DATED FEBRUARY 17, 2010
Exhibit
2.1
DATED FEBRUARY
17, 2010
-
and -
-and-
(3)
EXCELSYN LIMITED
-and-
(4)
EXCELSYN MOLECULAR DEVELOPMENT LIMITED
share
capital of Excelsyn Limited
CONTENTS
|
DEFINITIONS
AND INTERPRETATION
|
2
|
||
|
2.
|
SALE
AND PURCHASE OF SHARES
|
7
|
|
|
3.
|
CONSIDERATION
|
7
|
|
|
4.
|
COMPLETION
|
9
|
|
|
5.
|
WARRANTIES
|
10
|
|
|
6.
|
LIMITATION
ON THE VENDORS' LIABILITY
|
12
|
|
|
7.
|
INDEMNITY
|
15
|
|
|
8.
|
VENDORS'
COVENANTS
|
15
|
|
|
9.
|
TAXATION
|
17
|
|
|
10.
|
TRANSFER
OF ASSETS
|
17
|
|
|
11.
|
VENDORS'
AGENT
|
17
|
|
|
12.
|
FURTHER
ASSURANCE AND ATTORNEY
|
18
|
|
|
13.
|
INFORMATION
|
18
|
|
|
14.
|
XXX
XXXXX'X COVENANTS
|
18
|
|
|
15.
|
ANNOUNCEMENTS
|
19
|
|
|
16.
|
COSTS
|
19
|
|
|
17.
|
SUCCESSORS
AND ASSIGNMENT
|
19
|
|
|
18.
|
ENTIRE
AGREEMENT
|
19
|
|
|
19.
|
VARIATIONS
|
20
|
|
|
20.
|
WAIVER
|
20
|
|
|
21.
|
AGREEMENT
CONTINUES IN FORCE
|
20
|
|
|
22.
|
SEVERABILITY
|
20
|
|
|
23.
|
NOTICES
|
20
|
|
|
24.
|
COUNTERPARTS
|
20
|
|
|
25.
|
THIRD
PARTY RIGHTS
|
20
|
|
|
26.
|
GOVERNING
LAW AND JURISDICTION
|
21
|
|
SCHEDULE
1
|
|||
|
Details
of the Vendors, the Shares and the Consideration
|
|||
|
SCHEDULE
2
|
|||
|
Part 1 The
Company
|
|||
|
Part 2 The
Subsidiary
|
|||
|
SCHEDULE
3
|
|||
|
The
Warranties
|
|||
|
Part 1 General
|
|||
|
Part 2 Accounts
and financial
|
|||
|
Part 3 Commercial
and trading
|
|||
|
Part 4 Employees
|
|||
|
Part 5 Pensions
|
|||
|
Part 6 Properties
|
|||
|
Part 7 Environmental
|
|||
|
Part 8 Corporate
Vendor Warranties
|
|||
|
SCHEDULE
4
|
|||
|
Tax
|
|||
|
Part
1 - Tax Covenant
|
|||
|
Part
2
|
|||
|
Tax
Warranties
|
|||
|
SCHEDULE
5
|
|||
|
Completion
|
|||
|
SCHEDULE
6
|
|||
|
The
Properties
|
|||
|
SCHEDULE
7
|
|||
|
Part 1 Completion
Accounts
|
|||
|
Part 2 Expert
determination
|
|||
|
Part 3 Pro
formas
|
|||
|
Part 4 Specific
bases of preparation
|
|||
Agreed
form documents
|
1.
|
Completion
Board Minutes of the Company and the Subsidiary
|
|
2.
|
Management
Accounts
|
|
3.
|
Power
of Attorney
|
|
4.
|
Resignations
of Directors and Secretary
|
|
5.
|
Resignation
of Auditors
|
|
6.
|
Employment
Agreements
|
|
7.
|
Consultancy
agreement
|
|
8.
|
Release(s)
of liabilities owed to the Vendors
|
|
9.
|
Statement
of bank accounts and balances
|
|
10.
|
Transfer
Agreement
|
|
11.
|
Escrow
Account Letter
|
|
12.
|
Waste
Removal Programme
|
|
13.
|
Transfer
of subsidiaries documentation
|
|
14.
|
Legal
opinion
|
|
15.
|
Purchaser's
Accounting Policies
|
BETWEEN:
|
(1)
|
THE PERSONS whose names
and addresses are set out in schedule 1 ("Vendors");
and
|
|
(2)
|
ALBANY MOLECULAR RESEARCH, INC
a company registered in Delaware whose principal executive offices
are at 00 Xxxxxxxxx Xxxxxx, XX Xxx 00000, Xxxxxx, Xxx Xxxx, XXX ("Purchaser");
and
|
|
(3)
|
EXCELSYN
LIMITED a company registered in England with number
05045523 and whose registered office is at Glengairn South Drive
Woolsington Newcastle-upon-Tyne, NE 13 8AN ("Company")
and
|
|
(4)
|
EXCELSYN MOLECULAR DEVELOPMENT
LIMITED a company registered in England with registered number
05125002 and whose registered office is at Xxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxx XX0 0XX ("Subsidiary").
|
BACKGROUND
|
A.
|
The
Company is a private company limited by shares. Further
information relating to the Company and its Subsidiary is set out in
schedule 2.
|
|
B.
|
The
Vendors are the legal and beneficial owners of the numbers of Shares set
opposite their respective names in column (2) of
schedule 1.
|
|
C.
|
The
Vendors have agreed to sell and the Purchaser has agreed to purchase the
Shares for the consideration and upon the terms and conditions set out in
this agreement.
|
|
D.
|
The
Company and the Subsidiary have joined as parties to this Agreement for
the purpose of directing that the Company Debt and the Subsidiary Debt is
repaid on their behalf out of amounts to be advanced to them by way of
loan by the Purchaser at
Completion.
|
IT
IS AGREED:
DEFINITIONS
AND INTERPRETATION
In this
agreement the following words and expressions shall (except where the context
otherwise requires) have the following meanings:
"Accounts" means the audited
consolidated accounts of the Company and its subsidiary undertakings comprising,
inter alia, the audited consolidated balance sheet as at the Accounts Date and
the audited consolidated profit and loss account for the period ended on the
Accounts Date, the notes and the cash flow statement relating thereto and the
reports of the directors and auditors thereon;
"Accounting Requirements"
means the requirements of the Companies Act and other relevant English law
statutes, Statements of Standard Accounting Practice, Financial Reporting
Standards, Statements of Recommended Practice and abstracts of the Urgent Issues
Task Force issued or adopted by The Accounting Standards Board Limited, any
other requirement of a United Kingdom accounting body having mandatory effect
and other generally accepted accounting principles and practices in the United
Kingdom;
"Accounts Date" means 31 May
2009;
"Acquisition Documents" means
the Disclosure Letter, this agreement and any documents entered into pursuant to
this agreement;
2
"Activities" means any
activity, operation or process, act or omission carried out or made by or on
behalf of the Company or for which the Company may have any
liability;
"Additional Vendors" means all
the Vendors save for the Warrantors and the Corporate Vendors;
"Barclays Guarantee" means the
personal guarantee provided by Xxx Xxxxx to Barclays Bank plc on or about 24
December 2009;
"Business Day" means a day
other than a Saturday, Sunday or public holiday on which banks are open for
commercial business in the City of London;
"Business Intellectual
Property" means all Intellectual Property used by the Company or the
Subsidiary in, or in connection with, their businesses;
"Companies Act" means the
Companies Xxx 0000;
"Company Debt" means the
following amounts owed by members of the Group to the respective lenders set out
below:
Xxx
Xxxxx: £684,346.85
North
East Regional Investment Fund Three Limited: £83,085.40;
"Completion" means the
performance of all the obligations of the parties to this agreement set out in
clause 0;
"Completion Accounts" means
the accounts to be prepared and agreed, deemed agreed or determined in
accordance with schedule 7;
"Completion Board Minutes"
means minutes of meetings of the boards of directors of the Company and the
Subsidiary in the agreed form;
"Completion Date" means the
date of this agreement;
"Completion Payment" has the
meaning given to clause 0;
"Computer Systems" means the
computer systems used by or for the benefit of the Company or the Subsidiary at
any time, or computer processors, associated and peripheral equipment, computer
programs, technical and other documentation and data entered into or created by
the foregoing from time to time;
"Confidential Information"
means information (however stored) relating to or connected with the business,
customers or financial or other affairs of the Company or the Subsidiary details
of which are not in the public domain including, without limitation, information
concerning or relating to:
|
|
(a)
|
the
Business Intellectual Property and any other property of the Company or
the Subsidiary in the nature of intellectual
property;
|
|
|
(b)
|
any
technical processes, future projects, business development or planning,
commercial relationships and negotiations;
and
|
|
|
(c)
|
the
marketing of goods or services including, without limitation, customer,
client and supplier lists, price lists, sales targets, sales statistics,
market share statistics, market research reports and surveys and
advertising or other promotional materials and details of contractual
arrangements and any other matters concerning the clients or customers of
or other persons having dealings with the Company or the
Subsidiary;
|
"Consideration" means the
consideration for the Shares set out in clause 0;
"Consultancy Agreement" the
consultancy agreement to be entered into between the Company and Xxx
Xxxxx;
"Corporate Vendor" means
Endless and Northstar;
"Data Room" means the
electronic data room made available to the Purchaser and its advisers, the index
to which is in agreed form;
"Disclosed" means specifically
disclosed to the Purchaser in the Disclosure Letter, with sufficient clarity and
detail to enable a reasonable purchaser to identify clearly and accurately the
nature, scope and effect of the matter disclosed;
3
"Disclosure Letter" means the
letter of even date with this agreement from the Vendors to the Purchaser
relating to the Warranties together with any documents annexed to
it;
"Employment Agreements" the
service agreements in agreed form to be entered into between the Company and
each of Xxxx Xxxx Xxxx Xxxxxx, Xxxx Xxxxx, Xxxx Xxxxxxxx, Xxxxxx
Xxxxxxx and Xxxx Xxxxxxx respectively;
"Encumbrance" means a
mortgage, charge, pledge, lien, option, restriction, equity, right to acquire,
right of pre-emption, third party right or interest, other encumbrance or
security interest of any kind or any other type of preferential arrangement
(including, without limitation, a title transfer and retention arrangement)
having similar effect;
"Endless" means Endless (No.
6) LLP, further details of which are set out in schedule 1;
"Environment" means any and
all living organisms or ecosystems (including, without limitation man, flora and
fauna), and the media of air (including without limitation, air within
buildings, other man-made structures and natural structures above or below
ground), water (including without limitation controlled waters as defined in
section 104 (1) of the Water Resources Xxx 0000, and water within drains and
sewers), and land (including without limitation buildings and other man-made
structures above or below ground);
"Environmental Consents" means
any consents, approvals, permits, licences, certificates, orders, filings,
authorisations, exemptions, registrations, permissions, reporting or notice
requirements and any related agreement required under any Environmental
Law;
"Environmental Law" means all
applicable directives or regulations, statutes or subordinate legislation, civil
or common law, all orders, judgments, notices, ordinances, decrees or regulatory
codes of practice, circulars, guidance notes and equivalent controls which have
as a purpose or effect the protection of, or prevention of harm to, human health
or the Environment, or which relate to health and safety or compensation for
harm;
"Escrow Account" means the
interest bearing joint account to be opened with National Westminster Bank PLC
in the name of the Vendors' Solicitors and the Purchaser's Solicitors and to be
operated in accordance with clause 0 and the Escrow Account Letter;
"Escrow Account Letter" means
the joint letter of instruction from the Warrantors and the Purchaser to the
Vendors' Solicitors and the Purchaser's Solicitors in relation to the Escrow
Account in the agreed form;
"Escrow Sum" means £1,000,000
and after Completion, the balance of such sum held in the Escrow Accounts for
the time being after any payments made from such account in accordance with the
terms of this Agreement and deduction of any bank charges debited to the Escrow
Account;
"Expert" has the meaning given
in part 2 of schedule 7;
"FSMA" means Financial
Services and Markets Xxx 0000;
"Group" means
the Company and its subsidiary undertakings from time to time and references to
a "member of the Group"
or a "Group member"
shall be construed accordingly;
"Group Companies" means the
Company and the Subsidiary;
"Hazardous Substance" means
any natural or artificial substance (whether solid, liquid or a gas), noise,
ion, vapour, electromagnetic charge or radiation, and whether alone or in
combination which is capable of causing harm to or having a deleterious effect
on the Environment, or of being a nuisance, or which restricts or makes more
costly the use, development, ownership or occupation of the Property or any
controlled, special, hazardous, polluting, toxic or dangerous substance or
waste;
"Intellectual Property"
includes patents, inventions, know-how, trade secrets and other confidential
information, registered designs, copyrights, data, database rights, design
rights, rights affording equivalent protection to copyright, database rights and
design rights, semiconductor topography rights, trade marks, service marks,
logos, domain names, business names, trade names, moral rights, and all
registrations or applications to register any of the aforesaid items, rights in
the nature of any of the aforesaid items in any country or jurisdiction, rights
in the nature of unfair competition rights and rights to xxx for
passing-off;
"Liability Cap" means an
amount equal to £1,000,000 less any and all amounts paid to the Purchaser from
the Escrow Account in accordance with clauses 0 and/or 0;
4
"Management Accounts" means
the unaudited consolidated balance sheet and profit and loss account of the
Company and its subsidiary undertakings in the agreed form as at and for the
period ended 31 January 2010;
"Net Working Capital Amount"
means the amount of cash plus trade debtors plus other debtors plus prepayments
plus stock and inventory less trade creditors less other creditors less non-debt
other accrued liabilities less current liabilities of the Company and the
Subsidiary as derived from the Completion Accounts in accordance with schedule
7;
"Northstar" means the North
East Co Investment Fund Limited Partnership further details of which are set out
in schedule 1;
"Properties" means the
freehold land and premises described in schedule 6 and any part or parts
thereof;
"Purchaser's Group" means the
Purchaser and any parent undertaking or subsidiary undertaking of the
Purchaser (such terms being construed in accordance with section 1162
of the Companies Act);
"Purchaser's Solicitors" means
DLA Piper UK LLP of Princes Exchange, Xxxxxxx Xxxxxx,
Xxxxx XX0 0XX;
"Relevant Claim" means any
claim by the Purchaser against any Vendor arising under the terms of this
Agreement (which, for the purposes of clauses 0 to 0 only) the Purchaser, acting
reasonably, believes is a bona fide claim);
"Relevant Proportions" means
the proportions set out in column 5 of schedule 1;
"Share Warranties" means the
representations and warranties contained in clause 0 and
schedule 3;
"Shares" means the 9,022,170
issued and allotted ordinary shares of £0.10 each of the Company and the
2,400,000 B shares of £0.10 each of the Company comprising the whole of the
issued share capital of the Company;
"Statutory Agreements" means
the following:
|
|
(a)
|
agreement
dated 16 March 1981 between Delyn Borough Council and Xxxxxx Research
Limited;
|
|
|
(b)
|
agreement
dated 19 August 1987 between Delyn Borough Council and Xxxxxxx Xxxxxxx
Chemicals Limited;
|
|
|
(c)
|
agreement
dated 31 May 1994 between Delyn Borough Council and the Associated Octel
Company Limited;
|
"Subsidiary" means
the subsidiary undertaking of the Company at the date hereof further details of
which are set out in part 2 of schedule 2;
Subsidiary Debt"
means:
The North
East Co Investment Fund Limited Partnership: £1,229,877.47;
Endless
(No.6) LLP: £1,114,068.11;
KBC
Business Capital, a division of KBC Bank N.V: £214,662.92;
"Tax Covenant" means any
covenant set out in part 1 of schedule 4;
"Tax Warranties" means the
representations and warranties in relation to taxation set out in part 2 of
schedule 4;
"Taxes Act" means the Income
and Corporation Taxes Xxx 0000;
"TCGA" means the Taxation of
Chargeable Gains Xxx 0000;
"Transfer Agreement" the form
TR1 effecting the transfer of the Properties from Endless Investments LLP to the
Subsidiary in agreed form;
"VAT" means value added
tax;
"Vendors' Solicitors" means
Xxxxxxxxx Xxxx LLP of St Ann's Wharf, 000 Xxxxxxxx, Xxxxxxxxx Xxxx Xxxx, XX0
0XX;
5
"Warranties" means the Share
Warranties and the Tax Warranties;
"Warrantors" means Xxx Xxxxxxx
Xxxxx, Xxxx Xxxxxxxxxxx Xxxx, Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx and Xxxxxxxx
Xxxx, further details of whom are set out in schedule 1;
"Warrantors' Spouses"
means Xxxxx Xxxxxx,
Xxxxxx Xxxx and Xxx Xxxxxxx, further details in respect of whom are contained at
schedule 1; and
"Waste Removal Programme"
means the programme for the removal of certain waste from the Properties in the
agreed form.
In this
agreement where the context admits:
save in
relation to schedule 4, words and phrases which are defined or referred to
in or for the purposes of the Companies Act as in force at the date of this
agreement have the same meanings in this agreement (unless otherwise expressly
defined in this agreement);
sections 5,
6, 8 and 9 of and schedule 1 to the Interpretation Xxx 0000 apply in
the same way as they do to statutes;
reference
to a statutory provision includes reference to:
any
order, regulation, statutory instrument or other subsidiary legislation at any
time made under it for the time being in force (whenever
made);
any
modification, amendment, consolidation, re-enactment or replacement of it or
provision of which it is a modification, amendment, consolidation, re-enactment
or replacement;
provided
that, as between the parties, no such modification, consolidation or
re-enactment shall apply for the purposes of this agreement to the extent that
it would impose any new or extended obligation, liability or restriction on, or
otherwise adversely effect the rights of, any party;
reference
to statutory obligations shall include obligations arising under Articles of the
Treaty establishing the European Community and regulations and directives of the
European Union to the extent applicable and enforceable against the Company, as
well as United Kingdom acts of Parliament and subordinate
legislation;
reference
to a clause, schedule or paragraph is to a clause, schedule or a paragraph of a
schedule of or to this agreement respectively;
reference
to the parties to this agreement includes their respective successors, permitted
assigns and personal representatives;
reference
to any party to this agreement comprising more than one person includes each
person constituting that party;
reference
to any gender includes the other genders;
reference
to any professional firm or company includes any firm or company effectively
succeeding to the whole, or substantially the whole, of its practice or
business;
the
index, headings and any descriptive notes are for ease of reference only and
shall not affect the construction or interpretation of this
agreement;
where a
sum is stated in pounds sterling it shall be deemed, where appropriate, to be a
reference to a sum in any other currency having an equivalent value using the
mid-market exchange rate of Barclays Bank Plc on the date upon which such
comparison is made;
6
a person
shall be deemed to be connected with another if that person is so connected
within the meaning of section 839 of the Taxes Act;
unless otherwise expressly provided, all covenants, warranties,
representations, undertakings and indemnities given or made by the Vendors or
the Warrantors (as the case may be) in this agreement are given or made as
between the Warrantors jointly and severally (save in the case of all
obligations arising under clause 0 which shall be a several and independent
obligation of Xxx Xxxxx) and as between the other Vendors severally;
in
clause 0 and schedules 3 and 4 references to the "Company" shall, in
addition to the Company, include the Subsidiary to the intent and effect that
the provisions of clause 0 and the Warranties and schedule 4 shall
apply to and be given in respect of the Subsidiary as well as the
Company;
where any statement is qualified by the
statement "so far as the Warrantor is aware" or by a reference (however
expressed) to the knowledge and/or belief of the Warrantor, the Warrantor shall
be deemed to know and/or believe anything which is known to and/or believed by
any of Xxx Xxxxx, Xxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxx Xxxx and Xxxxxxx Xxxxxxx
and, in any such case, anything which ought reasonably to have been known and/or
believed by them (or any of them) given their respective positions and
responsibilities to the Company and or which would have been known and/or
believed by them (or any of them) had they made all reasonable enquiries
regarding all the facts and circumstances relevant to such
statement;
the "agreed form" in relation to
any document means the form agreed between the parties to this agreement and,
for the purposes of identification only, initialled by or on behalf of the
parties.
This
agreement incorporates the schedules to it.
SALE AND
PURCHASE OF SHARES
Each of
the Vendors shall on Completion sell with full title guarantee the number of
Shares set opposite his name in column (2) of schedule 1 and the Purchaser
shall purchase the Shares free from all Encumbrances and together with all
rights of any nature which are now or which may at any time become attached to
them or accrue in respect of them including (without limitation) all dividends
and distributions declared paid or made in respect of them on or after the date
of this agreement.
Each of
the Vendors hereby waives any right of pre-emption or other restriction on
transfer in respect of the Shares or any of them conferred on him under the
articles of association of the Company or otherwise and agrees to procure before
Completion the irrevocable waiver of any such right or restriction conferred on
any other person.
The
Consideration payable by the Purchaser to the Vendors, for the purchase of the
Shares shall be four million eight hundred and eighty five thousand one hundred
and forty-seven pounds and sixty one xxxxx (£4,885,147.61) payable as follows on
account of the Consideration, the payments set out in clauses 0 and 0 together
being the "Completion
Payment":
as to the
sum of £3,885,147.61, in cash at Completion to the Vendors in the amounts set
out against their respective names in column (4) of schedule 1; and
as to the
Escrow Sum into the Escrow Account in accordance with paragraph 5 of schedule
5.
7
The
Consideration shall be adjusted as follows:
if the
Net Working Capital Amount is greater than minus £(732,464), by adding a sum
equal to the amount by which the Net Working Capital Amount is greater than
minus £(732,464). By way of example, if the Net Working Capital
Amount is minus £(300,000), the sum of £432,464 will be added to the
Consideration; or
if the
Net Working Capital Amount is less than minus £(732,464), by deducting a sum
equal to the amount by which the Net Working Capital Amount is less than
£(732,464). By way of example, if the Net Working Capital Amount is
minus £(1,032,464), the sum of £300,000 will be deducted from the
Consideration.
Within 5
Business Days of the agreement, deemed agreement or determination of the Net
Working Capital Amount in accordance with schedule 7:
if the
Consideration exceeds the Completion Payment:
the
Purchaser shall pay to the Vendors, in the proportions set out in column (3) of
schedule 1, a sum equal to the amount of such excess, together with interest on
such amount, calculated in accordance with clause 0; and
the
Escrow Sum, together with interest that has accrued on such sum from Completion,
shall remain in the Escrow Account and be paid out in accordance with the
provisions of clauses 0 to 0; or
if the
Completion Payment exceeds the Consideration and the excess is equal to or less
than the Escrow Sum then:
the
Warrantors and the Purchaser shall procure that an amount equal to the excess,
together with interest that has accrued on such sum, shall be paid to the
Purchaser from the Escrow Account; and
the
balance of the monies in the Escrow Account after the payment pursuant to clause
0 above shall remain in the Escrow Account and be paid out in accordance with
the provisions of clauses 0 to 0; or
if the
Completion Payment exceeds the Consideration and the excess is greater than the
Escrow Sum then:
the
Warrantors and the Purchaser shall procure the payment of all sums held in the
Escrow Account to the Purchaser; and
the
Additional Vendors and the Warrantors shall pay a sum equal to the amount by
which the excess exceeds the Escrow Sum to the Purchaser in the Relevant
Proportions, together with interest on it calculated in accordance with clause
0.
Interest
due pursuant to clause 0 shall be calculated on the amount payable from and
including the day after the Completion Date to (but excluding) the actual date
of payment at the rate of three per cent per annum above the base lending rate
from time to time of Barclays Bank Plc determined by the relevant bank holding
the Escrow Account. Such interest shall accrue from day to day and
shall be compounded monthly.
Any sums
in the Escrow Account:-
not paid
to the Purchaser pursuant to clause 0 or 0 or not the subject of a Relevant
Claim shall be released to the Warrantors from the Escrow Account on the first
anniversary of the Completion Date, or if that date is not a Business Day, the
next Business Day;
8
that are
the subject of a Relevant Claim, but such sums are not paid to the Purchaser in
accordance with clauses 0, shall be released to the Warrantors from the Escrow
Account within two Business Days of settlement of the Relevant Claim provided
that such release date is on or after the first anniversary of the Completion
Date.
In the
event that the Purchaser asserts a Relevant Claim against the Vendors at any
time prior to the Release Date, the Purchaser shall serve notice on the Vendors
("Notice of Claim")
setting out such reasonable details of the nature and circumstances of the
Relevant Claim as are known to the Purchaser at the relevant time, together with
the Purchaser's reasonable pre-estimate of the Vendors' liability in respect of
the Relevant Claim (the "Claim
Value").
Once a
Notice of Claim has been served, and subject always to the Purchaser complying
with its obligations under clause 0 a sum equal to the Claim Value shall be
retained in the Escrow Account (other than any sums due to the Purchaser under
clause 0 or 0 and subject always to a maximum of the amount standing to the
credit of the Escrow Account for the time being) until such time as the
applicable Relevant Claim has been settled in accordance with clause 0 or (if
earlier), in the case of a claim in respect of the Warranties, the date on which
such Relevant Claim expires in accordance with clause 0. Following
settlement of such Relevant Claim that have been asserted, the Vendors'
Solicitors and the Purchaser's Solicitors shall instruct National Westminster
Bank plc to pay out of the Escrow Account to the Purchaser the amount due (if
any) to the Purchaser in respect of such settled Relevant Claim(s) or the total
Escrow Sum (whichever shall be the lesser sum) together with any interest earned
on such sum, and clause 0 shall apply to the remainder (if any) of the Escrow
Sum.
Nothing
in clause 0 and 0 shall prejudice or limit the right of the Purchaser to make
any claim against the Vendors either under this agreement or under any of the
documents executed pursuant to this agreement.
A
claim:
shall be
treated as settled for the purposes of clause 0 if:
the
Warrantors (or in the event such claim relates to a claim under clause 0 and/or
in respect of a claim arising under clause 0 and/or clause 0, the applicable
Vendor to which such claim relates) and the Purchaser shall so agree in writing,
such written agreement not to be unreasonably withheld or delayed following any
oral agreement; or
a court
of competent jurisdiction has awarded judgment in respect of the
claim;
Subject
to compliance with clause 0 to 0, the Warrantors and the Purchaser shall procure
the prompt closure of the Escrow Account.
Completion shall take place at the offices
of the Purchaser's Solicitors on the Completion Date when each of the parties
shall comply with the provisions of schedule 5.
The
Purchaser shall not be obliged to complete the purchase of the Shares under this
agreement unless the Vendors comply fully with their obligations under
schedule 5 and unless the purchase of all the Shares is completed
simultaneously (but so that completion of the purchase of some of the Shares
will not affect the rights of the Purchaser with respect to the
others).
With
effect from Completion, the Purchaser irrevocably absolutely and unconditionally
releases Xxx Xxxxx from any and all obligations arising under the guarantee
granted by him to the Purchaser on 29 January 2010 and waives and releases Xxx
Xxxxx from any and all accrued liabilities arising thereunder.
9
From
Completion the Purchaser shall indemnify and keep indemnified Xxx Xxxxx against
and in respect of all claims, losses, damages, liabilities, costs, fines and
penalties (to the extent permitted by law), charges, expenses, reasonable legal
and other necessary professional fees paid, incurred, suffered, sustained and/or
payable by Xxx Xxxxx arising under the Barclays Guarantee (together "Barclays Liabilities") to the
extent that such Barclays Liabilities arise as a direct result of any act or
omission of:
the
Purchaser or any member of the Purchaser's Group; or
(but only
in so far as such act or omission occurs after Completion) the Company or the
Subsidiary.
Provided
that Xxx Xxxxx indemnifies and keeps indemnified the Purchaser in respect of all
reasonable costs and expenses in complying with its obligations under this
clause 0, the Purchaser shall use all reasonable endeavours to procure the
release of Xxx Xxxxx from all and any obligations under the Barclays Guarantee
as soon as reasonably practicable after Completion (including providing such
substitute security as Barclays Bank plc may reasonably request as a condition
to such release),provided that nothing in this clause 0 shall require Xxx Xxxxx
to procure or provide any such substitute security.
The
Warrantors represent and warrant to the Purchaser that, at the date of this
agreement, each of the statements set out in schedule 3 and part 2 of
schedule 4, is true and accurate;
each
Corporate Vendor as a separate and independent obligation severally represents
and warrants to the Purchaser that at the date of this agreement each of the
statements set out in paragraphs 1 and 2 of part 1 and part 8 of schedule 3 in
respect of itself and its Shares only, is true and accurate;
each
Additional Vendor as a separate and independent obligation severally represents
and warrants to the Purchaser that at the date of this agreement each of the
statements set out in paragraphs 1, 2 and 6.6 of part 1 of schedule 3 in respect
of itself and its Shares only, is true and accurate.
Notwithstanding
clause 0, the Purchaser and the Warrantors agree that the warranties and
representations set out in paragraphs 1, 2 and/or 6 of part 1 of schedule 3
and/or in part 8 of schedule 3 shall be given by each Warrantor in respect of
himself only and the Shares held by him and his spouse only.
The
Vendors acknowledge that the Purchaser is entering into this agreement in
reliance on each Warranty which has also been given as a representation and with
the intention of inducing the Purchaser to enter into this agreement and that
the Purchaser has been induced to enter into this agreement on the basis of and
in full reliance upon them and that the Purchaser may rely on the Warranties in
warranting to any subsequent purchaser of all or any of the Shares, provided
that nothing in this clause 0 shall operate to extend the liability of any
Vendor under this Agreement.
Each of
the Warranties shall be construed as a separate and independent warranty and
(except where this agreement provides otherwise) shall not be limited or
restricted by reference to or inference from any other term of this agreement or
any other Warranty.
10
The
rights and remedies of the Purchaser in respect of any breach of any of the
Warranties shall survive Completion.
No right
of rescission shall be available to the Purchaser by reason of any breach of the
Warranties.
Each of
the Vendors waives and may not enforce any right which he may have in respect of
any misrepresentation, inaccuracy or omission in or from any information or
advice supplied or given by the Company and the Subsidiary or their officers or
employees in enabling the Vendors to give the Warranties and any representations
or to prepare the Disclosure Letter.
The
Warranties shall not be deemed in any way modified or discharged by reason of
any investigation made or to be made by or on behalf of the Purchaser or by
reason of any information relating to the Company of which the Purchaser has
knowledge (actual, implied or constructive) except that the Warranties shall be
qualified by such information as is Disclosed.
the value
of any of the Company's assets being or becoming less than it would have been
had the relevant circumstances been as so warranted; or
the
Company having incurred or incurring any liability or an increase in a liability
which it would not have incurred had the relevant circumstances been as so
warranted,
then the
Warrantors agree (subject always to the provisions of clause 0 and the
Purchaser's common law duty to mitigate its loss) to pay to the
Purchaser as soon as reasonably practicable and in any event within three
Business Days of (i) the settlement of any claim under the Warranties in
accordance with the terms of any agreed settlement; or (ii) (save where a court
otherwise determines) judgment being awarded by a court of competent
jurisdiction in favour of the Purchaser in respect of any claim under the
Warranties (at the option of the Purchaser) an amount equal to
either:
the
reduction in value of the assets or (as the case may be) the liability or
increased liability thereby incurred by the Company; or
an amount
equal to the reduction caused in the value of the Shares.
Subject
always to the provisions of clause 0, the Warrantors agree to indemnify the
Purchaser in full for and against all reasonable costs (including, without
limitation, legal costs) and reasonable expenses incurred by the Purchaser in
connection with:
any legal
proceedings, to the extent pursuing any claim for breach of Warranty in which a
court of competent jurisdiction has awarded judgement in respect of the claim;
or
the
enforcement of any such judgment.
The
rights of the Purchaser under clauses 0 and 0 shall be in addition and without
prejudice to any other right or remedy available to it under this agreement or
otherwise.
11
LIMITATION
ON THE VENDORS' LIABILITY
The
aggregate liability of the Vendors in respect of all claims under the
Warranties, (which for the avoidance of doubt, shall include any payment made to
the Purchaser pursuant to clause 0, 0 and/or 0) shall not exceed the Liability
Cap.
No amount
shall be payable by the Vendors in respect of any claim under the
Warranties:
unless
and until the aggregate cumulative liability of the Vendors in respect of all
such claims exceeds one hundred and fifty thousand pounds sterling in which case
the Vendors shall be liable for both the initial one hundred and fifty thousand
pounds sterling and the excess; and
unless
the amount of each such claim exceeds five thousand pounds
sterling.
For the
purpose of this clause 0, where a claim relates to the same event or
circumstance which would separately give rise to a liability on the part of the
Vendors under the Warranties, all such claims shall be aggregated and treated as
one.
No Vendor
shall be liable for any claim under the Share Warranties unless:
the
relevant Vendors are given notice of that claim stating such reasonable details
of the nature of the claim as are known to the Purchaser at the relevant time
and, if practicable, the amount claimed on or before the date which is eighteen
months after Completion; and
(subject
to the relevant Vendors and the Purchaser agreeing otherwise in writing) court
proceedings are issued and properly served by the Purchaser against the relevant
Vendors in respect of such claim within the period of nine months
immediately following notification under clause 0.
The
Vendors shall not be liable under the Warranties:-
to the
extent that the facts which might result in a claim or possible claim are
Disclosed;
to the
extent that a claim arises from an act or omission occurring at the prior
written request of or with the prior written consent of the
Purchaser. For the purpose of this clause 0, any written consent or
request from the Purchaser may only be given by Xxxxxxx Xxxxxxxx;
to the
extent that a specific provision is made in the Accounts or in the Completion
Accounts in respect of the subject matter of the claim;
to the
extent that the claim arises from a voluntary act of the Purchaser after
Completion outside of the ordinary course of business and otherwise than
pursuant to a legally binding agreement entered into prior to Completion in
circumstances where the Purchaser knew or ought reasonably to have known prior
to carrying out such voluntary act that carrying out such voluntary act would
result in circumstances or events which would give rise to a potential claim for
breach of one of the Warranties;
12
|
|
to
the extent that a claim arises as a result of any change in accounting
policies or procedures after
Completion;
|
|
|
to
the extent that a claim arises as a result of any increase or change in
rates of Tax made after Completion (but not announced before that date)
with effect prior to Completion or arises as a result of the retrospective
imposition of Tax not in existence or announced at
Completion;
|
|
|
to
the extent that the Purchaser fails to fulfil its common law duty to
reasonably mitigate its loss.
|
|
|
The
Purchaser shall only be able to recover once under any of the Acquisition
Documents (which for the purposes of this clause 0 shall include the
agreements in respect of the transfer of Excelsyn Management Consulting
Limited and Excelsyn Engineering Technology Limited as delivered pursuant
to paragraph 2.22 of schedule 5) in relation to any particular loss or
liability.
|
|
|
Any
payment made by the Vendors (or any of them) as a result of a claim under
the Warranties shall be treated as a reduction by such amount in the
consideration payable under clause
0.
|
|
|
If
the Vendors (or any of them) pay to the Purchaser an amount in respect of
a claim under the Share Warranties or under any of the indemnities
contained in clause 0 and the Purchaser subsequently recovers from a third
party an amount which is referable to the matter giving rise to claim
then:
|
if the
amount paid by the Vendors in respect of such claim is more than the Sum
Recovered (as defined below), the Purchaser shall immediately pay the Vendors
the Sum Recovered;
if the
amount paid by the Vendors in respect of such claim is less than or equal to the
Sum Recovered, the Purchaser shall immediately pay the Vendors an amount equal
to the amount paid by the Purchaser.
For the
purposes of this clause 0 "Sum
Recovered" means an amount equal to the amount recovered from the third
party less all charges, costs and expenses incurred by the Purchaser in
recovering the amount from the third party.
|
|
The
Purchaser shall use all reasonable endeavours to recover from under any
policy of insurance held by any member of the Purchaser's Group from time
to time any loss it incurs as a consequence of the subject matter of any
Relevant Claim. For the avoidance of doubt it is acknowledged
by the Vendors that the Purchaser shall not have to take any action
pursuant to this clause 0 other than to notify the relevant insurance
company of the claim and to respond to any reasonable enquiries from the
insurance company in respect of the subject matter of the
claim.
|
|
|
If
the Purchaser or the Company become aware of any matter which gives or may
give rise to a Relevant Claim, the Purchaser shall, or shall procure that
the Company shall, as soon as reasonably practicable give written notice
of such claim to the Vendors' Agent, or if the claim does not relate to
Agent's Matters, to the relevant Vendor but such notice shall not be a
condition precedent to the liability of the Vendors in respect of a
Relevant Claim. Any omission by the Purchaser or the Company to
take any action in relation to a Relevant Claim shall not be a defence to
a claim.
|
|
|
Subject
to clause 0 the Purchaser shall, and shall procure that the Company shall,
take such action (including, but not limited to, and without prejudice to
the Purchaser's obligations under clause 0, claiming under any insurance
policy of the Purchaser or any member of the Purchaser's group) and give
such information and assistance in connection with the affairs of the
Company as the Vendors' Agent, or if the claim does not relate to Agent's
Matters, to the relevant Vendor may reasonably and promptly by written
notice request to avoid, resist, appeal or compromise the matter giving
rise to the Relevant Claim or to mitigate any loss in respect of the
Relevant Claim, subject to the Warrantors having first indemnified and
secured the Company and the Purchaser to the Purchaser's reasonable
satisfaction against all reasonable costs which may be incurred in taking
action pursuant to this clause 0.
|
13
|
|
If
the Vendors Agent, or if the claim does not relate to Agent's Matters, to
the relevant Vendor does not request the Purchaser to take action pursuant
to clause 0 or fails to admit liability for the Relevant Claim and
indemnify and secure the Company and the Purchaser as required by that
paragraph within twenty Business Days of the written notice referred to in
clause 6.8 the Vendors shall cease to have any rights under this clause 6
in relation to the Relevant Claim.
|
|
|
The
actions which the Vendors' Agent, or if the claim does not relate to
Agent's Matters, to the relevant Vendor may reasonably request under
clause 0 shall not
include:
|
|
|
allowing
the Vendors or their professional advisors to take on or take over the
conduct of proceedings of any nature arising in connection with the
Relevant Claim;
|
|
|
taking
any action which is likely adversely to affect the goodwill and/or
reputation and/or current trading relationships of the Company, the
Subsidiary, the Purchaser or any member of the same group of companies as
the Purchaser;
|
|
|
contesting
any Relevant Claim before any court, tribunal or other appellate body
unless at the expense of the Vendors, the Vendors obtain the written
opinion of leading counsel that, after the disclosure of all relevant
information and having regard to all relevant circumstances on the balance
of probabilities the action will
succeed;
|
|
|
any
action which the Purchaser reasonably considers will be onerous or
prejudicial to the Purchaser or the Company or the Subsidiary;
and
|
|
|
any
action requested by an agent or representative of the Vendors including
any administrator, administrative receiver, liquidator or trustee in
bankruptcy.
|
|
|
The
Additional Vendors and Corporate Vendors shall be liable in respect of any
claim under this agreement as
follows:
|
|
|
in
the event that the relevant claim arises as result of a breach of the
agreement by only one Additional Vendor or Corporate Vendor, such
Additional Vendor or Corporate Vendor shall be liable for 100 per cent of
such claim;
|
|
|
in
the event that the relevant claim arises as a result of a breach of the
agreement by more than one Corporate Vendor then such Corporate Vendor
shall be liable for 50 per cent of such claim;;
or
|
|
|
in
the event that the relevant claim arises as a result of a breach of the
agreement by more than one Additional Vendor then each such Additional
Vendor shall be liable for their relevant proportion of such claim pro
rated between themselves by reference to the proportions set out in column
(3) of schedule 1; or
|
|
|
in
the event that the relevant claim arises other than as a result of a
breach by any Additional Vendor or Corporate Vendor then the Additional
Vendors or Corporate Vendors shall not be liable for any such
claim.
|
|
|
Clauses
0 to 0 (inclusive) shall not apply to any claim against a Vendor where it
can be proved that such claim is based on a dishonest or fraudulent act or
omission or fraudulent misrepresentation of or by that Vendor prior to
Completion.
|
|
|
Nothing
in clause 0 or 0 shall release the Purchaser from any common law duty to
mitigate its loss.
|
14
|
|
INDEMNITY
|
The
Warrantors shall indemnify and keep indemnified the Purchaser, the Company, the
Subsidiary and/or all or any of their officers, directors, agents, employees and
assigns against and in respect of all claims, losses, damages, liabilities,
costs, fines and penalties (to the extent permitted by law), charges, expenses,
reasonable legal and other necessary professional fees paid, incurred, suffered,
sustained and/or payable by the Purchaser, the Company and/or the
Subsidiary:
|
|
arising
in relation to the incident at Alan's Skip Hire on or around 21 May 2009
which allegedly concerned the disposal of waste drums by the
Subsidiary. The indemnity granted by the Warrantors under this
clause 0 shall cease and determine on the sixth anniversary of the
Completion Date;
|
|
|
arising
as a consequence of the Health and Safety Executive investigation into the
accident which occurred on 16 September 2009 where a shift manager slipped
on a stairway, including any works required by the Health and Safety
Executive relating to that
accident;
|
|
|
in
respect of any responsibility or liability (whether attributable to
service before, on or after Completion) that passed to the Company or
Subsidiary under the Transfer of Undertakings (Protection of Employment)
Regulations 2006 and/or the Transfer of Undertakings (Protection of
Employment) Regulations 1981 as amended and relates in any way whatsoever
to pension, or retirement or death benefits accrued prior to Completion
and payable (actually, prospectively or contingently) under or in
connection with an occupational pension scheme (within the meaning of
section 1 Pension Schemes Act
1993);
|
|
|
in
respect of (1) the failure of the Company and the Subsidiary to provide
access for all Relevant Employees (as defined in the Stakeholder Pension
Schemes Regulations 2000) to a stakeholder pension scheme under Part 1 of
the Welfare Reform and Pensions Xxx 0000 and the Stakeholder Pension
Schemes Regulation 2000 (the “Stakeholder
Obligations”); and (2) the failure to report the breach of the
Stakeholder Obligations to the Pensions Regulator under Section 70 of the
Pensions Xxx 0000. The indemnity obligation under this clause 0
shall apply only to claims, losses, damages, liabilities etc. in respect
of the period ending 3 months from
Completion.
|
The
Purchaser shall use its reasonable endeavours to ensure the Company’s and the
Subsidiary’s compliance with the Stakeholder Obligations within 3 months
following Completion. The Parties agree that, in view of the existing
pension arrangements of the Company and the Subsidiary and the Purchaser’s
commitment to remedy their breach of the Stakeholder Obligations within 3 months
of Completion, the breach of the Stakeholder Obligations does not constitute a
reportable breach of law within the meaning of Section 70 of the Pensions Act
2004 (as it is unlikely to be of material significance to the Pensions
Regulator). Accordingly, the Purchaser undertakes not to and shall
use its best endeavours to ensure the Company and the Subsidiary do not report
or otherwise notify the breach of the Stakeholder Obligations to the Pensions
Regulator.
|
|
VENDORS'
COVENANTS
|
|
|
Xxx
Xxxxx undertakes to and covenants with the Purchaser that (except with the
consent in writing of the Purchaser) he will not at any time after
Completion:
|
|
|
use
or procure or cause or (so far as he is able) permit the use of any name
or names identical or similar to or including the word "Excelsyn" or any
colourable imitation thereof in connection with any activity
whatsoever;
|
15
|
|
(except
as required by law) disclose or divulge to any person (other than to
officers or employees of the Purchaser whose province it is to know the
same) or use (other than for the benefit of the Purchaser) any
Confidential Information which may be within or have come to his knowledge
and he shall use all reasonable endeavours to prevent such publication,
disclosure or misuse of any Confidential
Information;
|
|
|
do
or say anything maliciously or specifically targeted against any member of
the Group which is likely or intended to damage the goodwill or reputation
of the Company or any other member of the Group or of any business carried
on by any member of the Group.
|
|
|
Xxx
Xxxxx undertakes to and covenants with the Purchaser that he will not, for
a period of two years after the date of this agreement, either on his own
behalf or jointly with or as an officer, manager, employee, advisor,
consultant or agent for any other person, directly or
indirectly:
|
|
|
do
anything malicious or specifically targeted against any member of the
Group which may lead any person to cease to do business with the Company
or any other member of the Group on substantially equivalent terms to
those previously offered or not to engage in business with the Company or
any other member of the Group;
|
|
|
approach,
canvass, solicit or otherwise act with a view to enticing away from or
seeking in competition with any business of the Company or the Subsidiary
the custom of any person who at any time during the period of
12 months preceding the Completion Date has been a customer of the
Company or the Subsidiary and during such period he shall not use his
knowledge of or influence over any such
customer:-
|
|
|
to
or for his own benefit; or
|
|
|
for
the benefit of any other person carrying on
business
|
in
competition with business of the Company or the Subsidiary as carried out at the
date of this agreement or otherwise use his knowledge of or influence over any
such customer to the detriment of the Company or the Subsidiary;
|
|
seek
to contract with or engage (in such a way as adversely to affect the
business of the Company or the Subsidiary as carried on at the date of
this agreement) any person who has been contracted with or engaged to
manufacture, assemble, supply or deliver products, goods, materials or
services to the Company or the Subsidiary at any time during the period of
12 months preceding the date of this
agreement;
|
|
|
approach,
canvass, solicit, engage or employ or otherwise endeavour to entice away
any person who at any time during the period of six months preceding the
Completion Date shall be or shall have been an employee, officer, manager,
consultant, subcontractor or agent of the Company or the Subsidiary with a
view to the specific knowledge or skills of such person being used by or
for the benefit of any person carrying on business in competition with the
business carried on by the Company or the
Subsidiary;
|
|
|
be
engaged, concerned or interested, whether as an employee or in any other
capacity, in carrying on any business within the United Kingdom in
competition with the business carried on by the Company or the Subsidiary
as carried on at the date of this
agreement.
|
|
|
Each
of the covenants contained in clauses 0 and 0 shall constitute an
entirely separate and independent restriction on Xxx
Xxxxx.
|
|
|
References
in this clause 0 to the "business of the Company or the Subsidiary"
shall include the business of the Company and/or the Subsidiary that may
from time to time be transferred to any company within the
Group.
|
16
|
|
Xxx
Xxxxx agrees and acknowledges that the restrictions contained in this
clause 0 are fair and reasonable and necessary to assure to the
Purchaser the full value and benefit of the Shares but, in the event that
any such restriction shall be found to be void or unenforceable but would
be valid and effective if some part or parts thereof were deleted, such
restriction shall apply with such deletion as may be necessary to make it
valid and effective.
|
|
|
Notwithstanding
clause 0 to 0 no act or omission of Xxx Xxxxx shall be in breach of any or
all of his obligations or restrictions imposed on him under this clause 0
to the extent that such act or omission is undertaken in the performance
of his duties arising under and in respect of the Consultancy
Agreement.
|
|
|
TAXATION
|
The
provisions of schedule 4 shall apply with respect to the matters contained
or referred to therein.
|
|
transfer
of assets
|
The
Warrantors and the Additional Vendors (on a several basis and in respect of
themselves only) hereby undertake to the Purchaser to procure that, in the event
that any Warrantor or Additional Vendor owns any assets which are used by the
Company or the Subsidiary, then such Warrantor or Additional Vendor
shall:
|
|
if
such assets are used exclusively by the Company or the Subsidiary transfer
gratuitously such assets absolutely to the Purchaser or the Company or the
Subsidiary as the Purchaser shall so direct;
or
|
|
|
if
such assets are not used exclusively by the Company or the Subsidiary
grant to the Purchaser or the Company or the Subsidiary as the Purchaser
shall so direct a gratuitous perpetual worldwide licence to use such
assets provided that no licence shall be required to be granted under this
clause 0 by any Warrantor or any Additional Vendor in relation to a
licence to occupy their residential
address.
|
|
|
VENDORS'
AGENT
|
|
|
The
Vendors appoint irrevocably (subject to provisions of this clause 0
in relation to the appointment of a replacement Vendors' Agent (as defined
below)) Xxx Xxxxx (or thereafter such other person as the Vendors may from
time to time appoint (pursuant to clause 0)) to be their sole and
exclusive agent and as their sole and exclusive true and lawful attorney
on behalf of each of them and in their names (whether acting for one or
more of them) to deal with all matters in connection with or arising from
calculating and agreeing the Net Working Capital Amount; and, subject
always to clause 0, to deal with all matters in connection with or arising
from the Escrow Account and the Warrantors appoint irrevocably (subject to
the provisions of this clause 0 in relation to the appointment of a
replacement Vendors' Agent (as defined below)) Xxx Xxxxx (or thereafter
such other person as the Warrantors may from time to time appoint
(pursuant to clause 0)) to be their sole and exclusive agent and as their
sole and exclusive true and lawful attorney on behalf of each of them and
in their names (whether acting for one or more of them) or otherwise to do
all acts and things (including, without limitation, to accept receipt of
notice or to settle any claims or disputes or appoint and pay professional
advisers) and to execute and sign all deeds and documents which he
considers necessary or advisable in connection with or in relation to this
agreement or any document referred to herein, which appointment as
attorney shall, in all circumstances save as provided herein, remain in
full force and effect until the performance by the Vendors of all their
obligations hereunder (all such matters in respect of which an appointment
has been made pursuant to this clause, being the Agent's
Matters), provided that any such authority shall not
extend to agreement of any different liability between the Vendors ("Vendors'
Agent").
|
|
|
Each
of the Vendors and each of the Warrantors (as the case may be) agree that
any document, notice or other communication to be served under or in
connection with Agent's Matters in respect of which they have made an
appointment pursuant to clause 0 ("Service Document") may
be effectively served on them by service on the Vendors'
Agent. Any Service Document shall be deemed to have been duly
served if marked for the attention of the Vendors' Agent at the address
referred to in schedule 1 or such other address as may be notified to the
party wishing to serve such document, notice or other communication and
received at the specified address.
|
17
|
|
Each
of the Vendors hereby confirm that they will be bound by any notice served
by the Vendors' Agent or on the Vendors' Agent in respect of any Agent's
Matters in respect of which they have made an appointment pursuant to
clause 0 in accordance with the terms of this agreement and irrevocably
undertakes to do such acts as are necessary to give effect to the terms of
this clause 0 and clauses 0 to 0.
|
|
|
If
the then current Vendors' Agent at any time ceases for any reason to act
as the Vendors' Agent or moves out of the United Kingdom, the Vendors
and/or the Warrantors shall appoint a replacement in respect of which they
have made an appointment pursuant to clause 0 and shall notify the
Purchaser of the name and address of the replacement as the Vendors'
Agent, Failing such appointment and notification within one
month of the previous Vendors' Agent ceasing to act or moving out of the
United Kingdom, the Purchaser shall be entitled by notice to the Vendors
and the Warrantors to appoint any of the Vendors or the Warrantors to act
on the Vendors' or the Warrantors behalf as the Vendors' Agent or if none
of the Vendors are willing to so act, such other person as the Purchaser
shall in its absolute discretion shall determine. The
provisions of this clause applying to a Vendors' Agent apply equally to
such replacement as Vendors' Agent.
|
|
|
It
is acknowledged by the parties to this agreement that the Vendors' Agent
shall be the only person with whom the Purchaser shall be obliged to
communicate in relation to any correspondence between the Purchaser and
any of the Vendors arising in relation to or in connection with any
Agent's Matters in respect of which they have made an appointment pursuant
to clause 0.
|
|
|
FURTHER
ASSURANCE AND ATTORNEY
|
|
|
On
and after Completion, each Vendor shall as an independent and several
obligation, at the request of the Purchaser, do and execute or procure to
be done and execute all such acts, deeds, documents and things as may be
necessary to give effect to that Vendor's obligations this
agreement.
|
|
|
On
and after Completion, each Warrantor shall provide the Purchaser with all
reasonable assistance it requires in responding to any queries raised by
the Land Registry in relation to the Purchaser's application to remove
reference to the farm business tenancy (entry C2) from the register of
title number CYM85198.
|
|
|
On
and after Completion, at the request of the Purchaser, the Vendors shall
execute as a deed a power of attorney in the agreed form in favour of the
Purchaser or such person as may be nominated by the Purchaser generally in
respect of the Shares and in particular to enable the Purchaser (or its
nominee) to approve written resolutions circulated and to attend and vote
at general meetings of the Company held during the period prior to the
name of the Purchaser (or its nominee) being entered on the register of
members of the Company in respect of the
Shares.
|
|
|
INFORMATION
|
The
Warrantors shall provide or procure to be provided to the Purchaser all such
information in their possession or under their control as the Purchaser shall
from time to time reasonably require (both before and after the Completion Date)
relating to the business and affairs of the Company and/or the Subsidiary and
will give or procure to be given to the Purchaser, its directors and agents
access to such information and will permit the Purchaser to take copies of the
same.
|
|
Xxx
xxxxx'x covenants
|
18
|
|
As
soon as reasonably practicable following Completion, Xxx Xxxxx will notify
Mercedes Benz Finance that he wishes to terminate the vehicle lease
agreement between (1) Xxx Xxxxx and (2) Mercedes Benz Finance dated 3
October 2008 in respect of the lease of Xx Xxxxx'x Mercedes Benz vehicle
("Lease
Agreement"). Xxx Xxxxx will use all reasonable
endeavours to minimise any termination payment in respect of the Lease
Agreement. The Purchaser undertakes to pay to Xxx Xxxxx, within
five Business Days of receipt of a written notice from Xxx Xxxxx attaching
an invoice from Mercedes Benz Finance in respect of the termination
payment in respect of the Lease Agreement a sum equal to the amount of the
termination payment, as set out in the
invoice.
|
|
|
Xxx
Xxxxx irrevocably hereby instructs the Purchaser to deduct the sum of
£26,483.86 ("Tax
Deduction") from the cash consideration due to him pursuant to this
agreement and to pay the Tax Deduction to HM Revenue and Customs as soon
as reasonably practicable and in any event within 10 Business Days of
Completion and the Purchaser Undertakes to procure such payment on behalf
of the Company and to provide a copy of form CT61 (or such other relevant
certificate of tax deduction as is applicable) for the relevant period to
Xxx Xxxxx as soon as reasonably practicable after payment of such Tax
Deduction to HM Revenue and
Customs.
|
|
|
ANNOUNCEMENTS
|
No
announcement, communication or circular concerning this agreement shall be made
(whether before or after the Completion Date) by or on behalf of the parties
hereto without the prior approval of the other or others (such approval not to
be unreasonably withheld or delayed) save for:
|
|
announcements
to employees, customers, suppliers and agents of the Company and/or the
Subsidiary and/or the Purchaser and/or any company which is a member of
the same group as the Purchaser in such form as may be reasonably required
by the Purchaser; and
|
|
|
such
announcements as may be required by the US Securities and Exchange
Commission.
|
|
|
COSTS
|
Subject
as otherwise expressly provided in this agreement, each of the parties shall
bear and pay its own legal, accountancy, actuarial and other fees and expenses
incurred in and incidental to the preparation and implementation of this
agreement and of all other documents in the agreed form.
|
|
SUCCESSORS
AND ASSIGNMENT
|
|
|
This
agreement shall be binding on and inure for the benefit of each party's
successors and personal representatives but shall not be assignable except
that the Purchaser may assign its rights under this agreement to any
company of which it is a subsidiary or of which it is a holding company
provided that:-
|
|
|
in
the event such assignee company ceases to be a subsidiary or holding
company of the Purchaser, the Purchaser shall procure re-assignment of any
rights so assigned back to the Purchaser, and to the extent such rights
are not re-assigned such rights shall no longer be of enforceable against
any of the Vendors;
|
|
|
such
assignment shall not extend or create a liability of any Vendor that would
not have otherwise been extended or existed but for such
assignment.
|
|
|
Except
as otherwise expressly provided, all rights and benefits under this
agreement are personal to the parties and may not be assigned at law or in
equity without the prior written consent of the other
party.
|
|
|
ENTIRE
AGREEMENT
|
|
|
The
Acquisition Documents constitute the entire agreement between the
Purchaser and the Vendors with respect to the subject matter of this
agreement.
|
|
|
Except
for any misrepresentation or breach of warranty which constitutes
fraud:
|
19
|
|
the
Acquisition Documents supersede and extinguish all previous agreements
between the parties relating to the subject matter thereof and any
representations and warranties previously given or made other than those
contained in the Acquisition
Documents;
|
|
|
each
party acknowledges to the other (and shall execute the Acquisition
Documents in reliance on such acknowledgement) that it has not been
induced to enter into any such documents by nor relied on any
representation or warranty other than the representations and/or
warranties contained in such documents;
and
|
|
|
each
party hereby irrevocably and unconditionally waives any right it may have
to claim damages or to rescind this agreement or any of the other
Acquisition Documents by reason of any misrepresentation and/or warranty
not set forth in any such document.
|
|
|
Each
of the parties acknowledges and agrees for the purposes of the
Misrepresentation Xxx 0000 and the Unfair Xxxxxxxx Xxxxx Xxx 0000 that the
provisions of this clause 0 are
reasonable.
|
|
|
Nothing
in this clause 0 shall operate to limit liability for
fraud.
|
|
|
VARIATIONS
|
No
variation of this agreement or any of the documents in the agreed form shall be
valid unless it is in writing and signed by or on behalf of each of the parties
to this agreement.
|
|
WAIVER
|
No waiver
by the Purchaser of any breach or non-fulfilment by the Vendors of any
provisions of this agreement shall be deemed to be a waiver of any subsequent or
other breach of that or any other provision and no failure to exercise or delay
in exercising any right or remedy under this agreement shall constitute a waiver
thereof. No single or partial exercise of any right or remedy under
this agreement shall preclude or restrict the further exercise of any such right
or remedy. The rights and remedies of the Purchaser provided in this
agreement are cumulative and not exclusive of any rights and remedies provided
by law.
|
|
AGREEMENT
CONTINUES IN FORCE
|
This
agreement shall remain in full force and effect so far as concerns any matter
remaining to be performed at Completion even though Completion shall have taken
place.
|
|
SEVERABILITY
|
The
invalidity, illegality or unenforceability of any provisions of this agreement
shall not affect the continuation in force of the remainder of this
agreement.
|
|
NOTICES
|
Any
notice to be given pursuant to the terms of this agreement shall be given in
writing to the party due to receive such notice at (in the case of a company)
its registered office from time to time or (in the case of an individual) at his
address set out in this agreement or such other address as may have been
notified to the other parties in accordance with this clause 0 Notice shall
be delivered personally or sent by first class prepaid recorded delivery or
registered post (airmail if overseas) or by facsimile transmission and shall be
deemed to be given in the case of delivery personally on delivery and in the
case of posting (in the absence of evidence of earlier receipt) 48 hours after
posting (six days if sent by airmail) and in the case of facsimile transmission
on completion of the transmission provided that the sender shall have received
printed confirmation of transmission.
|
|
COUNTERPARTS
|
This
agreement may be executed in any number of counterparts each of which when
executed by one or more of the parties hereto shall constitute an original but
all of which shall constitute one and the same instrument.
|
|
THIRD
PARTY RIGHTS
|
A person
who is not party to this agreement shall have no right under the Contracts
(Rights of Third Parties) Xxx 0000 to enforce any term of this
agreement. This clause does not affect any right or remedy of any
person which exists or is available otherwise than pursuant to that
Act.
20
GOVERNING
LAW AND JURISDICTION
|
|
This
agreement shall be governed by and construed in accordance with the laws
of England.
|
|
|
The
parties irrevocably agree that the courts of England shall have exclusive
jurisdiction to settle any dispute which may arise out of or in connection
with this agreement and that accordingly, any suit, action or proceedings
(together in this clause 0 referred to as "Proceedings") arising
out of or in connection with this agreement shall be brought in such
courts.
|
|
|
The
parties irrevocably waive any objection which they may have now or
hereafter to the laying of the venue of any Proceedings in such court as
is referred to in this clause 0 any claim that any such Proceedings
have been brought in an inconvenient forum and further irrevocably agree
that a judgment in any Proceedings brought in the English courts shall be
conclusive and binding upon the parties and may be enforced in the courts
of any other jurisdiction.
|
|
|
The
parties expressly and specifically agree and accept the terms of this
clause 0 sign this agreement in recognition of this
fact.
|
|
|
In
accordance with clause 0 of this agreement, the Vendors appoint the
Vendor's Agent to accept service on their behalf of any Agent's Matters in
respect of which they have made an appointment pursuant to clause 0 save
that in the event that a claim specifically relates to the breach of any
obligation of a Corporate Vendor then notice shall be served on the
relevant Corporate Vendor in addition to the Vendor's
Agent.
|
IN WITNESS of which the
parties or their duly authorised representatives have executed this agreement as
a deed.
21
|
Signed
as a deed,
but not delivered until the first date specified on page 1, in the name
and on behalf of XXX
XXXXX by his attorney in the presence of:
|
Signature
|
/s/
Xxxxx Xxxxxx
|
|
|
as
attorney for XXX
XXXXX
|
|
Witness
signature
|
/s/ Xxxx XxXxxx
|
||
|
Witness
name
|
Xxxx XxXxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Xxxxxxxxx Xxxx XXX
|
||
|
000 Xxxxxxxx
|
|||
|
Xxxxxxxxx Xxxx Xxxx
|
|
Signed
as a deed,
but not delivered until the first date specified on page 1, by XXXX XXXX in the
presence of:
|
Signature
|
/s/
Xxxx
Xxxx
|
|
Witness
signature
|
/s/ Xxxx XxXxxx
|
||
|
Witness
name
|
Xxxx XxXxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Xxxxxxxxx Xxxx XXX
|
||
|
000 Xxxxxxxx
|
|||
|
Xxxxxxxxx Xxxx Xxxx
|
|
Signed
as a deed,
but not delivered until the first date specified on page 1, by XXXXX XXXXXX in the
presence of:
|
Signature
|
/s/
Xxxxx
Xxxxxx
|
|
Witness
signature
|
/s/ Xxxx XxXxxx
|
||
|
Witness
name
|
Xxxx XxXxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Xxxxxxxxx Xxxx XXX
|
||
|
000 Xxxxxxxx
|
|||
|
Xxxxxxxxx Xxxx Xxxx
|
|
Signed
as a deed,
but not delivered until the first date specified on page 1, in
the name and on behalf of XXXXXXX XXXXXXX by his
attorney in the presence of:
|
Signature
|
s/
Xxxxx Xxxxxx
|
|
|
as
attorney for XXXXXXX
XXXXXXX
|
|
Witness
signature
|
/s/ Xxxx XxXxxx
|
||
|
Witness
name
|
Xxxx XxXxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Xxxxxxxxx Xxxx XXX
|
||
|
000 Xxxxxxxx
|
|||
|
Xxxxxxxxx Xxxx Xxxx
|
|
Signed
as a deed,
but not delivered until the first date specified on page 1, in
the name and on behalf of XXXX XXXXXX by his
attorney in the presence of:
|
Signature
|
s/ Xxxxx Xxxxxx
|
|
|
as
attorney for XXXX
XXXXXX
|
|
Witness
signature
|
/s/ Xxxx XxXxxx
|
||
|
Witness
name
|
Xxxx XxXxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Xxxxxxxxx Xxxx XXX
|
||
|
000 Xxxxxxxx
|
|||
|
Xxxxxxxxx Xxxx Xxxx
|
|
Signed
as a deed,
but not delivered until the first date specified on page 1, in
the name and on behalf of XXXXXXX XXXXXXX by his
attorney in the presence of:
|
Signature
|
s/ Xxxxx Xxxxxx
|
|
|
as
attorney for XXXXXXX
XXXXXXX
|
|
Witness
signature
|
/s/ Xxxx XxXxxx
|
||
|
Witness
name
|
Xxxx XxXxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Xxxxxxxxx Xxxx XXX
|
||
|
000 Xxxxxxxx
|
|||
|
Xxxxxxxxx Xxxx Xxxx
|
|
Signed
as a deed,
but not delivered until the first date specified on page 1, in
the name and on behalf of REG XXXX by his attorney
in the presence of:
|
Signature
|
s/ Xxxxx Xxxxxx
|
|
|
as
attorney for REG
XXXX
|
|
Witness
signature
|
/s/ Xxxx XxXxxx
|
||
|
Witness
name
|
Xxxx XxXxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Xxxxxxxxx Xxxx XXX
|
||
|
000 Xxxxxxxx
|
|||
|
Xxxxxxxxx Xxxx Xxxx
|
|
Signed
as a deed,
but not delivered until the first date specified on page 1, in the name
and on behalf of XXXXXX
XXXXX by her attorney in the presence of:
|
Signature
|
s/ Xxxxx Xxxxxx
|
|
|
as
attorney for XXXXXX
XXXXX
|
|
Witness
signature
|
/s/ Xxxx XxXxxx
|
||
|
Witness
name
|
Xxxx XxXxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Xxxxxxxxx Xxxx XXX
|
||
|
000 Xxxxxxxx
|
|||
|
Xxxxxxxxx Xxxx Xxxx
|
|
Signed
as a deed,
but not delivered until the first date specified on page 1, in the name
and on behalf of XXXXX
XXXXXX XXXXXX by her attorney
in the presence of:
|
)))
|
Signature
|
s/ Xxxxx Xxxxxx
|
|
as
attorney for XXXXX
XXXXXX
XXXXXX
|
|
Witness
signature
|
/s/ Xxxx XxXxxx
|
||
|
Witness
name
|
Xxxx XxXxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Xxxxxxxxx Xxxx XXX
|
||
|
000 Xxxxxxxx
|
|||
|
Xxxxxxxxx Xxxx Xxxx
|
|
Signed
as a deed,
but not delivered until the first date specified on page 1, in the name
and on behalf of XXXXXX
XXXX by her attorney in the presence of:
|
Signature
|
s/ Xxxxx Xxxxxx
|
|
|
as
attorney for XXXXXX
XXXX
|
|
Witness
signature
|
/s/ Xxxx
XxXxxx
|
||
|
Witness
name
|
Xxxx XxXxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Xxxxxxxxx Xxxx XXX
|
||
|
000 Xxxxxxxx
|
|||
|
Xxxxxxxxx Xxxx Xxxx
|
|
Signed
as a deed,
but not delivered until the first date specified on page 1, in the name
and on behalf of XXX
XXXXXXX by her attorney in the presence of:
|
Signature
|
s/
Xxxxx Xxxxxx
|
|
|
as
attorney for XXX
XXXXXXX
|
|
Witness
signature
|
/s/ Xxxx XxXxxx
|
||
|
Witness
name
|
Xxxx XxXxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Xxxxxxxxx Xxxx XXX
|
||
|
000 Xxxxxxxx
|
|||
|
Xxxxxxxxx Xxxx Xxxx
|
|
Executed
as a deed,
but not delivered until the first date specified on page 1, by ENDLESS (NO. 6) LLP by
its attorney in the presence of a witness:
|
Signature
|
/s/ Xxxxx Xxxxxx
|
|
|
Name
(block capitals)
|
Xxxxx
Xxxxxx
|
||
|
as
attorney for
ENDLESS
(NO. 6)
LLP
|
|
Witness
signature
|
/s/ Xxxx XxXxxx
|
||
|
Witness
name
|
Xxxx XxXxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Xxxxxxxxx Xxxx XXX
|
||
|
000 Xxxxxxxx
|
|||
|
Xxxxxxxxx Xxxx Xxxx
|
|
Executed
as a deed, but not delivered until the first date specified on page 1, by
THE NORTH EAST
CO-INVESTMENT FUND LIMITED PARTNERSHIP by its attorney NSEI GENERAL PARTNER
LIMITED by a director in the presence of a witness:
|
Signature
|
/s/ Xxxxxx Xxxxxxx
|
|
|
Name
(block capitals)
|
Xxxxxx
Xxxxxxx
|
||
|
Director
of attorney
|
|
Witness
signature
|
/s/
Xxxxxxxxx Xxx-Xxxxxx
|
||
|
Witness
name
|
Xxxxxxxxx Xxx-xxxxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Xxxxxxxx Xxxxx
|
||
|
Xxxxxxxx, Xxxxxxxxx
|
|
Executed
as a deed,
but not delivered until the first date specified on page 1, by ALBANY MOLECULAR RESEARCH,
INC. by a director in the presence of a witness acting by its duly
appointed attorney Xxxxxxx Xxxx Xxxxxxxx:
|
Signature
|
/s/ Xxxxxxx X. Xxxxxxxx
|
|
|
Name
(block
capitals)
|
Xxxxxxx
X. Xxxxxxxx
|
||
|
duly
appointed
attorney
|
|
Witness
signature
|
/s/ Xxxxxxx Xxxxxxx
|
||
|
Witness
name
|
Xxxxxxx Xxxxxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Princes Exchange
|
||
|
Princes Square
|
|||
|
Leeds, United
Kingdom
|
|
Executed
as a deed,
but not delivered until the first date specified on page 1, by EXCELSYN LIMITED by a
director in the presence of a witness:
|
Signature
|
/s/
Xxxxx Xxxxxx
|
|
|
Name
(block capitals)
|
Xxxxx
Xxxxxx
|
||
|
Director
|
|
Witness
signature
|
/s/ Xxxx XxXxxx
|
||
|
Witness
name
|
Xxxx
XxXxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Xxxxxxxxx Xxxx XXX
|
||
|
000 Xxxxxxxx
|
|||
|
Xxxxxxxxx Xxxx Xxxx
|
|
Executed
as a deed,
but not delivered until the first date specified on page 1, by EXCELSYN MOLECULAR RESEARCH
LIMITED by a director in the presence of a witness:
|
Signature
|
/s/ Xxxxx Xxxxxx
|
|
|
Name
(block capitals)
|
Xxxxx
Xxxxxx
|
||
|
Director
|
|
Witness
signature
|
/s/ Xxxx XxXxxx
|
||
|
Witness
name
|
Xxxx XxXxxx
|
||
|
(block
capitals)
|
|||
|
Witness
address
|
Xxxxxxxxx Xxxx XXX
|
||
|
000 Xxxxxxxx
|
|||
|
Xxxxxxxxx Xxxx Xxxx
|
