
owner of the Shares (other than Apax and Wellcome Trust) under this
Agreement.
4 RETAINED CONSIDERATION SHARES AND ADJUSTMENT
4.1 Subject to the remainder of this clause 4, clause 3.5 and Schedules 5 and
8, on each of the First Issue Date, Second Issue Date and Final Issue Date
the Buyer shall:
(a) subject only to the UK Listing Authority and the London Stock Exchange
respectively agreeing to admit all such Retained Consideration Shares
to the Official List and to trading on the London Stock Exchange
subject only to allotment, allot and issue to Apax and Wellcome Trust
or their respective nominees in the Relevant Proportions the
appropriate number of Retained Consideration Shares determined in
accordance with the following provisions of this clause 4;
(b) deliver duly executed share certificates in the names of Apax and
Wellcome Trust or their respective nominees for such Retained
Consideration Shares; and
(c) update the register of members of the Buyer with the names of Apax and
Wellcome Trust or their respective nominees entered as being members
of the Buyer in respect of such Retained Consideration Shares.
4.2 Where a Claim has been notified by the Buyer to the Sellers under the
relevant provision of this Agreement at any point during the Initial Claim
Period and such Claim has not become a
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Determined Claim on or before the expiry of such Initial Claim Period, the
Sellers and the Buyer shall agree an estimate of the amount of such claim
(which shall be the Estimated Liability) or, in the absence of such
agreement within 3 days of the First Issue Date, appoint an Expert (in
accordance with Clause 4.3) to determine the Estimated Liability.
4.3 If Clause 4.2 applies and the parties are unable to agree on the amount of
the Estimated Liability within the 3 day period referred to therein, the
Sellers and the Buyer shall within 10 days of the First Issue Date (the
"Appointment Date") agree the appointment of an independent practising
solicitor or barrister admitted in England and Wales for a continuous
period of at least 10 years as at the date of commencement of the
appointment or in the absence of such agreement, such person as may be
nominated (at the request of either party) by the President of The Law
Society of England and Wales (the "Expert") to determine the amount of such
Claim for which the relevant Seller(s) are liable. In making his
determination under this clause the following procedures shall apply:
(a) within 7 days of the Appointment Date each party shall submit to the
Expert (with a copy to the other party) written representations in
support of the Claim (in the case of the Buyer) and the defence to the
Claim (in the case of the Sellers) specifying in reasonable detail the
specific matter(s) in respect of which the Claim or defence is made
and the calculation of the amount which that party considers should be
the Estimated Liability;
(b) within 7 days of receipt of such representations:
(i) either party may submit further written representations to the
Expert (with a copy to the other party) addressing any matters
raised in the other party's representations; and
(ii) the Expert may request further written submissions from either
party to be delivered to the Expert (and copied to the other
party) within that 7 day period;
(c) the Expert shall determine the amount of the Estimated Liability and
notify the parties in writing of such determination by no later than
one month following the end of the Initial Claim Period;
(d) the Expert may impose such additional procedures and/or deadlines as
he considers necessary or expedient in order to determine the amount
of the Estimated Liability within the period referred to in (c) above.
4.4 The Expert shall act as an expert and not as an arbitrator and his
determination shall (for the purposes of determining the Estimated
Liability only) in the absence of manifest error be final and binding on
the Sellers and the Buyer. In the absence of fraud, the Expert shall be
under no liability to any person by reason of his determination. The costs
of the determination, including fees and expenses of the Expert, shall be
borne as the Expert shall determine.
4.5 The number of Retained Consideration Shares to be issued on the First Issue
Date shall be the total number of Retained Consideration Shares, less such
number of Retained Consideration Shares as at the Issue Price have an
aggregate value equivalent to:
(a) the amount of any Determined Claims as at the expiry of the Initial
Claim Period;
(b) the amount of any Claim that has not at the expiry of the Initial
Claim Period become a Determined Claim; and
(c) the amount of Retained Consideration that the Buyer elects to pay in
cash on the First Issue Date in substitution for the relevant number
of Retained Consideration Shares (if any) pursuant to clause 3.5.
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4.6 The number of Retained Consideration Shares to be issued on the Second
Issue Date shall be the balance of any Retained Consideration Shares not
issued on the First Issue Date, less such number of Retained Consideration
Shares as at the Issue Price have an aggregate value equivalent to:
(a) the amount of any Claims which have become Determined Claims since the
expiry of the Initial Claim Period;
(b) the Estimated Liability in respect of any Claims which have not become
Determined Claims at the Second Issue Date; and
(c) the amount of Retained Consideration that the Buyer elects to pay in
cash on the Second Issue Date in substitution for the relevant number
of Retained Consideration Shares (if any) pursuant to clause 3.5.
4.7 Subject to paragraph 3 of Part 2 of Schedule 5 the number of Retained
Consideration Shares to be issued on each Final Issue Date (if any) shall
be such number of the balance (if any) of Retained Consideration Shares not
issued on the First Issue Date or the Second Issue Date that at the Issue
Price have an aggregate value equivalent to the amount by which the
relevant Determined Claim is less than the Estimated Liability of such
Claim (if any). If however the amount of the relevant Determined Claim is
greater than the amount of the Estimated Liability of such Claim, Apax and
Wellcome Trust shall on the relevant Final Issue Date pay to the Buyer the
difference in cash (in the Relevant Proportions) for same day value to an
account notified by the Buyer for that purpose.
4.8 The provisions of Schedule 8 shall apply.
5 CONDITIONS
5.1 The sale and purchase of the Shares is conditional on:
(a) the Sellers giving a Selling Notice to the Company and the Company
giving a Compulsory Sale Notice to the Other Members (as each such
term is defined in the Articles of Association and in each case in
agreed form) and not less than 14 days having elapsed since the giving
of those notices;
(b) notice in the agreed form of the sale and purchase of the Shares being
given to holders of options over the Company's shares, and no holder
of options over, or rights of conversion into, shares in the capital
of the Company having given (and not withdrawn) notice to exercise any
of such options or rights between the date of this Agreement and
Completion (save in connection with the Apax Loan);
(c) the Sellers delivering to the Buyer not less than 2 Business Days
prior to Completion transfers in respect of all the Shares duly
executed by or on behalf of each registered holder in favour of the
Buyer or its nominee as it may direct together with such number of
certificates for the Shares (or such number of indemnities in respect
of the loss thereof in the agreed form) as the Sellers have obtained
(including certificates and/or indemnities from each of the Sellers);
(d) the Apax Loan being converted into *** Shares in accordance with the
terms disclosed in the Disclosure Letter;
(e) the contracts of employment relating to the Redundant Employees being
terminated in accordance with their terms or in accordance with
compromise agreements entered into by those employees in agreed form;
(f) the Lease being assigned in accordance with the Deed of Assignment;
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(g) the UK Listing Authority and the London Stock Exchange respectively
agreeing to admit all the Initial Consideration Shares to the Official
List and to trading on the London Stock Exchange, subject only to
allotment;
(h) no fact or circumstance having occurred prior to Completion which
would amount to a Material Adverse Change;
(i) no notice having been given or received by the Company or the Sellers
to terminate (or indicating an intention to terminate) the RB Contract
and no circumstances having arisen as at Completion (excluding for
this purpose any such circumstances arising from or in connection with
the implementation of this Agreement) giving rise to a right by either
party to terminate the RB Contract (other than by reason of the Buyer
breaching its obligations under the confidentiality agreement between
the Buyer and the Company dated 18 December 2004);
but the Buyer may waive all or any of Conditions (a) to (i) above (either
in whole or in part) at any time by giving notice to the Sellers.
5.2 Each party shall use all reasonable endeavours to procure (so far as it is
so able to procure) that each of the Conditions is satisfied on or before
the Long Stop Date or earlier termination of this Agreement under cluase
5.3.
5.3 If any of the Conditions are not satisfied or waived on or before the Long
Stop Date and the Buyer elects not to complete the purchase of the Shares
all the provisions of this Agreement shall lapse and cease to have effect
except this sub-clause and clauses 1, 5.1, 5.2, 13-17, 19, 20, 23-30
provided that if the Agreement is terminated prior to the Long Stop Date,
neither party shall be liable for any breach of, or failure to comply with,
clauses 5.1 or 5.2 occurring after the earlier of termination and the Long
Stop Date.
6 COMPLETION
6.1 Subject to the provisions of this Agreement, Completion shall take place at
the offices of the Buyer's Solicitors at 8 a.m. on the second Business Day
after the date on which the last of the Conditions in clauses 5.1(a),
5.1(c), 5.1(e) and 5.1(g) is satisfied or waived in accordance with clause
5, provided that the other Conditions have been satisfied or so waived
prior to Completion (or at such other place, at such other time and/or on
such other date as the Buyer and the Sellers may agree).
6.2 Until Completion the provisions of Schedule 6 shall apply.
6.3 At Completion the Sellers and the Buyer shall deliver or cause to be
delivered to the other the items listed in Parts 1 and 2 of Schedule 2
respectively to the extent not already delivered prior to Completion.
6.4 At Completion the Sellers shall procure that a board meeting of the Company
shall be held at which it is resolved that:
(a) approval is given for the registration of the transfers of the Shares
and the entry of the Buyer or its nominee in the register of members
of the Company (subject only to the transfers being represented duly
stamped);
(b) Xxxx Xxxx and Xxxx Xxxxxx are appointed as directors and Xxxx Xxxxxx
as secretary of the Company;
(c) the Company's registered office is changed to Oakdene Court, 000
Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx, XX00 0XX;
(d) the Company's bank mandates are revised in such manner as the Buyer
requires.
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6.5 At Completion, the Buyer shall:
(a) allot and issue to Apax and Wellcome Trust or their respective
nominees in the Relevant Proportions the Initial Consideration Shares
credited as paid in full in accordance with clause 3;
(b) deliver duly executed share certificates in the names of Apax and
Wellcome Trust or their respective nominees for the Initial
Consideration Shares;
(c) update the register of members of the Buyer with the names of Apax and
Wellcome Trust or their respective nominees entered as being members
of the Buyer in respect of the Initial Consideration Shares;
(d) pay the sum of L1 to Apax (or, to the extent required by article 6.4
of the Articles of Association, the Company) in respect of the
consideration to be paid to Other Members and the Warrantor; and
(e) pay an amount of cash equal to the Estimated Net Cash (if a positive
number) into the understated bank account:
Barclays Bank, Corporate Xxxxxxx Xxxxxx, 0-0 Xxxxxxx Xxxxxx,
Xxxxxx, X0X 0XX
Sterling Client A/C No: ***
Sort Code: ***
Ref: ***
6.6 If for any reason the Sellers do not do or procure to be done all those
things set out in clause 6.4 and deliver or cause to be delivered to the
Buyer the items listed in Part 1 of Schedule 2 as contemplated by clause
6.3, the Buyer may elect (in addition and without prejudice to all other
rights or remedies available to it) to fix a new time and date for
Completion.
6.7 Following Completion, the amount of the Final Net Cash shall be agreed or
determined in accordance with Schedule 7.
6.8 If:
(a) the Final Net Cash (if a positive number) exceeds the Estimated Net
Cash, the Buyer shall pay to Apax and Wellcome Trust the difference in
cash (in the Relevant Proportions) as soon as reasonably practicable
and in any event within 5 Business Days of the date the Final Net Cash
is agreed or determined in accordance with Schedule 7; and
(b) the Estimated Net Cash was a positive number and exceeds the Final Net
Cash Apax and Wellcome Trust shall pay to the Buyer the difference in
cash (in the Relevant Proportions) as soon as reasonably practicable
and in any event within 5 Business Days of the date the Final Net Cash
is agreed or determined in accordance with Schedule 7; and
(c) both the Estimated Net Cash and Final Net Cash are negative numbers,
Apax and Wellcome Trust shall pay to the Buyer the amount of the Final
Net Cash (in the Relevant Proportions) as soon as reasonably
practicable and in any event within 5 Business Days of the date the
Final Net Cash is agreed or determined in accordance with Schedule 7.
7 SELLERS' WARRANTIES
7.1 On the date of this Agreement each of the Sellers severally warrant to the
Buyer for itself or himself only in the terms of the Sellers' Warranties
subject to the limitations and qualifications set out in Part 2 of Schedule
5.
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7.2 The Sellers acknowledge that the Buyer has entered into this Agreement in
reliance on the Sellers' Warranties and the Principal Warranties.
8 PRINCIPAL WARRANTIES AND WARRANTIES GENERALLY
8.1 On the date of this Agreement the Warrantor warrants to the Buyer in the
terms of the Principal Warranties subject to:
(a) any matter fairly disclosed in the Disclosure Letter or the Disclosure
Documents; and
(b) the limitations and qualifications set out in Part 1 of Schedule 5.
8.2 Where any Principal Warranty is qualified by the expression "so far as the
Warrantor is aware" or "to the best of the knowledge, information and
belief of the Warrantor" or words having similar effect, such knowledge and
awareness shall be confined to the actual knowledge of the Warrantor at the
date of this Agreement having made reasonable enquiry of each of Nigel Low,
C Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxx.
8.3 Each of the Warranties is separate and independent and, except as expressly
provided to the contrary in this Agreement, is not limited:
(a) by reference to any other Warranty; or
(b) by any other provision of this Agreement.
9 BUYER WARRANTIES
9.1 On the date of this Agreement the Buyer warrants to the Sellers in the
terms of the Buyer Warranties subject to the limitations and qualifications
set out in Part 2 of Schedule 5.
9.2 The Buyer acknowledges that the Sellers have entered into this Agreement in
reliance on the Buyer Warranties.
10 ORDERLY MARKET
10.1 For the purposes of this clause 10:
(a) INTEREST shall have the meaning given to it in section 208 of the
Companies Xxx 0000 excluding section 209 thereof;
(b) CONTROLLED SHARES means any of the Initial Consideration Shares
allotted and issued to Apax or Wellcome Trust or their respective
nominees;
(c) CONTROLLED PERIOD means the period of 12 months following Completion.
10.2 Subject to clauses 10.3 and 10.4, each of Apax and Wellcome Trust covenants
to the Buyer that during the Controlled Period it will, and will procure
that its or his (as the case may be) nominees will:
(a) notify the Buyer and its nominated broker in writing prior to the
disposal of any Controlled Shares; and
(b) not dispose of any Controlled Shares other than through the Buyer's
nominated broker (provided that if Apax or Wellcome Trust (as the case
may be) receive an unsolicited offer to acquire Controlled Shares then
the preceding provision of this sub-paragraph (b) shall not apply to a
disposal to the person who made such offer but such Seller shall be
obliged to notify the Buyer's nominated broker in writing prior to
such disposal).
10.3 The provisions of this clause 10 shall not apply to:
(a) a disposal pursuant to a court order;
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(b) a renunciation of a right to subscribe for shares where such right is
derived from the Controlled Shares or a failure to take up any such
right;
(c) if the Buyer makes an offer to its shareholders to purchase its own
shares or proposes a scheme of arrangement, a disposal or agreement to
dispose of any Controlled Shares to the Buyer pursuant to that offer
or scheme;
(d) the acceptance by Apax or Wellcome Trust or their respective nominees
of a general offer made for all the issued share capital of the Buyer
provided such offer is recommended by the board of directors of the
Buyer;
(e) the execution by Apax or Wellcome Trust of an irrevocable commitment
to accept a general offer made for all the issued share capital of the
Buyer provided such offer is recommended by the board of directors of
the Buyer;
(f) a transfer or purported transfer of the legal and/or beneficial
interest of any Controlled Shares by way of the grant of security for
borrowing by Apax or Wellcome Trust; or
(g) a disposal by each of Apax and Wellcome Trust in their absolute
discretion of no more than *** Controlled Shares in aggregate to
Xxxxxx Xxxxxxx, Nigel Low and/or Xxxxxxx Xxxxx and/or their respective
family members and/or their respective trustees as they see fit and on
such terms as each of Apax and Wellcome Trust see fit.
10.4 Notwithstanding the provisions of clauses 10.2 and 10.3, in the event that
either of Apax and Wellcome Trust intends to dispose of Controlled Shares
in order to fund a payment pursuant to clauses 4.7, 6.8(b), 6.8(c), 7.1 and
paragraph 1 of Part 1 of Schedule 8, the following provisions shall apply:
(a) for as long as Apax or Wellcome Trust (as relevant) holds ***% or more
of the issued share capital of the Buyer, the relevant Seller shall:
(i) firstly notify the Buyer and its nominated broker of its
intention to dispose of such shares; and;
(ii) provide the Buyer's nominated broker with reasonable details of
the proposed trade; and
(iii) not dispose of any Controlled Shares other than through the
Buyer's nominated broker, provided that if the Buyer's nominated
broker cannot effect the trade at a price or within timescales
acceptable to Apax or Wellcome Trust (as the case may be), Apax
or Wellcome Trust (as the case may be) shall be entitled to
effect such trade with another broker of their choice and shall
advise the Buyer of the relevant broker's details and the
progress of such trade; and.
(b) for as long as Apax or Wellcome Trust (as relevant) holds less than
***% of the issued share capital of the Buyer, the provisions of
clause 10.2 shall not apply to the disposal of Controlled Shares for
that purpose.
10.5 The provisions of this clause shall also apply to any other securities for
the time being representing or derived from the Controlled Shares (whether
by way of consolidation, sub division, capitalisation or rights issue or
otherwise), other than any such securities as may be acquired for cash by
way of rights or other issue, and references in this clause to the
Controlled Shares shall be construed accordingly.
11 LOANS AND GUARANTEES
11.1 Each Seller shall procure that on Completion:
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(a) all indebtedness owing immediately before Completion from that Seller
or any person connected with that Seller to the Company (other than
amounts owing by way of trade credit in the ordinary course of trading
as a result of goods or services supplied on normal arm's length
terms) is or has been satisfied in full together with all interest
accruing on it up to (but excluding) Completion; and
(b) all indebtedness owing immediately before Completion by the Company to
that Seller or any person connected with that Seller (other than
amounts owing by way of trade credit in the ordinary course of trading
as a result of goods or services supplied on normal arm's length terms
or pursuant to any service agreement with any Employee or Redundant
Employee) is or has been satisfied in full together with all interest
accruing on it up to (but excluding) Completion.
11.2 The parties acknowledge that the Consideration Price has been agreed on the
basis that no indebtedness of any kind (whether or not then presently
payable) will be owing to or by the Company immediately after Completion by
or to any Seller or person connected with any Seller other than any amounts
owing by way of trade credit in the ordinary course of trading as a result
of goods or services supplied on normal arm's length terms or pursuant to
any service agreement with any such Seller.
11.3 The Sellers shall procure that on Completion the Company is released from
all guarantees and indemnities given by the Company in respect of any
liability or obligation of any Seller or any person connected with any
Seller.
12 PROTECTIVE COVENANT
12.1 Each Seller covenants with the Buyer and the Company that he or it (as the
case may be) shall not for a period of 12 months after Completion:
(a) induce or attempt to induce any person who is at the date of
Completion a director or employee of the Company to leave the
employment of the Company; or
(b) employ or attempt to employ any person who is at the date of
Completion a director or employee of the Company.
12.2 If the restriction in clause 12.1 is void but would be valid if some part
of the restriction were deleted or amended, the restriction shall apply
with such modification as may be necessary to make it valid.
12.3 The Sellers acknowledge that the provisions in clause 12.1 are no more
extensive than is reasonable to protect the Buyer as the purchaser of the
Shares.
12.4 The covenant in this clause may with the prior written consent of the Buyer
be enforced by the Company against the Sellers or any of them under the
Contracts (Rights of Third Parties) Xxx 0000. The provisions of this clause
may be varied or terminated by agreement between the Sellers and the Buyer
(and the Buyer may also release or compromise in whole or in part any
liability in respect of rights or claims contemplated by this clause)
without the consent of the Company.
13 ANNOUNCEMENTS
13.1 Except to the extent otherwise expressly permitted by this Agreement, the
parties shall not make any public announcement or issue a press release or
respond to any enquiry from the press or other media concerning or relating
to this Agreement or its subject matter or any ancillary matter.
13.2 Notwithstanding any other provision in this Agreement, any party may, after
consultation with the other parties whenever practicable, make or permit to
be made an announcement concerning or
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relating to this Agreement or its subject matter or any ancillary matter if
and to the extent required by:
(a) law; or
(b) any securities exchange on which its securities are listed or traded;
or
(c) any regulatory or governmental or other authority with relevant powers
to which that party is subject or submits, whether or not the
requirement has the force of law.
14 CONFIDENTIALITY
14.1 Each of the Sellers and the Buyer hereby undertakes that they shall
preserve the confidentiality of the Non-Disclosable Information which
relates to the other, this Agreement and the Company and its Business, and
except to the extent otherwise expressly permitted by this Agreement, not
directly or indirectly reveal, report, publish, disclose or transfer or use
for its own or any other purposes such Non-Disclosable Information provided
that nothing in this clause shall prevent the Buyer from using any
Non-Disclosable Information after Completion in connection with carrying on
business of the Company or the Buyer's Group after Completion.
14.2 Notwithstanding any other provision in this Agreement and without prejudice
to the above, the Buyer may, after consultation with the Sellers whenever
practicable, and any Seller may, after consultation with the Buyer and each
other Seller whenever practicable, disclose Non-Disclosable Information if
and to the extent:
(a) required by law; or
(b) required by any securities exchange on which its securities are listed
or traded; or
(c) required by any regulatory or governmental or other authority with
relevant powers to which it is subject or submits (whether or not the
authority has the force of law); or
(d) required to vest the full benefit of this Agreement in that party or
to enforce any of the rights of that party in this Agreement; or
(e) required by its professional advisers, officers, employees,
consultants, subcontractors or agents to provide their services (and
subject always to similar duties of confidentiality); or
(f) that information is in or has come into the public domain through no
fault of that party; or
(g) the other party has given prior written consent to the disclosure; or
(h) it is necessary to obtain any relevant tax clearances from any
appropriate tax authority.
14.3 The restrictions contained in this clause 14 shall continue to apply after
Completion without limit in time.
15 ENTIRE AGREEMENT
15.1 This Agreement and the documents referred to or incorporated in it
constitute the entire agreement between the parties relating to the subject
matter of this Agreement and supersede and extinguish any prior drafts,
agreements, undertakings, representations, warranties and arrangements of
any nature whatsoever, whether or not in writing, between the parties in
relation to the subject matter of this Agreement. Notwithstanding that the
Short Form Agreement will be executed after the date of this Agreement, in
the event of any dispute in relation to, or differences to the terms or
interpretation of, the Short Form Agreement, the provisions of this
Agreement shall prevail.
15.2 Each of the parties acknowledges and agrees that it has not entered into
this Agreement in reliance on any statement or representation of any person
(whether a party to this Agreement or not) other than as expressly
incorporated in this Agreement.
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15.3 Nothing in this Agreement or in any other document referred to herein shall
be read or construed as excluding any liability or remedy as a result of
fraud.
15.4 Without limiting the generality of the foregoing, each of the parties
irrevocably and unconditionally waives any right or remedy it may have to
claim damages and/or to rescind this Agreement by reason of any
misrepresentation (other than a fraudulent misrepresentation) having been
made to it by any person (whether party to this Agreement or not) and upon
which it has relied in entering into this Agreement.
16 ASSIGNMENT AND TRANSFER
This Agreement is personal to the parties and no party may assign,
transfer, subcontract, delegate, charge or otherwise deal in any other
manner with this Agreement or any of its rights or obligations nor grant,
declare, create or dispose of any right or interest in it without the prior
written consent of all other parties save The Wellcome Trust Limited may
assign its rights under this Agreement to any successor trustee of the
Wellcome Trust and the Buyer may assign the benefit of this Agreement to
any member of the Buyer's Group. In the event such assignee ceases to be a
member of the Buyer's Group, the benefit of this Agreement shall be
transferred back to an entity within the Buyer's Group with immediate
effect. Save as expressly stated in this Agreement, this Agreement and its
terms shall be binding on the personal representatives and the estate of
the Warrantor. Any purported assignment, transfer, subcontracting,
delegation, charging or dealing in contravention of this clause shall be
ineffective.
17 COSTS AND EXPENSES
Except as otherwise stated in this Agreement, each party shall pay its own
costs and expenses in relation to the negotiation, preparation, execution,
performance and implementation of this Agreement and each document referred
to in it and other agreements forming part of the transaction, save that
this clause shall not prejudice the right of either party to seek to
recover its costs in any litigation or dispute resolution procedure which
may arise out of this Agreement.
18 EFFECT OF COMPLETION
This Agreement shall, to the extent that it remains to be performed,
continue in full force and effect notwithstanding Completion.
19 WAIVER
19.1 A waiver of any right, power, privilege or remedy provided by this
Agreement must be in writing and may be given subject to any conditions
thought fit by the grantor. For the avoidance of doubt, any omission to
exercise, or delay in exercising, any right, power, privilege or remedy
provided by this Agreement shall not constitute a waiver of that or any
other right, power, privilege or remedy.
19.2 A waiver of any right, power, privilege or remedy provided by this
Agreement shall not constitute a waiver of any other breach or default by
the other party and shall not constitute a continuing waiver of the right,
power, privilege or remedy waived or a waiver of any other right, power,
privilege or remedy.
19.3 Any single or partial exercise of any right, power, privilege or remedy
arising under this Agreement shall not preclude or impair any other or
further exercise of that or any other right, power, privilege or remedy.
20 VARIATION
Any variation of this Agreement or of any of the documents referred to in
it is valid only if it is in writing and signed by or on behalf of every
party to this Agreement or such document as the case may be.
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21 SEVERANCE
21.1 If any provision of this Agreement is held to be invalid or unenforceable
by any judicial or other competent authority, all other provisions of this
Agreement will remain in full force and effect and will not in any way be
impaired.
21.2 If any provision of this Agreement is held to be invalid or unenforceable
but would be valid or enforceable if some part of the provision were
deleted, or the period of the obligation reduced in time, or the range of
activities or area covered, reduced in scope, the provision in question
will apply with the minimum modifications necessary to make it valid and
enforceable.
22 FURTHER ASSURANCE
22.1 Each of the Sellers shall from time to time on or following Completion, on
being requested to do so by the Buyer, use all reasonable endeavours to do
or procure the doing of all such acts and/or execute or procure the
execution of all such documents in a form reasonably satisfactory to the
Buyer at the cost and expense of the relevant Seller necessary to transfer
good title to the Shares held by such Seller to the Buyer.
22.2 For so long after Completion as the Seller or any nominee of it or him (as
the case may be) remains the registered holder of any Share, it or he (as
the case may be) shall hold (or direct the relevant nominee to hold) that
Share and any distributions, property and rights deriving from it in trust
for the Buyer and shall deal with that Share and any distributions,
property and rights deriving from it as the Buyer directs; in particular,
each Seller shall exercise all voting rights as the Buyer directs or shall
execute or procure the execution of an instrument of proxy or other
document which enables the Buyer or its representative to attend and vote
at any meeting of the Company.
23 NOTICES
23.1 Any communication to be given in connection with this Agreement shall be in
writing in English except where expressly provided otherwise and shall
either be delivered by hand or sent by first class prepaid post or fax or
(in the case of the Warrantor) by email (but if by email with a copy by
hand or first class pre-paid post to the postal address). Delivery by
courier shall be regarded as delivery by hand.
23.2 Such communication shall be sent to the address of the relevant party
referred to in this Agreement or the fax number or email address set out
below or to such other address or fax number or email address as may
previously have been communicated to the other party in accordance with
this clause 23. Each communication shall be marked for the attention of the
relevant person.
Party Fax Number/Email Address For the attention of
----- ------------------- -------------------------------- -----------------------
Buyer x00 (0)000 000 0000 Xxxxxxx Xxxxx, 000 Xxxxxxx Xxxx, Chief Financial
Xxxxxxxx, Xxxxxxxxx, XX00 0XX Officer/General Counsel
Wellcome Trust *** 000 Xxxxxx Xxxx ***
Xxxxxx XX0 0XX
Apax *** 00 Xxxxxxxx Xxxxx ***
Xxxxxx XXX 0XX
Xxxxxx Xxxxxxx *** *** ***
23.3 A communication shall be deemed to have been served:
(a) if delivered by hand at the address referred to in clause 23.2, at the
time of delivery;
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(b) if sent by first class prepaid post to the address referred to in
clause 23.2, at the expiration of two clear days after the time of
posting; and
(c) if sent by facsimile to the number referred to in clause 23.2 or sent
by email to the email address specified in that clause, at the time of
completion of transmission by the sender.
If a communication would otherwise be deemed to have been delivered outside
normal business hours (being 9:30 a.m. to 5:30 p.m. on a Business Day)
under the preceding provisions of this clause 23.3, it shall be deemed to
have been delivered at the next opening of such business hours.
23.4 In proving service of the communication, it shall be sufficient to show
that delivery by hand was made or that the envelope containing the
communication was properly addressed and posted as a first class prepaid
letter or that the fax was despatched and a confirmatory transmission
report received or that the email was transmitted to the correct email
address, whether or not opened or read by the recipient.
23.5 A party may notify the other parties to this Agreement of a change to its
name, relevant person, address or fax number or email address for the
purposes of clause 23.2 or 23.7 as the case may be provided that such
notification shall only be effective on:
(a) the date specified in the notification as the date on which the change
is to take place; or
(b) if no date is specified or the date specified is less than five clear
Business Days after the date on which notice is deemed to have been
served, the date falling five clear Business Days after notice of any
such change is deemed to have been given.
23.6 For the avoidance of doubt, the parties agree that the provisions of
clauses 23.1, 23.2, 23.3, 23.4 and 23.5 shall not apply in relation to the
service of any claim form, application notice, order, judgment or other
document relating to or in connection with any proceeding, suit or action
arising out of or in connection with this Agreement.
23.7 In this Agreement:
(a) where the consent, approval or agreement of all of the Sellers
collectively is required, such consent, approval or agreement shall be
deemed to have been validly given if given in writing signed by or on
behalf of both Apax and Wellcome Trust; and
(b) where notice requires to be served or a matter intimated to all of the
Sellers collectively it shall be sufficient for such notice to be
served or such intimation given to both Apax and Wellcome Trust.
24 WELLCOME
The Wellcome Trust Limited represents and warrants that it is, and each of
the other parties to this Agreement acknowledge and agree that The Wellcome
Trust Limited is, entering into this Agreement solely in its capacity as
the trustee of Wellcome Trust and it is hereby agreed and declared that
notwithstanding anything to the contrary contained or implied in this
Agreement:
(a) the obligations incurred by The Wellcome Trust Limited under or in
consequence of this Agreement shall be enforceable against it or the
other trustees of Wellcome Trust from time to time; and
(b) the liabilities of The Wellcome Trust Limited (or such other trustees
as are referred to in clause (a) above) in respect of such obligations
shall be limited to such liabilities as can and may lawfully and
properly be met out of the Retained Consideration Shares and the
Deferred Consideration or out of the assets of Wellcome Trust for the
time being in the hands or under the control of The Wellcome Trust
Limited or such other trustees from time to time.
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25 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall constitute an original, and all the counterparts shall together
constitute one and the same agreement.
26 GOVERNING LANGUAGE
26.1 Each notice, instrument, certificate or other communication to be given by
one party to another in this Agreement or in connection with this Agreement
shall be in English (being the language of negotiation of this Agreement)
and in the event that such notice, instrument, certificate or other
communication or this Agreement is translated into any other language, the
English language text shall prevail.
27 GOVERNING LAW
This Agreement is governed by and is to be construed in accordance with
English law.
28 JURISDICTION
The parties irrevocably agree that the courts of England and Wales shall
have exclusive jurisdiction to settle any dispute which may arise out of or
in connection with this Agreement.
29 INTERPRETATION
29.1 The clause and paragraph headings and the table of contents used in this
Agreement are inserted for ease of reference only and shall not affect
construction.
29.2 References in this Agreement and the Schedules to the parties, the
Introduction, Schedules and clauses are references respectively to the
parties, the Introduction and Schedules to and clauses of this Agreement.
29.3 References to documents "in the agreed form" are to documents in terms
agreed between the parties prior to execution of this Agreement and
initialled for the purposes of identification by or on behalf of each of
the parties.
29.4 References to "writing" or "written" includes any other non-transitory form
of visible reproduction of words.
29.5 References to times of the day are to that time in London and references to
a day are to a period of 24 hours running from midnight.
29.6 References to any English legal term or legal concept shall in respect of
any jurisdiction other than England be deemed to include that which most
approximates in that jurisdiction to such English legal term or legal
concept.
29.7 References to persons shall include bodies corporate, unincorporated
associations and partnerships, in each case whether or not having a
separate legal personality.
29.8 References to the word "include" or "including" (or any similar term) are
not to be construed as implying any limitation and general words introduced
by the word "other" (or any similar term) shall not be given a restrictive
meaning by reason of the fact that they are preceded by words indicating a
particular class of acts, matters or things.
29.9 Save where the context specifically requires otherwise, words importing one
gender shall be treated as importing any gender, words importing
individuals shall be treated as importing corporations and vice versa,
words importing the singular shall be treated as importing the plural and
vice versa, and words importing the whole shall be treated as including a
reference to any part thereof.
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29.10 References to statutory provisions, enactments or EC Directives shall
include references to any amendment, modification, extension,
consolidation, replacement or re-enactment of any such provision, enactment
or Directive (whether before or after the date of this Agreement), to any
previous enactment which has been replaced or amended and to any
regulation, instrument or order or other subordinate legislation made under
such provision, enactment or Directive, unless any such change imposes upon
any party any liabilities or obligations which are more onerous than as at
the date of this Agreement.
29.11 A company or other entity shall be a "holding company" for the purposes of
this Agreement if it falls within either the meaning attributed to that
term in section 736 and 736A of the Companies Xxx 0000 (as amended) or the
meaning attributed to the term "parent undertaking" in section 258 of such
Act, and a company or other entity shall be a "subsidiary" for the purposes
of this Agreement if it falls within any of the meanings attributed to a
"subsidiary" in section 736 and 736A of the Companies Xxx 0000 (as amended)
or the meaning attributed to the term "subsidiary undertaking" in section
258 of such Act, and the terms "subsidiaries" and "holding companies" are
to be construed accordingly.
29.12 Section 839 Income and Corporation Taxes Act 1988 is to apply to determine
whether one person is connected with another for the purposes of this
Agreement.
29.13 The rights and obligations of the Sellers under this Agreement are, save
to the extent that they are expressly stated to be joint rights or
obligations of the Sellers, their several rights and obligations and,
subject thereto, no Seller shall have any liability to the Buyer in respect
of any act or omission of or default or breach of, this Agreement by any
other Seller. The liability of the Apax and Wellcome Trust in respect of
any reduction in the amount of Retained Consideration Shares or Deferred
Consideration to which they would otherwise be entitled under this
Agreement as a result of any Claims shall be several.
30 RIGHTS OF THIRD PARTIES
Except as otherwise expressly stated, this Agreement does not confer any
rights on any person or party (other than the parties to this Agreement)
pursuant to the Contracts (Rights of Third Parties) Xxx 0000.
31 EXECUTION
This Agreement is entered into by the parties on the date at the beginning
of this Agreement.
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SCHEDULE 3
PART 1: SELLERS' WARRANTIES
A. GENERAL/COMMERCIAL
1 CAPACITY AND AUTHORITY
1.1 The relevant Seller has the requisite power, capacity and authority to
enter into and perform this Agreement and all other documents entered into
by that Seller pursuant to or in connection with this Agreement.
1.2 This Agreement and all other documents entered into by the relevant Seller,
pursuant to or in connection with this Agreement, constitute binding
obligations of the relevant Seller enforceable in accordance with their
respective terms, subject to:
(a) limitations arising from the laws of bankruptcy, administration,
liquidation, insolvency, receivership or similar laws affecting
generally the enforcement of creditors' rights;
(b) the effect of general principles of law and equity;
(c) where any obligations of any person are to be performed or observed
outside England and Wales, or by a person subject to the laws of a
jurisdiction outside England and Wales, the possibility that such
obligations may not be enforceable under English law to the extent
that performance or observance thereof would be illegal or contrary to
public policy under the laws of any such jurisdiction;
(d) the effect of the Limitation Xxx 0000; and
(e) the laws of any jurisdiction outside England.
2 NO BREACH
2.1 Neither the entry into of this Agreement by the relevant Seller nor the
implementation by that Seller of the transactions contemplated by it will
result in:
(a) breach of any provision of any constitutional document of the relevant
Seller (if appropriate); or
(b) a breach of, or give rise to a default under, any contract or other
instrument to which the relevant Seller is a party or by which it is
bound; or
(c) breach of any applicable laws or regulations or of any order, decree
or judgment of any court, or any governmental, regulatory or other
authority applicable to the relevant Seller.
3 THE SHARES
3.1 The Shares constitute at the date of this Agreement and will at Completion
(including in respect of any Shares issued to Apax in connection with the
conversion of the Apax Loan prior to Completion) constitute the entire
issued share capital of the Company at Completion, are and will be fully
paid or credited as fully paid and have been or will be duly and validly
authorised and issued.
3.2 The relevant Seller is the sole legal and beneficial owner of those of the
Shares set against its name in part 2 of Schedule 1 or is otherwise able to
sell and transfer the entire legal and beneficial ownership of such Shares
to the Buyer.
3.3 As regards the relevant Seller in respect of the Shares held by it, there
is no Encumbrance on, over or affecting such Shares.
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PART 2: PRINCIPAL WARRANTIES
1 THE COMPANY
The Company is duly incorporated and validly existing under the laws of the
jurisdiction in which it is incorporated.
2 ARRANGEMENTS WITH THE COMPANY
There are not currently outstanding any contracts or agreements to which
the Company is a party which are otherwise than on arm's length normal
commercial terms.
3 CONSTITUTIONAL DOCUMENTS, STATUTORY BOOKS AND RETURNS
The copies of the Memorandum and Articles of Association of the Company
attached to the Disclosure Letter are complete and accurate in all material
respects. The register of members and other statutory books and registers
of the Company have been properly kept and no notice or allegation that any
of them is incorrect or should be rectified has been received. All returns,
particulars, resolutions and other documents which the Company is required
by law to file with or deliver to the registrar of companies have been
correctly made up and duly filed or delivered.
4 ACCOUNTS, MANAGEMENT ACCOUNTS AND GRANTS
4.1 The Accounts have been prepared in accordance with the Accounts Standards
and give a true and fair view of the state of affairs of the Company at the
Accounts Date and of the profits and losses for the period covered by the
Accounts and at Completion will be audited.
4.2 The Accounts have been prepared and will be audited on a basis consistent
with the accounting policies used in the preparation of the audited
accounts of the Company for the preceding financial year.
4.3 The Company is not subject to any arrangement for receipt or repayment of
any grant, subsidy or financial assistance from any governmental department
or other body.
4.4 The Management Accounts have been prepared applying and adopting policies,
principles, bases, conventions, rules, practices, techniques, methods and
procedures consistent with those employed in preparing the management
accounts of the Company for each of the 12 months in the Financial Year
2004 and enable a reasonable judgement to be made as to the income and
expenditure of the Company for the period to which they relate.
5 EVENTS SINCE THE ACCOUNTS DATE
Since the Accounts Date:
(a) the Company has not allotted or issued or agreed to allot or issue any
share capital;
(b) the Company has not redeemed or purchased or agreed to redeem or
purchase any of its share capital;
(c) no resolution of the Company in general meeting has been passed other
than resolutions relating to ordinary business at annual general
meetings;
(d) the Company has not declared, made or paid a dividend or other
distribution except as provided for in the Accounts;
(e) no change in the accounting reference period of the Company has been
made;
(f) the Company has not acquired or disposed of or agreed to acquire or
dispose of any material business or asset (other than in the ordinary
course of business);
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(g) the Company has not assumed or incurred, or agreed to assume, any
material liability (including any contingent liability), obligation,
commitment or expenditure involving an amount in excess of L10,000
that is not included within the Budget or set out in the Management
Accounts; and
(h) the Company has not repaid any borrowing or indebtedness in advance of
its stated maturity.
6 TRADING ARRANGEMENTS AND RB CONTRACT
6.1 The Company is not a party to any contract, arrangement or commitment which
is:
(a) otherwise than in the ordinary course of business;
(b) of a long-term nature (that is to say, unlikely to have been fully
performed, in accordance with its terms, more than 12 months after the
date on which it was entered into); or
(c) which is incapable of termination in accordance with its terms by the
Company on 12 months' notice or less.
6.2 In relation to the RB Contract (all clause references and defined terms in
this sub-paragraph are to clauses and defined terms in the RB Contract):
(a) the Company has not consented to any sub-licence or sub-contract under
clause 3.5.2;
(b) no notice has been given under 3.5.8;
(c) the West Agreement has not been novated to Reckitt Benckiser
Healthcare (UK) Limited;
(d) the Company has not sub-licensed or sub-contracted any rights under
the RB Contract;
(e) Reckitt Benckiser Healthcare (UK) Limited has not exercised its option
under clause 3.10;
(f) the Disclosure Letter contains a summary of the clinical status and
formulation development status of IX-1003 as at 15 June 2005;
(g) the Company is not in breach of its obligation to transfer Know How to
Reckitt Benckiser Healthcare (UK) Limited pursuant to clause 4.1 of
the RB Contract;
(h) the joint steering committee under the RB Contract has not embarked on
the development of any products other than IX-1003, IX-1004 and
IX-1005;
(i) West provides the services described in clause 10.4 and the Warrantor
has no reason to believe that West intends to cease providing those
services; and
(j) the Company has not exercised Option provided for in clause 13.1.
6.3 Copies of all agreements to which the Company is party and which in any one
Financial Year carry a financial liability or financial benefit for the
Company of L50,000 or more are contained in the Disclosure Letter (with the
exception of employee service contracts and lease agreements relating to
premises occupied by the Company). The Company has complied in all material
respects with, and so far as the Warrantor is aware, the other parties have
complied in all material respects with, the terms of all such contracts. No
notice to terminate any of such contracts has either been served or
received by the Company and the Warrantor is not aware of any intention on
the part of any party to any such material contract to serve a notice to
terminate.
7 LICENCES TO OPERATE
7.1 The Company has complied with all material statutory, municipal,
governmental, court and other requirements applicable to:
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(a) the formation, continuance in existence, creation and issue of
securities; and
(b) the management, property and operations of the Company.
7.2 The Company has not received any written notice in the 12 months prior to
the date of this Agreement alleging that any licences, consents and other
permissions and approvals required for or in connection with the carrying
on of the Business have not been obtained.
8 LITIGATION
8.1 The Company is not at present engaged in, nor has been engaged in during
the 12 months prior to the date of this Agreement, any action or proceeding
(whether civil or criminal), arbitration or mediation (whether formal or
informal), investigation or inquiry other than any matter in which the
Company is a claimant in the collection of debts arising in the ordinary
course of business none of which individually exceeds L15,000 and which do
not exceed L30,000 in aggregate.
8.2 The Company has not received notice in writing of:
(a) any actual, pending or threatened governmental, regulatory
investigation or inquiry, whether formal or otherwise, which is
connected with the Company and the Warrantor is not aware of any facts
or circumstances which are likely to give rise to any such action
against the Company; or
(b) any claim in damages connected with the Company (whether liquidated or
unliquidated), or of an injunction or other order or an application
for such an injunction or other order, either as a party or non-party
to proceedings, arbitration, investigation, inquiry or other action,
formal or otherwise, which is connected with the Company.
8.3 There is no judgment, award, order or decision outstanding or, so far as
the Warrantor is aware, pending against the Company or its assets.
9 INSURANCE
9.1 The Disclosure Letter sets out a list of all material insurance policies
maintained by or on behalf of the Company and full details of any claims
made in the 24 months prior to the date of this Agreement under such
insurance policies, or prior policies in respect of similar insured risks.
All premiums due and payable on the insurance polices have been paid and so
far as the Warrantor is aware the Company has not received any written
notice that the policies relating to them are not in full force and effect
or void or voidable.
9.2 No claim in excess of L10,000 has been made and is outstanding either by
the insurer or the insured under any of the said policies.
10 ASSETS
10.1 The Company owns or is entitled to use all material tangible assets and
property which the Warrantor considers necessary for the purposes of
carrying on the Business as it is currently carried on.
10.2 No material tangible asset or property is the subject of any Encumbrance
(excepting any lien arising by operation of law in the ordinary course of
trading) or, save as disclosed in the Disclosure Letter, the subject of any
leasing, hire, hire-purchase, conditional sale or credit sale agreement.
10.3 There are disclosed in the Disclosure Letter a list of material tangible
assets and property subject to leasing, hire, hire-purchase, conditional
sale or credit sale agreement terms.
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11 BORROWINGS AND LENDINGS
Borrowings
11.1 The Company does not have any bank borrowings.
Loans
11.2 Other than in the ordinary course of business, the Company has not lent any
money which has not been repaid, and does not own the benefit of any debts
(whether or not due for payment), other than debts which have arisen in the
ordinary course of business.
12 INSOLVENCY
12.1 The Company has not:
(a) entered into any arrangement or composition for the benefit of its
creditors or any of them nor has it (or its agent or nominee) convened
a meeting of its creditors;
(b) submitted to its creditors or any of them a proposal under Part I of
the Insolvency Xxx 0000;
(c) entered into any arrangement, scheme, compromise, moratorium or
composition with any of its creditors (whether under Part I of the
Insolvency Xxx 0000 or otherwise);
(d) made an application to the Court under section 425 of the Companies
Xxx 0000 or resolved to make such an application;
(e) presented a petition for winding up nor has a petition for winding up
been presented against it which has not been withdrawn within 14 days,
nor has a winding up order been made against it or a provisional
liquidator appointed;
(f) been the subject of a resolution for voluntary winding up (other than
a voluntary winding up while solvent for the purposes of an
amalgamation or reconstruction which has the prior written approval of
the other party) nor has a meeting of its shareholders been called to
consider a resolution for winding up;
(g) had an administrative receiver or receiver appointed in respect of all
or any of its assets or the assets of any guarantor;
(h) had a written demand for the payment of sums due served upon it in
accordance with Section 123(1)(a) of the Insolvency Xxx 0000 which has
not been settled or disputed.
12.2 The Company is not:
(a) the subject of an interim order under Schedule 1B of the Insolvency
Xxx 0000 nor has it made an application to Court for such an order;
(b) the subject of an administration order, nor has a resolution been
passed by the Directors or shareholders for the presentation of a
petition for such an order nor has a petition for such an order been
presented or come into force;
(c) subject to a resolution passed by the Directors or the shareholders
for notice of appointment of an administrator to be filed with the
Court, nor has a notice of appointment of an administrator been filed
with the Court by the holder of a floating charge or by the Company or
its Directors.
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B EMPLOYMENT AND PENSIONS
1 EMPLOYEES
Employment contracts for Directors and Employees
1.1 The Disclosure Letter contains the following:
(a) an accurate list of all Employees together with their job title and
salary; and
(b) accurate and complete copies of the Directors' current service
agreements and of the current service agreements for all other
Employees.
Incentive Schemes
1.2 The Disclosure Letter contains details of all share incentive, share
option, profit sharing or other incentive or benefit schemes between the
Company and any of its Employees which are now in force and there are no
other such schemes.
Notice periods
1.3 All contracts of service or services with Directors, Employees or
Consultants can be terminated by 12 months' notice or less without giving
rise to any claim for damages or compensation (other than a statutory
redundancy payment or statutory compensation for unfair dismissal or other
statutory right, if applicable).
Pay reviews
1.4 No remuneration reviews or negotiations for an increase in the remuneration
or benefits of an Employee are current or due to take place within the next
three months.
Assurances etc
1.5 No assurances or undertakings (whether legally binding or not) have been
given to any of the Employees as to the continuation, introduction,
increase or improvement of any terms and conditions, remuneration, benefits
or other bonus or incentive between the Company and any of its Employees.
Loans
1.6 There are no outstanding loans between the Company and an Employee (other
than loans not individually exceeding L5,000 relating to travel
arrangements).
Property
1.7 No employee resides in or occupies or is entitled to reside in or occupy
any property belonging to the Company.
Secondments
1.8 The Company has not entered into any secondment arrangements relating to
any Employee.
Redundancy
1.9 The Company has no obligation to make any payment, on the redundancy of any
Employee, in excess of the statutory redundancy payment.
Trade Union
1.10 The Company does not recognise a trade union nor does it have any works or
supervisory council or other body representing Employees.
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1.11 The Company has not received any application for recognition from a trade
union.
2 PENSIONS
2.1 Other than in respect of the Norwich Union Stakeholder Pension Scheme the
Company has not paid, provided or contributed towards and the Company is
not under any obligation (whether or not legally enforceable) to pay,
provide or contribute towards, any relevant benefit as defined in section
612, Taxes Act 1988 for or in respect of any Pensionable Employee or any
spouse, child or dependent of any Pensionable Employee.
2.2 The Company is not or has not since 27 April 2004 been an associate of or
connected with (within the meaning of sections 435 and 239 respectively of
the Insolvency Act 1986) any person who is an employer in relation to any
occupational pension scheme, other than a scheme that provides for money
purchase benefits only (as defined in section 181(1) of the Pension Schemes
Act 1993).
2.3 The Company is compliant with the stakeholder pension employer requirements
referred to in Part IV of the Stakeholder Pension Schemes Regulations 2000
and section 3 of the Reform and Pensions Xxx 0000.
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C INTELLECTUAL PROPERTY AND INFORMATION TECHNOLOGY
1 INTELLECTUAL PROPERTY
1.1 All Intellectual Property which is used by the Company is owned by, or
licensed to, the Company.
Registered IP
1.2 Details of all registered Intellectual Property, including applications
made for registration, owned by the Company are set out in the Disclosure
Letter (REGISTERED IPR).
1.3 The Company is the exclusive legal and beneficial owner of the Registered
IPR free from all Encumbrances. So far as the Warrantor is aware, no
challenge by a third party has been made in respect of the Company's
applications to register its Intellectual Property.
1.4 All fees payable in respect of the maintenance of the Registered IPR have
been paid. No third party has challenged any of the Registered IPR and, so
far as the Warrantor is aware, there are no proceedings (including any
oppositions or allegations) that might result in any of the registrations
of the Registered IPR being cancelled or revoked or being subject to a
compulsory licence, and so far as the Warrantor is aware the Registered IPR
is valid.
1.5 All material research and development activity conducted by or on behalf of
the Company has been conducted by employees of the Company acting in the
course of their employment or pursuant to written agreements complete and
accurate copies of which are contained in the Disclosure Letter.
1.6 The Company has disclosed in the Disclosure Letter its processes in place
to document inventions and protect against unauthorised disclosure of its
Confidential Information, and operates in accordance with those processes.
Licensed IP
1.7 Complete and accurate copies of all licences of Intellectual Property
granted to or by the Company, or which otherwise relate to any Intellectual
Property owned by the Company, are set out in the Disclosure Letter (with
the exception of basic material transfer agreements and routine software or
research reagent licenses).
1.8 The Company has complied in all material respects with the terms of, and so
far as the Warrantor is aware the other parties have complied with the
material terms of, licences and other agreements referred to in warranty
1.7 and the Warrantor is not aware of any intention on the part of any
party to any such licences or agreements to serve a notice to terminate.
Infringement
1.9 The Company has not received any written notice in the 24 months prior to
the date of this Agreement alleging that the principal processes employed
and the principal products and services dealt in by the Company infringe
the Intellectual Property of any third party.
2 INFORMATION TECHNOLOGY
2.1 Other than as set out in the Disclosure Letter, the information technology
systems of the Company have not been the subject of failure or breakdown in
the 12 months prior to the date of this Agreement that has caused any
material disruption to the business of the Company.
2.2 The Company has protected the information technology systems used by it
against viruses, Trojan horses and other damaging programming code using
preventative measures consistent with those commonly used in the drug
discovery business. The Company has procedures in place designed to prevent
any unauthorised access to the information technology systems used by it
and the data
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stored on those information technology systems consistent with those
commonly used in the drug discovery business.
2.3 Details of the Company's security procedures and disaster recovery plans
are set out in, or attached to, the Disclosure Letter. The Company has
complied with such procedures and plans for the 12 months prior to the date
of this Agreement. The Company maintains back-up capabilities which back up
data after the close of business on each Business Day.
2.4 The Company is notified to the Information Commissioner and has not
knowingly breached the Data Protection Xxx 0000 or any applicable data
protection legislation in England or Wales. The Company's data protection
policies are set out in, or attached to, the Disclosure Letter.
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D PROPERTY AND ENVIRONMENT
1 PROPERTY
GENERAL
1.1 The Company does not own, control, use or occupy or have any interest in
any land or building and the Company has not entered into any legally
binding agreement for the purchase of any such interest.
1.2 All original surrender, release, or indemnity documents relating to any
Relevant Land (including the Property) are in the possession of the
Company.
1.3 The Company has not received any written notice or order affecting any
Relevant Land (including the Property) from any government department, any
authority or any third party.
1.4 The Company is not a guarantor of the tenant's covenants in any lease,
including under any authorised guarantee agreement.
1.5 The Company has not surrendered the lease of any leasehold property to the
reversioner without first investigating the reversioner's title and without
receiving from the reversioner an absolute release from the tenant's
covenants in the relevant lease and from all liability arising under the
lease.
1.6 The Company has not assigned or transferred any leasehold property of which
it was the original tenant or in respect of which it entered into a
covenant with the landlord to observe and perform the tenant's covenants
under that lease without receiving a full and effective indemnity in
respect of its liability under that lease or that covenant (as the case may
be).
1.7 The Company has not conveyed or transferred any freehold property in
respect of which it entered into any covenant (including an indemnity
covenant) which continues to bind it without receiving a full and effective
indemnity in respect of its liability under that covenant.
1.8 The Company has not conveyed or transferred any property, whether freehold
or leasehold, which at the time of conveyance or transfer was subject to a
lease, tenancy, licence or agreement for occupation or use without
receiving a full and effective indemnity in respect of its liability under
each relevant lease, tenancy, licence or agreement or under each indemnity
covenant given by it in respect of any occupation lease.
2 ENVIRONMENT
2.1 The Company has not received any written notice of any actual, pending or
threatened actions by Regulatory Authorities or third parties in respect of
any alleged non-compliance with Environmental Law and has at all times
complied in all material respects with all applicable Environmental Laws.
2.2 The Company has at all times held all requisite Environmental Licences (all
of which are (where still required) valid and subsisting) and has at all
times complied with the terms and conditions of such Environmental Licences
in all material respects. So far as the Warrantor is aware, no
Environmental Licence is personal to the Company. So far as the Warrantor
is aware, there are no circumstances likely to give rise to any,
suspension, revocation or material modification of any Environmental
Licence, or which is likely to prejudice the renewal, extension or, where
necessary, transfer of, any such licence.
2.3 So far as the Warrantor is aware, no Dangerous Substance has been used,
disposed of, stored, generated, released, buried, transported, or emitted
at, on, from, under or to any Relevant Land nor, so far as the Warrantor is
aware, has the Company or any other person or entity for which the Company
can be liable, used, disposed of, stored, generated, released, buried,
transported, or
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emitted any Dangerous Substance at, on, from or under any other place, in
each case except where such Dangerous Substances are used, disposed of,
stored, generated, released, buried, transported or emitted in the ordinary
course of the Company's business in accordance with any applicable
Environmental Laws and/or Environmental Licences.
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E TAXATION AND TAX RETURNS
TAXATION
1 As far as the Warrantor is aware, the Company has made all returns and
given or delivered all notices, accounts and information which ought to
have been made to any Taxing Authority and all returns, notices, accounts
and information submitted to any Taxing Authority were when made true and
accurate in all material respects and the Company is not involved in any
dispute with any Taxing Authority concerning any matter likely to
materially affect in any way the liability (whether accrued, contingent or
future) of it to Taxation and the Warrantor is not aware of any matter
which may lead to such dispute.
2 As far as the Warrantor is aware, the Company has duly paid or fully
provided for all Taxation for which it is liable and the Warrantor is not
aware of any circumstances in which interest or penalties in respect of
Taxation not duly paid could be charged against the Company in respect of
any period prior to Completion.
3 No liability of the Company to Taxation, or to account for Taxation, has
arisen since the Accounts Date or will arise up to Completion save for:
(a) corporation tax payable in respect of normal trading profits earned;
(b) income tax deducted or accounted for under PAYE regulations;
(c) national insurance contributions in respect of emoluments; or
(d) value added tax for which it is accountable to any Taxing Authority,
and which has where appropriate been deducted or charged and where due paid
to the appropriate Taxing Authority.
4 The Company has not entered into or been a party to any schemes or
arrangements designed partly or wholly for the purpose of it or (so far as
the Warrantor is aware) any other person avoiding Taxation.
DISTRIBUTIONS AND OTHER PAYMENTS
5 The rents, annual payments and other sums of an income nature paid or
payable by the Company since the Accounts Date, or which the Company is
under an obligation incurred since the Accounts Date to pay in the future
and which are not wholly allowable as deductions or charges in computing
income for the purposes of Corporation Tax (except to the extent that
payments of a similar nature were made prior to the Accounts Date and were
not treated as allowable in preparing the Accounts) do not exceed L500,000.
6 All interest, discounts or premiums payable by the Company in respect of
its loan relationships within the meaning of Chapter II of Part IV of the
Finance Xxx 0000 are capable of being brought into account by the Company
as a debit for the purposes of that Chapter as and to the extent that they
are from time to time recognised in the Company's accounts (assuming that
the accounting policies and methods adopted for the purpose of the Accounts
continue to be so adopted).
CAPITAL ALLOWANCES AND CAPITAL GAINS
7 No balancing charge under the Capital Xxxxxxxxxx Xxx 0000 or the Capital
Allowances Act 2001 (or other legislation relating to any capital
allowances or charge to corporation tax on capital gains) not provided for
or taken into account in computing any provisions in the Accounts would be
made on the Company on the disposal of any pool of assets (that is to say
all those assets expenditure relating to which would be taken into account
in computing whether a balancing charge would arise on a disposal of any
other of those assets) or of any asset not in such a pool, on the
assumption
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that the disposals are made for a consideration equal to the book value
shown in or adopted for the purpose of the Accounts for the assets in the
pool or (as the case may be) for the asset.
8 No event has occurred since the Accounts Date otherwise than in the
ordinary course of business by reason of which any balancing charge will
fall to be made against or any disposal value will fall to be brought into
account by the Company under the Capital Xxxxxxxxxx Xxx 0000 or the Capital
Allowances Act 2001 (or other legislation relating to any capital
allowances).
9 The Company has not claimed any research and development tax relief or tax
credit under the Finance Xxx 0000 or the Finance Xxx 0000.
CAPITAL GAINS
INTANGIBLE ASSETS
10 In this section references to intangible fixed assets mean intangible fixed
assets and goodwill within the meaning of schedule 29 to the Finance Xxx
0000 and to which the provisions of that Schedule apply and references to
an intangible fixed asset shall be construed accordingly.
11 The Disclosure Letter sets out the basis on which debits relating to
expenditure on intangible fixed assets have been taken into account in the
Accounts and, so far as the Warrantor is aware, in relation to any such
expenditure (on intangible fixed assets) incurred since the Accounts Date
debits will, on the basis of facts and circumstances known at the date of
this Agreement be available to the Company. So far as the Warrantor is
aware no circumstances have arisen since the Accounts Date by reason of
which that basis might change.
12 The Company does not own an asset which has ceased to be a chargeable
intangible asset since the Accounts Date in the circumstances described in
paragraph 108 of schedule 29 to the Finance Xxx 0000 and, so far as the
Warrantor is aware, no circumstances have arisen since the Accounts Date
which have required, or will (on the basis of the facts and circumstances
known at the date of this Agreement) require, a credit to be brought into
account by the Company on a revaluation of an intangible fixed asset.
CLOSE COMPANIES
13 The Company is not and has not at any time since incorporation been a close
investment holding company as defined in section 13A Taxes Xxx 0000.
14 No distribution within section 418 Taxes Act 1988 has been made by the
Company since incorporation.
15 No loan or advance made by or debt incurred to or assigned to the Company
falling within the provisions of section 419 Taxes Act 1988 (as extended by
section 422 thereof) is outstanding or has been waived since the Accounts
Date.
GROUPS OF COMPANIES
16 The Company is not and has not since incorporation been a member of a group
of companies as defined in section 170 TCGA 1992 or part 8 of schedule 29
to the Finance Xxx 0000.
OVERSEAS INTERESTS
17 UK Residence
The Company is and has since incorporation been resident in the United
Kingdom for corporation tax purposes and is not and has not been treated as
resident in any other jurisdiction for any Taxation purpose. The Company
has not nor has had a branch, agency or permanent establishment outside the
United Kingdom.
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18 Controlled foreign companies and offshore funds
The Company does not have and has not since incorporation had any interest
in a controlled foreign company as defined in Chapter IV Part XVII Taxes
Act 1988 nor any material interest in an offshore fund as defined in
section 759 Taxes Xxx 0000.
19 Agency for non-residents
The Company has not been and is not assessable to Taxation under section 78
Taxes Management Act 1970 (including that section as modified and applied
for stamp duty reserve tax), section 126 Finance Xxx 0000, schedule 26
Finance Xxx 0000 or under section 42A Taxes Xxx 0000.
SECONDARY LIABILITY
20 The Company is not liable to reimburse or indemnify any person (including a
Taxing Authority) an amount in respect of a Taxation liability (other than
in respect of VAT insurance premium tax and air passenger duty) which is
the primary liability of any other person and which arose as a result of a
transaction, event, act or omission occurring on or before Completion
(including those deemed to have occurred for Taxation purposes on or before
Completion) or by reference to any profits earned on or before Completion.
TAX AVOIDANCE, TRANSACTIONS REQUIRING CLEARANCE ETC.
21 Transactions between persons under common control
No transactions or arrangements involving the Company have taken place or
are in existence which are such that any of the provisions of section 770
to section 773 or schedule 28AA Taxes Xxx 0000 or part 12 of schedule 29 to
the Finance Xxx 0000 have been or could be applied to it so as to give rise
to a liability to Taxation of the Company not provided for in the Accounts.
22 Pension scheme refunds
Since the Accounts Date no payment has been made to the Company to which
section 601 Taxes Act 1988 applies.
STAMP DUTY AND STAMP DUTY LAND TAX (SDLT)
23 All documents to which the Company is a party and which are required to be
stamped with United Kingdom stamp duty in order:
(a) to establish the Company's title to an asset owned by it at
Completion; or
(b) to enable their enforcement by any Group Company,
have been duly stamped.
24 All SDLT payable by the Company has been paid within the periods prescribed
by law, all land transaction returns have been correctly completed, are
true and accurate and not the subject of any dispute with or enquiry from
any Taxing Authority.
VALUE ADDED TAX
25 Registration
The Company is duly registered for the purposes of Value Added Tax with
monthly prescribed accounting periods and no such registration is subject
to any conditions imposed by or agreed with the relevant Taxing Authority
and the Company is not (nor are there any circumstances by virtue of which
it may become) under a duty to make monthly payments on account under the
Value Added Tax (Payments on Account) Order 1993.
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26 VAT group
The Company is not nor has it been treated for Value Added Tax purposes as
a member of any group of companies and there has been no transfer of a
business as a going concern in respect of which the Company could become,
or has at any time since the Accounts Date been, liable under section 44
VATA 1994 nor since the Accounts Date has there been any supply of goods or
services by the Company in respect of which section 43(1) VATA 1994 is
disapplied by sub-section (2A) of that section. No direction has been given
to the Company under paragraph 1 of schedule 9A to VATA 1994 either to the
Company or in circumstances where the Company may be liable for any Value
Added Tax assessed by that direction.
27 Secondary liability
No act or transaction has been effected in consequence of which the Company
is or may be held liable for any Value Added Tax under section 29, section
47, section 48 or section 55 VATA 1994.
28 Compliance
The Company has complied with all statutory provisions, rules, regulations,
orders and directions concerning Value Added Tax.
29 Exemption
The Company is not nor was it partially exempt in its current or preceding
value added tax year and so far as the Warrantor is aware there are no
circumstances by reason of which either regulation 107 or 108 Value Added
Tax Regulations 1995 might apply (or have since the Accounts Date applied)
to the Company.
30 Valuation
No direction has been or so far as the Warrantor is aware could have been
made to the Company under paragraph 1 of schedule 6 or paragraph 1 of
schedule 7 to VATA 1994.
31 Security
The Company has not at any time been required to give security under
paragraph 4 of schedule 11 to VATA 1994.
32 Option to charge VAT on supplies by the Company
The Disclosure Letter contains particulars of any elections to waive
exemption made under schedule 10 to VATA 1994 by (i) the Company or (ii)
any person who is a relevant associate (as defined in paragraph 3(7) of
that schedule) in relation to the Company and all such elections have
effect. The Company has not made an exempt supply in relation to any
property such that it did or (if it wished to elect in future) would need
permission to elect to waive exemption and there is no land or building in
which the Company has an interest where any election to waive exemption is
or may become ineffective by virtue of paragraph 2(3A) or 2(3AA) of the
schedule.
33 Capital Goods Scheme
There is no capital item within the meaning of Part XV of the Value Added
Tax Regulations 1995 (S.I. 1995/2518) in relation to which a liability
under Part XV has arisen or could in future arise on the Company.
34 Interest in the case of official error and repayment supplement
No claims have been made by the Company under section 78 or section 79 VATA
1994. So far as the Warrantor is aware there are no circumstances by virtue
of which an assessment under section 78A VATA 1994 has been or could be
made on the Company.
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35 Bad debt relief
The Company has not made any claim under section 36 VATA 1994. So far as
the Warrantor is aware, there are no circumstances by virtue of which there
could be a clawback of input tax from the Company under section 26A VATA
1994.
36 Inheritance Tax
So far as the Warrantor is aware, there are not in existence any
circumstances whereby any such power as is mentioned in section 212(1)
Inheritance Tax Act 1984 that could so far as the Warrantor is aware be
exercised in relation to any shares, securities or assets of the Company.
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SCHEDULE 4
BUYER WARRANTIES
1 The Buyer is a company duly incorporated and validly existing under the
laws of England and Wales and has the requisite power, capacity and
authority to enter into and perform this Agreement.
2 This Agreement constitutes valid and legally binding obligations of the
Buyer enforceable in accordance with their terms subject to:
(a) limitations arising from the laws of bankruptcy, administration,
liquidation, insolvency, receivership or similar laws affecting
generally the enforcement of creditors' rights;
(b) the effect of general principles of law and equity;
(c) where any obligations of any person are to be performed or observed
outside England and Wales, or by a person subject to the laws of a
jurisdiction outside England and Wales, the possibility that such
obligations may not be enforceable under English law to the extent
that performance or observance thereof would be illegal or contrary to
public policy under the laws of any such jurisdiction;
(d) the effect of the Limitation Xxx 0000; and
(e) the laws of any jurisdiction outside England.
3 Neither the entry into this Agreement nor the implementation of the
transactions contemplated by it will result in:
(a) a breach of any provision of the memorandum and articles of
association of the Buyer;
(b) a breach of, or give rise to a default under, any contract or other
instrument to which the Buyer is a party or by which it is bound; or
(c) a breach of any applicable laws or regulations or of any order, decree
or judgment of any court, governmental agency or regulatory authority
applicable to the Buyer.
4 With the exception of those matters referred to in clause 5 no consent or
approval of, authorisation or order of any court or any governmental,
regulatory or other authority which has not been obtained or made at the
date of this Agreement is required by the Buyer for the execution or
implementation of this Agreement.
5
5.1 The Buyer has not:
(a) entered into any arrangement or composition for the benefit of its
creditors or any of them nor has it (or its agent or nominee) convened
a meeting of its creditors;
(b) submitted to its creditors or any of them a proposal under Part I of
the Insolvency Xxx 0000;
(c) entered into any arrangement, scheme, compromise, moratorium or
composition with any of its creditors (whether under Part I of the
Insolvency Xxx 0000 or otherwise);
(d) made an application to the Court under section 425 of the Companies
Xxx 0000 or resolved to make such an application;
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(e) presented a petition for winding up nor has a petition for winding up
been presented against it which has not been withdrawn within 14 days,
nor has a winding up order been made against it or a provisional
liquidator appointed;
(f) been the subject of a resolution for voluntary winding up (other than
a voluntary winding up while solvent for the purposes of an
amalgamation or reconstruction which has the prior written approval of
the other party) nor has a meeting of its shareholders been called to
consider a resolution for winding up;
(g) had an administrative receiver or receiver appointed in respect of all
or any of its assets or the assets of any guarantor;
(h) had a written demand for the payment of sums due served upon it in
accordance with section 123(1)(a) of the Insolvency Xxx 0000 which has
not been settled or disputed.
5.2 The Buyer is not:
(a) the subject of an interim order under Schedule 1B of the Insolvency
Xxx 0000 nor has it made an application to Court for such an order;
(b) the subject of an administration order, nor has a resolution been
passed by the Directors or shareholders for the presentation of a
petition for such an order nor has a petition for such an order been
presented or come into force;
(c) subject to a resolution passed by the Directors or the shareholders
for notice of appointment of an administrator to be filed with the
Court, nor has a notice of appointment of an administrator been filed
with the Court by the holder of a floating charge or by the Company or
its Directors.
5.3 No member of the Buyer's Group is:
(a) a party to any litigation, arbitration or administrative proceedings
which are in progress or of which it has been notified in writing by
or against or concerning it or any of its assets; nor
(b) so far as the directors of the Buyer are aware, the subject of any
governmental, regulatory or official investigation or enquiry which is
in progress or of which it has been notified in writing,
which in each case has or is likely to have a material adverse effect on the
Buyer's ability to execute, deliver and perform its obligations under this
Agreement.
5.4 The Buyer has available sufficient authorised and unissued share capital to
permit the issue of the Initial Consideration Shares and the Retained
Consideration Shares in accordance with the terms of this Agreement.
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SCHEDULE 5
PART 1: LIMITATIONS ON LIABILITY UNDER THE PRINCIPAL WARRANTIES
The following limitations only relate to Principal Warranty Claims:-
1 SCOPE
1.1 The Warrantor shall only be liable in respect of a Principal Warranty Claim
if such Principal Warranty Claim becomes a Determined Claim which shall
mean a claim:
(a) which has been resolved by written agreement between the Sellers and
the Buyer; or
(b) which is the subject of an order as to both liability and quantum made
by a court or tribunal of competent jurisdiction or arbitration.
1.2 Nothing in this Schedule shall have the effect of excluding, limiting or
restricting any liability of the Warrantor in respect of a Principal
Warranty Claim arising as a result of fraud or wilful non-disclosure on the
part of the Warrantor.
2 CAP ON WARRANTOR'S LIABILITY
2.1 The aggregate liability of the Warrantor in respect of all and any
Principal Warranty Claims shall not exceed the Warranty Claim Limit.
2.2 In the event that the Buyer brings a Principal Warranty Claim against the
Warrantor and such Principal Warranty Claim becomes a Determined Claim,
then such Principal Warranty Claim shall be satisfied (and shall only be
capable of being satisfied) at the Warranty Claim Ratio by both a reduction
in the number of Retained Consideration Shares to be allotted and issued to
Apax and Wellcome Trust by the Buyer (calculated in accordance with clause
4) and by a reduction in the Deferred Consideration (calculated in
accordance with Clause 3.6), provided that the aggregate amount available
to satisfy all Principal Warranty Claims shall always be limited to:
(a) a reduction in the number of Retained Consideration Shares to be
allocated and issued to Apax and the Wellcome Trust equal to such
number of Retained Consideration Shares, which at the Issue Price have
an aggregate value of no more than L***; plus
(b) a reduction in the Deferred Consideration of no more than L***,
and
provided further that the aggregate amount available to satisfy all
Principal Warranty Claims, and any Ancillary Claims to be satisfied
pursuant to paragraph 4 of Part 2 of Schedule 8, shall not exceed the
Warranty Claim Limit.
Accordingly the Warrantor shall have no financial liability for, and the
Buyer shall not be able to seek any financial payment from the Warrantor
(or his estate or personal representatives) in respect of, any Principal
Warranty Claim.
3 TIME LIMITS FOR MAKING CLAIMS
3.1 No Principal Warranty Claim may be made against the Warrantor unless notice
(complying with the provisions of paragraph 3.2 below) of such Principal
Warranty Claim is served on the Warrantor (but not his estate or personal
representatives, if relevant) and Apax and Wellcome Trust in writing as
soon as practicable after the Buyer becomes aware of the circumstances
giving rise to a Principal Warranty Claim and, in any event before the day
falling on the first anniversary of Completion provided that, save in
respect to a Principal Warranty Claim to which subparagraph 4 applies, the
liability of the Warrantor shall cease absolutely unless within six months
of service of such notice legal proceedings in respect of such Principal
Warranty Claim have been properly issued and validly served on the
Warrantor.
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3.2 A notice of Principal Warranty Claim shall specify in reasonable detail the
specific matter in respect of which the Principal Warranty Claim is made
and a calculation of the amount claimed.
4 CONTINGENT LIABILITIES
No Principal Warranty Claim may be made against the Warrantor based upon a
liability which is contingent unless and until such contingent liability
becomes an actual liability.
5 THRESHOLD AND DE MINIMIS
5.1 The Warrantor shall not be liable in respect of any Principal Warranty
Claim unless the aggregate liability for all Principal Warranty Claims
exceeds L150,000 (THE THRESHOLD), in which case the Buyer shall be
entitled to all amounts resulting from those Principal Warranty Claims and
not just the excess over the Threshold.
5.2 In calculating liability for Principal Warranty Claims for the purposes of
paragraph 5.1 above, any Principal Warranty Claim which is less than
L*** shall be disregarded and the Warrantor shall not be liable for
any such disregarded Claims.
5.3 If more than one Principal Warranty Claim arises from, or is caused by, the
same or substantially the same matter, matters, circumstance or
circumstances and the aggregate amount of damages to which the Buyer would
be entitled as a result of those Principal Warranty Claims is equal to or
exceeds the sum specified in subparagraph 5.2, subparagraph 5.2 shall not
apply to any of those Principal Warranty Claims.
6 CHANGES IN LEGISLATION
The Warrantor shall not be liable in respect of a Principal Warranty Claim
if such Principal Warranty Claim would not have arisen but for, or to the
extent it is increased directly or indirectly as a result of:
(a) a change in legislation or law announced after the date of this
Agreement; or
(b) an increase in the Taxation rates or an imposition of Taxation in each
case not actually or prospectively in force at the date of this
Agreement; or
(c) any change or withdrawal after the date of this Agreement of any
published practice or concession of any Taxing Authority; or
(d) a change after Completion in the accounting policies adopted by the
Company (other than a change made in order to comply with the Accounts
Standards in force at the date of this Agreement) including any change
to the date to which its accounts are prepared.
7 ACTS OF BUYER
The Warrantor shall not be liable in respect of a Principal Warranty Claim
to the extent that such Principal Warranty Claim is directly attributable
to, or to the extent it is increased directly or indirectly as a result of:
(a) any act, omission, transaction or arrangement carried out at the
request of or with the approval of the Buyer before or at Completion;
or
(b) any act, omission, transaction or arrangement carried out by or on
behalf of the Buyer or by or on behalf of a member of the Buyer's
Group outside the ordinary course of business after Completion.
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8 MITIGATION
Nothing in this Agreement shall be deemed to relieve the Buyer from any
common law duty to take reasonable steps to mitigate any loss or damage
suffered or incurred by it as a result of any of the Principal Warranties
being untrue or inaccurate.
9 RECOVERY FROM ANOTHER PERSON
9.1 If the Buyer or any member of the Buyer's Group receives (whether by
payment, discount, credit, relief or otherwise) from a third party a sum
which would not have been received but for the matter or circumstance
giving rise to the relevant Principal Warranty Claim before the Principal
Warranty Claim is settled, such sum (less any reasonable costs incurred in
obtaining such sum and less any Taxation attributable to the recovery after
taking account of any tax relief available in respect of any matter giving
rise to the Principal Warranty Claim) shall to that extent reduce or
satisfy, as the case may be, such Principal Warranty Claim.
9.2 If the Sellers resolve a Principal Warranty Claim in accordance with
paragraph 1.1(a) which results in the number of Retained Consideration
Shares being reduced in accordance with clauses 4.5-4.7 and the Buyer
subsequently within six months of the Principal Warranty Claim being so
determined (the last day of such 6 month period being the "Settlement
Date") receives from a third party a sum which would not have been received
but for the matter or circumstance giving rise to the relevant Principal
Warranty Claim and receipt of this amount was not taken into account when
settling the Principal Warranty Claim, then the Buyer shall within 5
Business Days of the Settlement Date issue such number of the balance (if
any) of the Retained Consideration Shares as is equal to the number
obtained by dividing such sum received by the Buyer (less any reasonable
costs incurred in obtaining such sum and less any Taxation attributable to
the recovery after taking account of any tax relief available in respect of
any matter giving rise to the Principal Warranty Claim) (subject to a
maximum amount equal to the Principal Warranty Claim settled) by the Issue
Price.
10 COMPLETION STATEMENT
No matter or circumstance shall be subject to a Principal Warranty Claim to
the extent that such matter has been taken into account in the Completion
Statement.
11 NOTICE OF CLAIMS
If a member of the Buyer's Group becomes aware of or is notified in writing
of circumstances giving rise to a claim or of an entitlement to recover
(whether by payment, discount, credit, relief or otherwise) from a third
party an amount which relates to the subject matter of a Principal Warranty
Claim the Buyer shall as soon as reasonably practicable give written notice
to and consult with the Sellers in respect of the claim, circumstance or
entitlement and continue to give the Sellers reasonably regular updates on
the progress of such claim. Such notice to the Sellers shall specify in
reasonable detail the specific matter in respect of which the claim,
circumstance or entitlement has arisen and a calculation of the amount
claimed or recoverable from the relevant third party. The Buyer will keep
the Sellers informed of any material developments relating to the claim,
circumstance or entitlement.
12 TAXATION
12.1 No Principal Warranty Claim may be made against the Warrantor:
(a) to the extent that the Principal Warranty Claim is in respect of
Taxation and comprises Taxation payable on income, profits or gains
actually earned, accrued or received in the ordinary course of
business of the Company between the Accounts Date and Completion; or
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(b) to the extent that the Principal Warranty Claim is in respect of
Taxation and such Taxation arises from a transaction in the ordinary
course of business of the Company between the Accounts Date and
Completion; or
(c) to the extent that the Principal Warranty Claim is in respect of
Taxation and such Taxation would not have arisen but for:
(i) a disclaimer, claim or election made or notice or consent given
after Completion by a member of the Buyer's Group otherwise than
at the request of the Warrantor; or
(ii) a failure or omission by the Company to make any claim, election,
surrender or disclaimer or give any notice or consent or do any
other thing after Completion the making or giving or doing of
which was taken into account or assumed in computing the
provision for Taxation (including the provision for deferred
Taxation) in the Accounts and in respect of which the Warrantor
had provided to the Buyer written details of such claims,
elections, surrenders or disclaimers, notices or consents, or
doing of any other thing not less than 10 Business Days before
the expiry of any relevant time limits in respect of the same; or
(d) to the extent that the Principal Warranty Claim is in respect of
Taxation and such Taxation could be relieved or mitigated by any loss,
relief, allowance, exemption, set off or credit (other than any loss,
relief, allowance, exemption, set off or credit or right to repayment
of Taxation (including any repayment supplement) which is not
available to the Company before Completion but is available to the
Company after Completion as a result of any event or transaction
occurring after Completion) in computing or against income, profits,
gains or Taxation; or
(e) to the extent that the Principal Warranty Claim is in respect of
Taxation and such Taxation was discharged (whether by payment or by
the utilisation of any relief, allowance or credit in respect of
Taxation) prior to Completion; or
(f) to the extent that the Principal Warranty Claim is in respect of VAT
which has been charged and a tax invoice issued but which is not yet
due to HM Revenue and Customs; or
(g) to the extent that the Principal Warranty Claim arises as a result of
unutilised reliefs, allowances or credits (if any) of the Company as
at or arising before Completion proving to be unavailable or otherwise
incapable of being utilised in reducing the income, profits or gains
of the Company earned, accrued or received on or after Completion or
the Taxation liabilities of the Company in respect of any period after
Completion.
12.2 In calculating the liability of the Warrantor for any Principal Warranty
Claim in respect of Taxation, there shall be taken into account the amount
by which any Taxation for which the Buyer or any member of the Buyer's
Group is now or may in the future be accountable or liable to be assessed
is reduced or extinguished as a result of the matter giving rise to such
liability and any repayment of Taxation which would not have arisen but for
the matter giving rise to such liability.
13 NO DOUBLE RECOVERY
The Buyer shall not be entitled to recover in respect of the Principal
Warranties more than once for the same loss.
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PART 2: LIMITATIONS ON LIABILITY UNDER THE SELLERS' WARRANTIES AND BUYER
WARRANTIES
1 SCOPE
1.1 No party to this Agreement shall be entitled to claim under the Sellers'
Warranties or Buyer Warranties for any indirect or consequential loss or
loss of profit.
1.2 A party to this Agreement shall only be liable in respect of a Buyer
Capacity Claim or Sellers' Capacity Claim if and to the extent that such
Capacity Claim becomes a Determined Claim which shall mean a Capacity
Claim:
(a) which has been resolved by written agreement between the relevant
Seller(s) and the Buyer; or
(b) which is the subject of an order as to both liability and quantum made
by a court or tribunal of competent jurisdiction or arbitration.
1.3 Nothing in this Schedule shall have the effect of excluding, limiting or
restricting any liability of the relevant party in respect of a Claim under
either the Buyer Warranties or the Sellers' Warranties arising as a result
of fraud by that party.
2 CAP ON BUYER'S LIABILITY
2.1 The aggregate liability of the Buyer to the Sellers in respect of all and
any Buyer Capacity Claims (together with the proper and reasonable costs of
recovery of any damages for breach of warranty incurred by or on behalf of
the Sellers, including stamp duty in respect of the transfer of any shares)
shall not exceed an amount equal to the amount of the Consideration Price
(calculated, where relevant, by reference to the Issue Price) paid by the
Buyer at the time such Claim becomes a Determined Claim.
3 CAP ON SELLERS' LIABILITY
3.1 The aggregate liability of each of Apax and Wellcome Trust in respect of
all and any Sellers' Capacity Claims (when aggregated with any other
Claims) shall, save as provided below, not exceed the amount of the
Consideration Price (calculated, where relevant, by reference to the Issue
Price) paid by Buyer to the relevant Seller at the time such Seller's
Capacity Claim becomes a Determined Claim (the "Paid Amount").
3.2 If, and to the extent that, at the time such Sellers' Capacity Claim
becomes a Determined Claim:
(a) any of the Retained Consideration or the Deferred Consideration
remains to be paid by the Buyer; and
(b) the amount of the Determined Claim exceeds the Paid Amount,
then (i) firstly, the number of Retained Consideration Shares remaining to
be issued to each of Apax and Wellcome Trust pursuant to this Agreement,
and (ii) then, the amount of the Deferred Consideration, shall be reduced
accordingly.
3.3 The aggregate liability of the Warrantor in respect of all and any Sellers'
Capacity Claims (when aggregated with any other Claims) shall not exceed
the amount of the Consideration Price received by the Warrantor as at the
date the Seller's Capacity Claim becomes a Determined Claim.
4 TIME LIMITS FOR MAKING CLAIMS
4.1 No claim in respect of the Buyer Warranties and the Sellers' Warranties may
be made against any party to this Agreement unless notice (complying with
the provisions of paragraph 4.2 below) of such claim is served on the
relevant party in writing as soon as practicable after the circumstances
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giving rise to a claim become apparent and, in any event, before the date
falling 12 months following the date of Completion provided that the
liability of such party shall cease absolutely unless within six months of
service of such notice legal proceedings in respect of such claim in
respect of the Buyer Warranties and the Sellers' Warranties have been
properly issued and validly served on the relevant party and/or such claim
has been pursued with reasonable diligence.
4.2 A notice of claim in respect of the Buyer Warranties and the Sellers'
Warranties shall specify in reasonable detail the specific matter in
respect of which the claim is made and a calculation of the amount claimed.
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SCHEDULE 6
PRE COMPLETION COVENANTS
1 ACCESS
From the date of this Agreement until Completion the Sellers shall:
(a) procure that the Buyer, its agents and representatives are given full
access to the Property and to the books and records (excluding minutes
of the Board Meetings of the Company) of the Company during normal
business hours on any Business Day and on reasonable notice to the
Sellers; and
(b) provide such information regarding the Business and affairs of the
Company as the Buyer may reasonably require.
2 CONDUCT OF BUSINESS
2.1 From the date of this Agreement until Completion each Seller shall exercise
all rights and powers available to him or it (as the case may be) so as to
procure that, except with the written consent of the Buyer, the Company
shall not:
(a) incur any expenditure in respect of:
(i) any Internal Cost in excess of L20,000 per item or L100,000
in aggregate other than
a) expenditure expressly specified in the Budget in
respect of any Internal Cost; and
b) any expenditure incurred pursuant to obligations under
the RB Contract; and
c) expenditure relating to the Property Costs directly
associated with the termination of the Lease.
(ii) any External Cost in excess of L50,000 per item; or
(b) dispose of or grant any licence in respect of any interest in its
Intellectual Property other than pursuant to an agreement
relating to the transfer of materials or a confidentiality
agreement entered into in the ordinary course of its business; or
(c) dispose of or create any Encumbrance in respect of any part of
its assets except in the ordinary course of trading; or
(d) borrow any money or make any payments out of or drawings on its
bank account(s) (except routine payments or drawings); or
(e) enter into any unusual or abnormal contract or commitment or:
(i) grant any lease or third party right in respect of the
Property or transfer or otherwise dispose of the Property
other than as specifically contemplated by this Agreement;
or
(ii) make or prepay any loan; or
(iii) enter into any leasing, hire purchase or other agreement or
arrangement for payment on deferred terms; or
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(iv) fail to observe and perform any term or condition of, or
waive any rights under, any contract or arrangement; or
(v) contravene any statute, order, regulation or the like; or
(vi) do or omit to do anything which might result in the
termination, revocation, suspension, modification or
non-renewal of any licence or consent held by it; or
(vii) grant any power of attorney; or
(f) declare, make or pay any dividend or other distribution; or
(g) grant, issue or redeem any mortgage, charge, debenture or other
security or give any guarantee or indemnity; or
(h) make any change in the terms and conditions of employment of any of
its Directors or Employees or employ or terminate (except for good
cause) the employment of any person other than as specifically
contemplated by this Agreement; or
(i) make, or announce to any person any proposal to make, any change or
addition to any Retirement Benefit of or in respect of any of its
directors, employees, former directors or former employees (or any
dependant of any such person) other than any change required by law or
proposed change of which full and accurate particulars are set out in
the Disclosure Letter; or
(j) grant or create, or announce to any person any proposal to grant or
create, any additional Retirement Benefit; or
(k) permit any of its insurances to lapse or do anything which would make
any policy of insurance void or voidable; or
(l) create, issue, purchase or redeem any class of share or loan capital
other than in accordance with the terms of conversion of the Apax
Loan; or
(m) pass any resolution of its shareholders or any class of shareholders,
whether in general meeting or otherwise; or
(n) form any subsidiary or acquire shares in any company or participate
in, or terminate any participation in, any partnership or joint
venture; or
(o) agree, conditionally or otherwise, to do any of the foregoing; or
(p) in any other way depart from the ordinary course of its day-to-day
trading.
2.2 Until Completion the Sellers shall jointly exercise all powers available to
them so as to procure that the Company shall maintain the policies for the
payment of creditors and the collection of debts of the Company which have
been applied during the Financial Year ended on the Accounts Date and, in
particular, shall procure that:
(a) there is no unusual postponement of the payment of creditors or
unusual acceleration of the collection of debts in either case having
regard to the policies applied for such payment and collection
prevailing in the Financial Year ended on the Accounts Date; and
(b) no discounts or other forms of inducements or incentives whatsoever
are offered or made available by the Company to debtors in relation
to, or on account of, early payment other than pursuant to
arrangements in place as at the date of this Agreement (if any) which
have been notified to the Buyer.
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2.3 From the date of this Agreement Apax will not exercise any powers or rights
whether contained in the Articles of Association or otherwise to appoint
any person as a director of the Company or to remove any Director.
2.4 From the date of this Agreement the Sellers shall not convert, consolidate
or sub-divide any share capital of the Company or otherwise pass any
resolution in connection with the share capital of the Company (save in
connection with the conversion of the Apax Loan).
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SCHEDULE 8
INDEMNITIES
PART 1
TITLE INDEMNITY
1 Apax and Wellcome Trust each hereby agrees to indemnify the Buyer in the
Relevant Proportions against all costs, liabilities, claims, demands and
expenses (including all reasonable legal and other professional fees and
expenses) which may be sustained or suffered by the Buyer or the Company in
respect of any Minority Shareholder Claim.
2 The aggregate liability of Apax and Wellcome Trust in respect of all and
any Title Claims shall be limited in the Relevant Proportions to an amount
equal to 'X' per cent of L*** where 'X' is calculated as follows:
A
X = 100 x ---
B
Where:
A = the number of Shares held by the Minority Shareholders immediately
prior to Completion
B = the number of Shares in issue at Completion
3 No Title Claim may be made against either Apax or Wellcome Trust unless
notice (complying with the provisions of paragraph 4 below) of such claim
is served on both Apax and Wellcome Trust in writing as soon as reasonably
practicable after the circumstances giving rise to such claim become known
to the Buyer and, in any event, before the expiry of 6 months from the date
of Completion provided that the liability of Apax and Wellcome Trust in
respect of such claim shall cease absolutely unless within six months of
service of such notice legal proceedings in respect of such claim have been
properly issued and validly served on both Apax and Wellcome Trust.
4 A notice of claim under paragraph 1 shall specify in reasonable detail the
specific matter in respect of which the claim is made and a calculation of
the amount claimed.
5 The conduct of all claims under this Part 1 shall be governed by the terms
of Part 3 below.
6 In the event that the Buyer brings a Title Claim against Apax and/or
Welcome Trust, such Title Claim shall be satisfied first by a reduction in
the number of Retained Consideration Shares, calculated in accordance with
clause 4.
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PART 2
PROPERTY AND REDUNDANCY INDEMNITY
1 Apax and Wellcome Trust each hereby agrees to indemnify the Buyer in the
Relevant Proportions against all reasonable costs, liabilities claims,
demands and expenses (including all reasonable legal and other professional
fees and expenses) which may be sustained or suffered by the Buyer or the
Company to the extent not taken into account in the Completion Statement:
(a) in relation to Property Costs; and
(b) as a result of Redundancy Costs.
2 The aggregate liability of Apax and Wellcome Trust in respect of all and
any Ancillary Claims shall be limited to a maximum amount equal to L***
but subject to the provisions of paragraph 4 below.
3 In the event that the Buyer brings an Ancillary Claim against Apax and
Wellcome Trust, such claim shall be satisfied in the following order:
(a) firstly, by a reduction in the number of Retained Consideration Shares
to be allotted and issued to Apax and Wellcome Trust by the Buyer
calculated in accordance with clause 4, up to a maximum reduction of
number of Retained Consideration Shares which at the Issue Price are
of a value equivalent to L***; and
(b) then as provided in paragraph 4 below.
Accordingly Apax and Wellcome Trust shall have no direct payment obligation
for, and the Buyer shall not be able to seek any financial payment from
Apax and Wellcome Trust in respect of, any such Ancillary Claim.
4 To the extent that the aggregate liability of Apax and Wellcome Trust in
respect of Ancillary Claims exceeds L***, Apax and Wellcome Trust agree to
satisfy any such Ancillary Claim first by a reduction in the number of
Retained Consideration Shares to be allotted to Apax and Wellcome Trust
calculated in accordance with Clause 4 and thereafter by a reduction in the
Deferred Consideration be paid to Apax and Wellcome Trust in accordance
with Clause 3.5 of no more than L***;
Provided that, the aggregate amount available to satisfy all Principal
Warranty Claims together with any such Ancillary Claims to be satisfied
pursuant to this paragraph 4 shall not exceed the Warranty Claim Limit.
5 No Ancillary Claim may be made against Apax and Wellcome Trust unless
notice (complying with the provisions of paragraph 6 below) of such claim
is served on each of Apax and Wellcome Trust in writing as soon as
reasonably practicable after the circumstances giving rise to a Ancillary
Claim become known to the Buyer and, in any event, before:
(a) in respect of any claim in relation to Property Costs, the day falling
12 months from the date of Completion; and
(b) in respect of any claim in relation to Redundancy Costs, the day
falling 14 days from the later of:
(i) 3 months from the date of Completion;
(ii) 3 months from the date of termination of the relevant Employee's
employment; and
(iii) such other time and date as is determined by an employment
tribunal to be the final date for service of proceedings on the
Company by the relevant Employee,
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provided that the liability of Apax and Wellcome Trust shall cease
absolutely unless within six months of service of such notice legal
proceedings in respect of such Ancillary Claim have been properly issued
and validly served on each of Apax and Wellcome Trust.
6 A notice of Ancillary Claim shall specify in reasonable detail the specific
matter in respect of which the Ancillary Claim is made and a calculation of
the amount claimed.
7 The conduct of all claims under this Part 2 shall be governed by the terms
of Part 3 below.
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PART 3
CONDUCT OF TITLE CLAIMS AND ANCILLARY CLAIMS
1 For so long as, and to the extent that, the Buyer is entitled to make a
Title Claim or Ancillary Claim under this Agreement, if a member of the
Buyer's Group becomes aware of any claim or any matter or circumstance
which might give rise to a Title Claim or an Ancillary Claim or of an
entitlement to recover (whether by payment, discount, credit, relief or
otherwise) from a third party an amount which relates to the subject matter
of such a claim:
(a) the Buyer shall promptly give written notice to and consult with both
Apax and Wellcome Trust in respect of the claim, matter, circumstance
or entitlement;
(b) the Buyer shall, and shall procure that each member of the Buyer's
Group shall:
(i) at the written request and the cost of both Apax and Wellcome
Trust take such action or (at Apax and Wellcome Trust's option)
permit Apax and Wellcome Trust to take such action as they
consider appropriate to avoid, dispute, resist, appeal, defend,
compromise or settle the claim (including, without limitation,
making any counterclaims or other claims against third parties)
and any related adjudication or proceedings, and to conduct
matters relating thereto including negotiations or appeals,
subject to the Buyer and/or the relevant member of the Buyer's
Group being indemnified for all reasonable costs and expenses;
(ii) provide to Apax and Wellcome Trust and its advisers reasonable
access to premises and personnel and to relevant assets,
documents and records within each member of the Buyer's Group's
power or control that are reasonably required for the purposes of
investigating the matter or entitlement which allegedly gives
rise to the claim (save for documents which are privileged from
production to the Sellers); and
(iii) (use reasonable efforts to preserve all documents, records,
correspondence, accounts, electronically stored data and other
information relevant to a matter which has given rise to a claim.
(c) Apax and Wellcome Trust (at their cost) may, subject to providing
reasonable notice to the Buyer and complying with the reasonable
requests of the Buyer and subject to any duty of confidentiality owed
by the Buyer to any other person, examine and take copies of the
documents or records, and photograph the premises or assets to which
they are permitted access under paragraph 1.1(b)(ii) above.
2 If a claim is as a result of, or in connection with, a claim by or a
liability to a third party then the Buyer shall and shall procure that each
member of the Buyer's Group shall make no admission of liability in respect
of, or compromise, dispose of or settle, such claim without the written
consent of both Apax and Wellcome Trust.
3 Apax and Wellcome Trust shall only be liable in respect of a claim under
either paragraph 1 of part 1 or paragraph 1 of part 2 of this schedule if
and to the extent that such claim becomes a Determined Claim which shall
mean a claim:
(a) which has been resolved by written agreement between each of Apax and
Wellcome Trust and the Buyer; or
(b) which is the subject of an order as to both liability and quantum made
by a court or tribunal of competent jurisdiction or arbitration.
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ATTESTATIONS
EXECUTED by Apax Partners Europe Managers Ltd on behalf of APAX EUROPE V - A,
L.P. acting by
-------------------------------------
Signatory
-------------------------------------
Print name of signatory
EXECUTED by Apax Partners Europe Managers Ltd on behalf of APAX EUROPE V - B,
L.P. acting by
-------------------------------------
Signatory
-------------------------------------
Print name of signatory
EXECUTED by Apax Partners Europe Managers Ltd on behalf of APAX EUROPE V - C
GmbH & Co. KG acting by
-------------------------------------
Signatory
-------------------------------------
Print name of signatory
EXECUTED by Apax Partners Europe Managers Ltd on behalf of APAX EUROPE V - D,
L.P. acting by
-------------------------------------
Signatory
------------------------------------- ----------------------------------------
Print name of signatory Print name of signatory
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EXECUTED by Apax Partners Europe Managers Ltd on behalf of APAX EUROPE V - E,
L.P. acting by
-------------------------------------
Signatory
-------------------------------------
Print name of signatory
EXECUTED by Apax Partners Europe Managers Ltd on behalf of APAX EUROPE V - F,
C.V. acting by
-------------------------------------
Signatory
-------------------------------------
Print name of signatory
EXECUTED by Apax Partners Europe Managers Ltd on behalf of APAX EUROPE V - G,
C.V. acting by
-------------------------------------
Signatory
-------------------------------------
Print name of signatory
EXECUTED by Apax Partners Europe Managers Ltd on behalf of APAX EUROPE V - 1,
L.P. acting by
-------------------------------------
Signatory
-------------------------------------
Print name of signatory
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EXECUTED by Apax Partners Europe Managers Ltd on behalf of APAX EUROPE V - 2,
L.P. acting by
-------------------------------------
Signatory
-------------------------------------
Print name of signatory
EXECUTED by The Wellcome Trust Limited as trustee for and on behalf of the
Wellcome Trust acting by
-------------------------------------
its Attorney Xxxxxx Xxxxxxxxx
-------------------------------------
Print name of signatory
Signed by:
-------------------------------------
-------------------------------------
Print name of signatory
For and on behalf of VERNALIS PLC
Signed by:
-------------------------------------
XXXXXX XXXXX XXXXXXX
Signed by:
-------------------------------------
-------------------------------------
Print name of signatory
For and on behalf of SILVERADO PLC
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