EXHIBIT 2.1
DATED 0XX XXXXXX 0000
XXXXXXX XXXXXXXXX PUBLIC LIMITED COMPANY
and
COCA-COLA HOLDINGS (UNITED KINGDOM) LIMITED
and
THE COCA-COLA COMPANY
and
BOTTLING HOLDINGS (GREAT BRITAIN) LIMITED
and
COCA-COLA ENTERPRISES INC.
______________________________
AGREEMENT
for the sale and purchase of
all the issued share capital
of Amalgamated Beverages
Great Britain Limited
______________________________
CONTENTS
Clause Page
1. Interpretation 2
2. Sale and Purchase of the Shares and the Deferred Shares 8
3. Consideration 9
4. Conditions Precedent 10
5. Warranties 11
6. Purchaser's and Coca-Cola Enterprises' Warranties and
Undertakings 13
7. Confirmations 18
8. Covenants up to Completion 18
9. Rescission 20
10. Tax Deed 21
11. Dividends 21
12. Completion 23
13. Loan Accounts 29
14. Guarantees 30
15. Pensions, Properties and Taxation 31
16. Employees 32
17. Protective Covenant 33
18. Post Completion Arrangements 34
19. Announcements 35
20. Notices 35
21. Resolutions and Waivers 36
22. General 37
23. Whole Agreement 40
24. Coca-Cola Guarantee 40
25. Purchaser's Xxxxxxxxx 00
00. Governing Law 43
Schedules
1. Sellers' Shareholdings and Entitlements 44
2. Particulars of the Company 45
3. Particulars of the Subsidiaries 46
4. Properties 72
5. Warranties 74
6. Pensions 103
7. CCSB Employees 115
8. CS Group Employees 116
9. Provisions Relating to the Warranties 117
10. List of Documents to be signed by the parties 126
11. Conduct of Proceeds Apportionment Appeal 128
Documents To Accompany Agreement:
(1) Audited Accounts of ABGB and CCSB
(2) Disclosure Letter
(3) Brand Letter Agreement
(4) Actuary's Letter
(5) Option Form
(6) Goals and Guiding Principles Agreement
(7) Management Accounts
And Agreed Forms of:
(1) Tax Deed
(2) Note Instrument
(3) UBS Letter of Credit
(4) Licensing Agreements
(5) Bottler's Agreement
(6) Insurance Services Agreement
(7) Termination Agreements
(8) Agreement for Lease
(9) Maintenance Agreement
(10) Water Supply Agreement
(11) Colwall Licence Letter
(12) Property Management Agreement
(13) Bournville Licence
(14) Transfers
(15) Title Deeds Undertaking
(16) Legal Opinion
(17) Letter Re. Sodastream Premises at Peterborough
(18) Durham Side Letter
(19) Side Letter relating to the Notes
THIS AGREEMENT is made on 9th August , 1996 BETWEEN:
(1) CADBURY SCHWEPPES PUBLIC LIMITED COMPANY (registered
number 52457) whose registered office is at 00 Xxxxxxxx
Xxxxxx, Xxxxxx X0X 0XX ("Cadbury Schweppes");
(2) COCA-COLA HOLDINGS (UNITED KINGDOM) LIMITED (registered
number 1724995) whose registered office is at 0 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxx X0 0XX ("Coca-Cola UK");
(3) THE COCA-COLA COMPANY, a company incorporated in
Delaware, USA and having its principal place of business
at Xxx Xxxx-Xxxx Xxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, XXX
("Coca-Cola");
(4) BOTTLING HOLDINGS (GREAT BRITAIN) LIMITED (registered
number 3173938) whose registered office is at 0
Xxxxxxxxx, Xxxxxx XX0X 0XX (the "Purchaser"); and
(5) COCA-COLA ENTERPRISES INC., a company incorporated in
Delaware, USA and having its principal place of business
at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx, 00000, XXX
("Coca-Cola Enterprises").
WHEREAS:
(A) Amalgamated Beverages Great Britain Limited (the
"Company" or "ABGB") is a private company limited by
shares short particulars of which are set out in
Schedule 2 having an authorised capital of US$2,040.82
and Pound Sterling 1,104,082 divided into 900,000 5% non-
cumulative preference shares of Pound Sterling 1 each,
all of which have been issued partly paid at Pound
Sterling 0.01 each (the "Preference Shares"), 204,082
ordinary shares of US$0.01 each, all of which have been
issued fully paid or credited as fully paid (the
"Ordinary Shares") and 204,082 deferred shares of Pound
Sterling 1 each, all of which have been issued fully paid
or credited as fully paid (the "Deferred Shares")
(B) The Sellers are beneficially entitled to all the issued
share capital of the Company in the proportions set out
opposite their respective names in Schedule 1
(C) The Company is the beneficial owner of the entire issued
share capitals of all the companies short details of
which are set out in Schedule 3
(D) In reliance upon the representations, warranties and
undertakings set out in this agreement and the other
documents referred to in this agreement, the Sellers wish
to sell and the Purchaser wishes to purchase all the
issued share capital of the Company on the terms and
subject to the conditions set out in this agreement
2
IT IS AGREED as follows:
1. INTERPRETATION
(1) In this agreement:
"Accounts" means the audited balance sheets as at the
Accounts Date and audited profit and loss accounts for
the period of 52 weeks ended on that date of ABGB and
CCSB (including in the case of ABGB the audited
consolidated balance sheet as at that date and the
audited consolidated profit and loss account for that
period) and the notes and directors' reports relating to
them, a copy of each of which has been initialled for the
purpose of identification by Cadbury Schweppes'
Solicitors, Coca-Cola's Solicitors and the Purchaser's
Solicitors;
"Accounts Date" means 30th December, 1995;
"Actuary's Letter" means the letter dated 2nd August,
1996 from the Seller's Actuary (as defined in Schedule 6)
to the Purchaser's Actuary (as defined in Schedule 6) a
copy of which is attached as Appendix B to Schedule 6;
"Agreed Form" means, in relation to any document, the
form of that document which has been initialled for the
purpose of identification by Cadbury Schweppes'
Solicitors (in the case of documents to be executed by
Cadbury Schweppes or a member of the Cadbury Schweppes'
Group), Coca-Cola's Solicitors (in the case of documents
to be executed by Coca-Cola or Coca-Cola UK or a member
of the Coca-Cola Group) and the Purchaser's Solicitors
(in the case of documents to be executed by the Purchaser
or Coca-Cola Enterprises) or by Cadbury Schweppes'
Solicitors, Coca-Cola's Solicitors and the Purchaser's
Solicitors in the case of all other documents, subject to
such amendments to any such documents as may be agreed by
the parties to such documents;
"Agreement" means the agreement relating to the transfer
of various factory and warehouse premises in England,
Wales and Scotland including, inter alia, the Transfer
Properties dated 10th November, 1986 and made between
Cadbury Schweppes (1) and Schweppes Limited (2) as
supplemented by an agreement dated 5th January, 1987 made
between Schweppes Limited (1) and CCSB (2);
"Agreement for Lease" means the agreement for lease in
respect of the freehold factory being part of the
Property at Colwall to be made between Cadbury Schweppes
(1) and CCSB (2) in the Agreed Form;
3
"Ancillary Agreements" means (a) the CCSB Special Product
Business 1995, (b) the Cadbury Beverages Limited Contract
Packing Orders: General Terms and Conditions, (c) the
Cadbury Beverages Limited Standard Contract Packing Order
and Specifications, (d) a distribution agreement
(covering the Channel Islands) between CCSB and Cadbury
Beverages Limited, (e) a distribution agreement (covering
airlines and shipping) between CCSB and Cadbury Beverages
Limited and (f) a distribution agreement (covering the
world) between Duchy Originals Limited, Cadbury Beverages
Limited and CCSB;
"Aylesbury" means the freehold Property shortly described
in paragraph A1 of Part 1 of Schedule 4;
"Bottler's Agreement" means the bottler's agreement
between Coca-Cola, The Coca-Cola Export Corporation and
CCSB including the arrangements contained in the
appendices and schedules to that agreement; a letter of
authorisation from Coca-Cola to CCSB to use the xxxx
Coca-Cola as part of the corporate name of CCSB; a letter
of amendment from Coca-Cola to CCSB relating to Appendix
IV of the bottler's agreement; a contract packing
agreement between Coca-Cola, The Coca-Cola Export
Corporation and CCSB; a letter from Coca-Cola and The
Coca-Cola Export Corporation to Coca-Cola Enterprises in
relation to production and distribution in Northern and
Central Italy; a letter from Coca-Cola and The Coca Cola
Export Corporation to Coca-Cola Enterprises in relation
to a supplemental agreement, a supplemental agreement
between Coca-Cola, The Coca-Cola Export Corporation and
CCSB relating to the Restrictive Trade Practices Xxx 0000
and a letter from Coca-Cola and The Coca-Cola Export
Corporation to CCSB relating to clauses 12(a) and 12(b)
of the Bottler's Agreement, in each case, in the Agreed
Form;
"Bournville Licence" means the licence pursuant to which
CCSB is to occupy part of the Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxx, X00 0XX in the Agreed Form;
"Brand Letter Agreement" means the brand letter agreement
executed by and between Cadbury Schweppes and Coca-Cola
Enterprises dated 3rd June, 1996 a copy of which has been
initialled for the purposes of identification by Cadbury
Schweppes' Solicitors and the Purchaser's Solicitors;
"Business Day" means a day (other than a Saturday or
Sunday) on which banks are open generally for business in
London, England and Atlanta, Georgia, USA;
"Cadbury Schweppes' Group" means Cadbury Schweppes, its
subsidiaries, holding companies and subsidiaries of such
holding companies, but excluding the Companies;
4
"Cadbury Schweppes' Solicitors" means Xxxxxxxxx and May
of 00 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX;
"CCSB" means Coca-Cola & Schweppes Beverages Limited,
short particulars of which are set out in Schedule 3;
"CCSB Employees" means those persons currently employed
by a Company whose names are listed in Part 1 of Schedule
7;
"CIGNA" means CIGNA Insurance Co. of Europe S.A.-N.V.;
"CS Group Employees" means those persons currently
employed by Cadbury Schweppes but engaged in the business
of the Companies and whose names are listed in Schedule
8;
"Coca-Cola Group" means Coca-Cola, its subsidiaries,
holding companies and subsidiaries of such holding
companies;
"Coca-Cola's Solicitors" means Xxxxxxxx Chance of 000
Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX;
"Colwall Lease" means a lease dated 30th June, 1897 made
between Xxxxxxxx Xxxxxx (1) and Xxxxxx Xxxxxx Xxxxxx and
Xxxx Xxxxxx Xxxxxx (2);
"Colwall Licence Letter" means a letter confirming the
surrender by operation of law and mutual release of
obligations in respect of the licence dated 5th January,
1987 made between Cadbury Schweppes (1) and CCSB (2) of
the Property at Colwall in the Agreed Form;
"Companies" means the Company and the Subsidiaries and
"Company" means any of them;
"Completion" means completion of the sale and purchase of
the Shares and Deferred Shares in accordance with
clause 12;
"Disclosure Letter" means the letter of the same date as
this agreement from Cadbury Schweppes and Coca-Cola UK
to the Purchaser;
"Dividend" means the amount of any dividend declared by
the Company on or before Completion under clause 11;
"Durham Side Letter" means the letter from Cadbury
Schweppes to Coca-Cola relating to the production plant
at Durham, in the Agreed Form;
5
"Goals and Guiding Principles Agreement" means the
Agreement on Goals and Guiding Principles for the
Beverages of The Coca-Cola Company in Great Britain and
the Isle of Man between Coca-Cola, The Coca-Cola Export
Corporation, Coca-Cola UK and
Coca-Cola Enterprises dated 8th August, 1996;
"holding company" means a holding company for the
purposes of the Companies Xxx 0000;
"Insolvency Act" means Insolvency Xxx 0000;
"Insurance Services Agreement" means an agreement for the
provision by Cadbury Schweppes to CCSB of insurance
claims handling services for a transitional period
between Cadbury Schweppes (1) and CCSB (2) in the Agreed
Form;
"Knowledge Warranties" means those of the Warranties
which are expressed to be given based upon the knowledge
or awareness of the Sellers;
"Legal Opinion" means the legal opinion of Xxxxxx &
Xxxxxx in the Agreed Form;
"Licensing Agreements" means the licensing agreements
between CCSB and the following persons: (i) Schweppes
Limited (1), Schweppes International Limited (2) and X.
Xxxx & Co. Limited (3); (ii) DP Beverages Limited; (iii)
Canada Dry Corporation Limited; (iv) Sunkist Soft Drinks
(British Isles) Limited; and (v) CS Beverages Limited, in
each case in the Agreed Form;
"Maintenance Agreement" means the agreement to be made
between Cadbury Schweppes (1) and CCSB (2) relating to
the repair and maintenance of the spring and pipeline the
subject of the Colwall Lease in the Agreed Form;
"Management Accounts" means the unaudited management
accounts of CCSB for the seven monthly accounting
periods of CCSB ended on 13th July, 1996, a copy of which
has been initialled for the purposes of identification by
Cadbury Schweppes' Solicitors, Coca-Cola's Solicitors and
the Purchaser's Solicitors;
"Material Properties" means the Properties marked "M" in
Part 1 of Schedule 4;
"Notes" means the loan notes, one of Pound Sterling
177,456,750 nominal and two of Pound Sterling 160,000,000
nominal each (or such other amount as may be determined
in accordance with this agreement) to be issued (subject
to clause 3(3)) pursuant to the Note Instrument by the
Purchaser and guaranteed by Coca-Cola Enterprises;
6
"Note Instrument" means the instrument in the Agreed Form
pursuant to which the Notes will be constituted;
"Properties" means the properties shortly described in
Part 1 of Schedule 4 and "Property" means any of them and
includes every part of each of them;
"Property Management Agreement" means the agreement
pursuant to which Cadbury Schweppes agrees to manage the
Properties for a specified period between Cadbury
Schweppes (1) and CCSB (2) in the Agreed Form;
"Purchaser's Solicitors" means Xxxxx & Overy of Xxx Xxx
Xxxxxx, Xxxxxx XX0X 0XX;
"Sellers" means Cadbury Schweppes and Coca-Cola UK, and
"Seller" means either of them, save that for the purposes
of Schedule 6 "Seller" shall mean Cadbury Schweppes
alone;
"Shares" means all the Ordinary Shares and all the
Preference Shares;
"subsidiary" means a subsidiary for the purposes of the
Companies Xxx 0000;
"Subsidiaries" means all the companies mentioned in
Schedule 3 and "Subsidiary" means any of them;
"Taxation" has the same meaning as in the Tax Deed;
"Tax Deed" means the Tax Deed in the Agreed Form;
"Tax Sharing Agreement" means the agreement made as of
19th July, 1994 between Cadbury Schweppes, The Coca-Cola
Export Corporation, Coca-Cola, Coca-Cola UK, the Company
and CCSB;
"Taxes Act 1988" means Income and Corporation Taxes Xxx
0000;
"TCGA 1992" means Taxation of Chargeable Gains Xxx 0000;
"Termination Agreements" means the termination agreements
relating to licensing arrangements and a shareholders'
agreement and other agreements existing prior to the date
of this agreement and comprising: (1) a letter from
Cadbury Schweppes to Coca-Cola and The Coca-Cola Export
Corporation; (2) a letter from Cadbury Schweppes to CCSB,
Cadbury Beverages Limited, Schweppes Limited, Schweppes
International Limited, X. Xxxx & Co. Limited, CS
Beverages Limited, Cadbury Beverages BV, Canada Dry
7
Corporation Limited, Sunkist Soft Drinks (British Isles)
Limited and Sunkist Growers Inc.; and (3) a letter from
Coca-Cola to The Coca-Cola Export Corporation, CCSB,
Sodastream Limited and Refreshment Spectrum Limited, in
each case in the Agreed Form;
"Title Deeds Undertaking" means an undertaking by Cadbury
Schweppes to CCSB in respect of the title deeds for the
Properties in the Agreed Form;
"Transfers" means the assignation, assignment or transfer
in the Agreed Form of the Transfer Properties to CCSB or
as the Purchaser shall direct;
"Transfer Properties" means the properties shortly
described in Part 2 of Schedule 4 and "Transfer Property"
means any of them and includes every part of each of
them;
"UBS Letter of Credit" means an irrevocable standby
letter of credit from Union Bank of Switzerland, New York
Branch to Cadbury Schweppes in the Agreed Form;
"VATA 1994" means the Value Added Tax Xxx 0000;
"Warranty Claim" means any claim made by the Purchaser in
respect of the Warranties;
"Warranties" means the representation and warranty on the
part of the Sellers contained in clause 5(1); and
"Water Supply Agreement" means the agreement to be made
between Cadbury Schweppes (1) and CCSB (2) in respect of
the supply of water to the freehold factory being part of
the Property at Colwall in the Agreed Form.
(2) Any reference, express or implied, to an enactment
includes references to:
(a) that enactment as amended, extended, re-enacted or
applied by or under any other enactment before or
after this agreement; and
(b) any subordinate legislation made before this
agreement under any enactment, including one within
(a) above.
(3) Save in relation to Part E of Schedule 5, where any
statement is qualified by the expression "so far as the
Sellers are aware" or "to the best of the Sellers'
knowledge, information and belief" or any similar
expression that statement shall be and be deemed to be
limited:
8
(a) in the case of Cadbury Schweppes, to the actual
knowledge of X. Xxxx, X. Xxxxxxxx, X.X. Xxxxxxx and
X.X.X. Xxxxx and, in the case of Warranties in
Part D of Schedule 5 only, X. Xxxxxx; and
(b) in the case of Coca-Cola UK, to the actual knowledge
of X. Xxxxxxx, X.X. Xxxx, X. Xxxxxx, X.X. Xxxxxx,
X. Xxxxx and X. Xxxxxx,
in each case, reasonable enquiry having been made, either
directly or through their designees, of each of the
directors of CCSB listed in Schedule 3.
(4) A person shall be deemed to be connected with another if
that person is connected with another within the meaning
of section 839 Taxes Act 1988.
(5) Words denoting persons shall include bodies corporate and
unincorporated associations of persons.
(6) The headings in this agreement do not affect its
interpretation.
2. SALE AND PURCHASE OF THE SHARES AND THE DEFERRED SHARES
(1) Subject to clause 4, each of the Sellers shall sell, and
the Purchaser shall purchase, those of the Shares set
opposite its name in Schedule 1 together with all rights
attaching to them now or after the date of this agreement
other than the rights to receive the Dividend.
(2) Subject to clause 4, each of the Sellers shall sell, and
Coca-Cola Enterprises shall purchase, those of the
Deferred Shares set opposite its name in Schedule 1
together with all rights attaching to them now or after
the date of this agreement.
(3) Each of the Sellers covenants with the Purchaser as
follows:
(a) that it has the right to sell and transfer the full
legal and beneficial interest in the Shares set
opposite its name in Schedule 1 to the Purchaser on
the terms set out in this agreement; and
(b) that on or after Completion it will, at its own cost
and expense, execute and do all such deeds,
documents, acts and things as the Purchaser may from
time to time reasonably require in order to vest any
of the Shares set opposite that Seller's name in
Schedule 1 in the Purchaser.
9
(4) Each of the Sellers covenants with Coca-Cola Enterprises
as follows:
(a) that it has the right to sell and transfer the full
legal and beneficial interest in the Deferred Shares
set opposite its name in Schedule 1 to Coca-Cola
Enterprises on the terms set out in this agreement;
and
(b) that on or after Completion it will, at its own cost
and expense, execute and do all such deeds,
documents, acts and things as Coca-Cola Enterprises
may from time to time reasonably require in order to
vest any of the Deferred Shares set opposite that
Seller's name in Schedule 1 in Coca-Cola
Enterprises.
(5) The Shares and the Deferred Shares shall be sold free
from all liens, charges, equities and encumbrances and
other rights exercisable by third parties.
3. CONSIDERATION
(1) The consideration for the sale of those of the Shares to
be sold by Coca-Cola UK shall be the sum of Pound
Sterling 615,958,440 payable in cash on Completion.
(2) Subject to clause 11, the consideration for the sale of
those of the Shares to be sold by Cadbury Schweppes shall
be the sum of Pound Sterling 497,456,750 which shall be
satisfied by the allotment on Completion to Cadbury
Schweppes of the Notes.
(3) Cadbury Schweppes may at any time before the day which is
14 days before Completion, deliver a notice in writing to
the Purchaser and Coca-Cola Enterprises, with a copy for
information only to Coca-Cola UK, electing irrevocably to
receive the consideration (or part of it) stated in
clause 3(2) in cash on Completion, rather than the issue
of the Notes. The failure to deliver to Coca-Cola UK a
copy of the notice of election shall not affect the
validity of the election under this paragraph.
(4) The aggregate consideration for the sale of the Deferred
Shares shall be the sum of Pound Sterling 1 payable in
cash on Completion, with Cadbury Schweppes being entitled
to 51p of that sum and
Coca-Cola UK to the balance.
(5) Of the Pound Sterling 1,113,415,190 to be paid for the
Shares (subject to any deductions under clause 11), Pound
Sterling 9,000 shall be apportioned to the Preference
Shares with the balance being apportioned to the Ordinary
Shares.
10
4. CONDITIONS PRECEDENT
(1) Without prejudice to clause 9, the sale and purchase of
the Shares and the Deferred Shares is conditional on:
(a) a resolution to approve the sale of those of the
Shares and the Deferred Shares to be sold by Cadbury
Schweppes under this agreement being passed at an
extraordinary general meeting of Cadbury Schweppes;
(b) (i) the Director General of Fair Trading
notifying the Purchaser in terms satisfactory
to it that it is not the intention of the
Secretary of State to refer the sale and
purchase of the Shares and the Deferred Shares
to the Monopolies and Mergers Commission for
investigation; or
(ii) the Commission of the European Communities
notifying the Purchaser that it will neither
initiate proceedings under Article 6(1)(c) of
Council Regulation (EEC) 4064/89 in relation to
the purchase of the Shares and the Deferred
Shares by the Purchaser or Coca-Cola
Enterprises or any matter arising from it, nor
refer the purchase or any matter arising from
it to the competent authorities of a Member
State under Article 9(1) of that Regulation; or
(iii) the Commission of the European Communities
adopting a decision under Article 8(2) of
Council Regulation (EEC) 4064/89 declaring the
purchase compatible with the common market and
the Purchaser accepting in its absolute
discretion to be bound by any conditions and/or
obligations attached by the Commission of the
European Communities to that decision under
Article 8(2);
(c) the Commission of the European Communities having
granted negative clearance or an exemption from the
prohibition in Article 85(1) of the EC Treaty or an
equivalent comfort letter in respect of each
Licensing Agreement and the Brand Letter Agreement
without attaching any conditions or requiring any
modifications which Cadbury Schweppes in its
absolute discretion considers unacceptable.
(2) The parties may waive condition (b) in subclause (1)
above in whole or in part, at any time after 21 days from
the date of notification of the agreement to the persons
referred to in that condition, by agreement in writing
between Cadbury Schweppes, the Purchaser and Coca-Cola
UK.
11
(3) Cadbury Schweppes may waive either or both of conditions
(a) and (c) in subclause (1) above in whole or in part at
any time by notice in writing to the Purchaser's
Solicitors and Coca-Cola's Solicitors provided that Cadbury
Schweppes may only waive condition (c) in subclause (1) above
with the prior agreement in writing of the Purchaser where a
requirement of the Commission of the European Communities
in relation to the grant of negative clearance or an
exemption or an equivalent comfort letter would, in the
reasonable opinion of the Purchaser, have an adverse
effect on the business of any of the Companies, the
Purchaser or Coca-Cola Enterprises.
(4) If all the conditions in subclause (1) above are not
fulfilled or waived on or before 1st December, 1996 all
the preceding clauses of this agreement (and any
provisions of Schedule 4 which are required to be
complied with during the period between the date of this
agreement and 1st December, 1996) shall cease to have
effect and none of the parties (provided it shall have
fulfilled its obligations under subclause (5) below) will
have any rights or liabilities under this agreement (but
without prejudice to any obligations contained in clauses
19, 20, 22, 23, 24, 25 and 26 capable of applying after
the preceding clauses of this agreement shall have ceased
to have effect).
(5) Each of the parties shall use all reasonable endeavours
to procure that the conditions in subclause (1) above
(insofar as each such condition relates to or must be
fulfilled by such a party) are fulfilled on or before
13th September, 1996 and in any event by the date
specified in subclause (4) above.
5. WARRANTIES
(1) Subject to the provisions contained in Schedule 9, the
Sellers represent and warrant to the Purchaser that,
except to the extent fairly disclosed to the Purchaser
(a) in the Disclosure Letter or (b) in any of the
documents attached to the Disclosure Letter to which
document the attention of the Purchaser is specifically
drawn in the Disclosure Letter or (c) in any of the
documents listed in Annexure 2 to the Disclosure Letter,
each of the statements set out in Schedule 5 is true and
accurate, save that in relation to paragraph A2(3) and A9
of Schedule 5, each of the Sellers represents and
warrants to the Purchaser that, in relation to itself or
its Shares only, each of the statements set out in those
paragraphs is true and accurate.
12
A matter disclosed to the Purchaser in any of the
environmental reports listed in I2 of the Index to the
Disclosure Letter or in the text of the Disclosure Letter
against Warranty A8 by reference to those reports will
not be fairly disclosed if it is contained in a statement
of a speculative nature which refers to possibilities of
problems or liabilities as opposed to known actual
problems or liabilities. In this regard the following
serve as examples of statements of a speculative nature
which would not be fair disclosures:
(a) "Treatment of plant spillage may result in the build
up of contamination, most significantly due to low
pH of the material. Acidic ground conditions may
ultimately cause corrosion of materials of
construction. Depending upon the depth of the
groundwater, contamination could conceivably arise
as a result of the presence of ground pollution"
(page 9 of the HASTAM report on Xxxxxx Keynes -I2(h)
of the Index to the Disclosure Letter); and
(b) "However, it should be noted that some past
practices may have resulted in historical ground
contamination for which no visual evidence remains"
(page 7 of the HASTAM report on Colwall - I2(g) of
the Index to the Disclosure Letter).
(2) Each Seller agrees with the Purchaser (as trustee for
each Company, its directors and its employees) to waive
any rights or claims which it may have in respect of any
misrepresentation, inaccuracy or omission in or from any
information or advice supplied or given by any Company,
its directors or its employees in connection with the
giving of the Warranties and the preparation of the
Disclosure Letter provided that this clause 5(2) may not
be relied upon by, and is not for the benefit of, any
director of CCSB where it can be proved that such
director has acted dishonestly or in bad faith.
(3) Without prejudice to any other remedy available to the
Purchaser or its ability to claim damages on any basis
which is available to it by reason of any of the
Warranties being breached, each Seller undertakes with
the Purchaser (for itself and as trustee for each
Company) that it shall, at the direction of the
Purchaser, pay to the Purchaser, the Company concerned
(provided that the amount of such damages would not be
increased by reason of the Seller paying such damages
directly to the Company concerned and not to the
Purchaser) or (in the case of liability to another person
which has not been discharged) the person to whom the
liability has been incurred (provided that the amount of
such damages would not be increased by reason of the
Seller paying such damages directly to that other person
and not to the Purchaser), an amount equal to any loss or
liability of the Company concerned, or of the Purchaser,
13
which arises from any of the Warranties being breached
and which would not have existed or arisen if the
Warranty in question had not been breached. The
obligations of the Sellers pursuant to this subclause
shall be subject always to the limitations contained in
Schedule 9 and the liability of a Seller to pay any sum
pursuant to this clause in respect of a breach of
Warranty shall not be increased as a result of the
application of this subclause.
6. PURCHASER'S AND COCA-COLA ENTERPRISES' WARRANTIES AND
UNDERTAKINGS
(1) Each of the Purchaser and Coca-Cola Enterprises
represents and warrants to each of the Sellers that:
(a) the Purchaser and Coca-Cola Enterprises have the
requisite power and authority to enter into and
perform this agreement and the agreements,
instruments and other documents listed in
Schedule 10 to which either of them is a party;
(b) this agreement constitutes and the agreements,
instruments and other documents listed in
Schedule 10 to which either of them is a party
constitute or will, when executed, constitute
binding obligations on the Purchaser and Coca-Cola
Enterprises (as the case may be) in accordance with
their respective terms; and
(c) compliance with the terms of this agreement and the
agreements, instruments and other documents listed
in Schedule 10 to which either of them is a party
does not and will not conflict with or constitute a
default under any provision of:
(i) any material agreement or instrument to which
the Purchaser or Coca-Cola Enterprises is a
party; or
(ii) the memorandum or articles of association or
equivalent documents of the Purchaser or
Coca-Cola Enterprises.
(2) Each of the Purchaser and Coca-Cola Enterprises agrees
with Cadbury Schweppes that, from Completion, it will
procure that the Companies shall provide to Cadbury
Schweppes from time to time, within a reasonable time
following a request from Cadbury Schweppes to do so, all
information that Cadbury Schweppes shall reasonably
request (including, without limitation, amounts invoiced)
for the purpose of verifying matters under the contracts
for the supply of goods or services to any of the
Companies by ITnet Holdings Limited (registered in
England and Wales with registered number 3036256) or
14
ITnet Limited (registered in England and Wales with
registered number 189075) or any subsidiary or holding
company of either such company, in the context of
arrangements agreed under a share purchase agreement,
dated 16th November, 1995, between Cadbury Schweppes and
ITnet Holdings Limited and ITnet Limited, provided that
Cadbury Schweppes agrees to keep confidential all
information so provided. The obligations of the
Purchaser and Coca-Cola Enterprises under this subclause
shall terminate on 1st January, 2002.
(3) (i) The Purchaser agrees to procure that, following
Completion, CCSB shall pay (within a reasonable
period of a demand from Cadbury Schweppes or its
insurers so to do), by way of additional premia to
Cadbury Schweppes, its insurers or such person as it
shall nominate, all amounts by which the actual
losses under the insurance contracts relating to
liability insurance (public/product, employers',
motor vehicles) in respect of the years 1st July,
1991 to 30th June, 1997 exceed the retro trigger
points set out below, provided always that the
amount payable by CCSB shall not exceed that amount
which is equal to the difference between the amount
of the retro trigger point in respect of the
relevant insurance year and the amount of the
maximum premia payable set out below. Any increase
in the amount of the actual losses occurring after
expiry of the 5 years from the commencement of the
relevant insurance year will be ignored for premium
adjustment purposes.
Maximum
Retro premia
trigger point payable
Year Pound Sterling Pound Sterling
------- -------------- ---------------
1991/92 649,000 1,027,500
1992/93 757,600 1,136,400
1993/94 688,625 1,156,800
1994/95 657,750 986,626
1995/96 808,800 1,213,200 *
1996/97 880,765 1,321,148 *
* Plus Insurance Premium Tax ("IPT").
(ii) Following Completion and after the expiry of 5
years from commencement of each of the relevant
insurance years 1st July, 1991 to 30th June, 1997
(after which period no further adjustments may be
made) Cadbury Schweppes shall use its reasonable
endeavours to procure that CIGNA pays to CCSB
(within a reasonable period following the expiry of
the relevant 5 year period) by way of reimbursement
of premia paid to CIGNA all amounts by which the
actual losses under the insurance contracts for the
15
relevant year as set out below are less than the
premia paid for the relevant year set out below,
provided always that the amount payable by CIGNA
shall not exceed that amount which is equal to the
difference between the amount of the premium paid
under the relevant insurance contract in respect of
the relevant insurance year prior to Completion and
the amount of the minimum premium in respect of the
relevant insurance year set out below:
Year Premia Paid Minimum Maximum
Premia Reimbursement
Payable
------- ----------- ---------- -------------
Pound Pound Pound
Sterling Sterling Sterling
1991/92 551,650 496,485 55,165
1992/93 612,000 550,800 61,200
1993/94 564,400 522,469 41,931
1994/95 545,400 441,453 103,947
1995/96 657,100 558,500 98,600*
1996/97 753,570 640,535 113,035*
* Plus IPT
(iii) The amounts set out in the tables in subclauses
3(i) and (ii) above and 3(v) below in respect of the
year 1996/97 shall be adjusted to take account of
Completion taking place during such year as follows:
(a) the amounts for retro trigger points and for
premia paid to date shall be calculated by
reference to the following formula:
B
A = ---- x C
365
where: A is the adjusted amount for the
retro trigger points or for
premia paid to date, as the case
may be;
B is the number of days elapsed
from and including 1st July,
1996 to and including the date
of Completion; and
C is the figure set out in the
table above for 1996/97 for
retro trigger points or for
premia paid to date, as the case
may be; and
16
(b) the amount for maximum premia payable shall be
calculated by reference to the following
formula:
( E )
D = (--- x F)+ G
(365 )
where: D is the adjusted amount for maximum
premia payable;
E is the number of days elapsed from
and including 1st July, 1996 to and
including the date of Completion;
F is the figure set out in the table
above for 1996/97 for maximum premia
payable; and
( E )
G is an amount equal to (--- x F) x H, where
(365 )
H is (i) 50 per cent. if Completion
takes place at any time during
the period ending on 31st
December, 1996; or
(ii) 25 per cent. if Completion
takes place at any time during
the period commencing on 1st
January, 1997 and ending on 31st
March, 1997; or
(iii) 0 per cent. if Completion
takes place on or after 1st
April, 1997.
(c) The amount for minimum premium and maximum
reimbursement payable shall be calculated by
reference to the following formula:
JxL
---
365
where: J is the amount of minimum premium
or maximum reimbursement, as the case
may be, for the year 1996/97; and
L is the number of days elapsed
from and including 1st July, 1996 to
and including the date of Completion.
17
(d) The amount for claims handling deposit and
administration fee shall be calculated by
reference to the following formula:
JxL
---
365
where: J is the amount of the claims
handling deposit or administration
fee (as the case may be) for the year
1996/97; and
L is the number of days elapsed
from and including 1st July, 1996 to
and including the date of Completion,
provided that the amount of the administration
fee payable by CCSB shall be no less than an
amount equal to 25 per cent. of the
administration fee for the year 1996/97 listed
in subclause (3)(v) below.
(iv) In this subclause (3) reference to "actual losses"
shall include all losses paid and outstanding at the
relevant review date, but shall exclude on any
individual claim all sums paid or outstanding in
excess of the following amounts for the insurance
years specified below:
Years 1st July, 1991 to 30th June, 1993 - Pound
Sterling 75,000 each claim
Years 1st July, 1993 to 30th June, 1997 - Pound
Sterling 100,000 each claim.
(v) The Purchaser agrees to procure that, following
Completion, CCSB shall pay (within a reasonable
period of a demand from Cadbury Schweppes so to do),
all amounts by which the actual claims handling
charge (excluding any administration fee) under
insurance contracts for the relevant insurance year
specified below shall exceed the claims handling
deposit set out below for the relevant insurance
year. The Purchaser further agrees to procure that,
following Completion, CCSB shall receive (within a
reasonable period of a demand from CCSB so to do)
all amounts by which the actual claims handling
charge (excluding any administration fee) under
insurance contracts for the relevant insurance year
specified below shall fall below the claims handling
18
deposit for the relevant insurance year set out
below:
Year Claims Handling Administration Fee
Deposit Paid Pound Sterling
Pound Sterling
--------------- ------------------ ------------------
1991/92 23,500
1992/93 27,008
1993/94 Nil
1994/95 13,750
1995/96 27,140 plus IPT 4,725 plus IPT
1996/97 33,684 plus IPT 4,898 plus IPT
For the avoidance of doubt, no adjustment (except as
set out in subclause (3)(iii)(d)) shall be made in
respect of the administration fee.
7. CONFIRMATIONS
(1) It is the intention of the Purchaser, Coca-Cola
Enterprises and the Sellers that the price per Share or
Deferred Share payable under this agreement to each of
the Sellers shall be no greater than the price per share
payable to that Seller set out in this agreement.
(2) Each of the Sellers confirms to the other that it has not
entered into any arrangements with the Purchaser or
Coca-Cola Enterprises for the purpose of increasing the
consideration payable to it for the Shares or the
Deferred Shares under this agreement.
(3) Each of the Sellers undertakes to the other that it shall
not enter into any arrangements with the Purchaser or
Coca-Cola Enterprises for the purpose of increasing the
consideration payable to it for the Shares or the
Deferred Shares and that no mechanism or structure shall
be used the purpose of which is to increase the price per
Share or Deferred Share payable to that Seller under this
agreement.
8. COVENANTS UP TO COMPLETION
(1) The Sellers (in the case of clauses 8(C) and 9(C)
referred to below) shall and Cadbury Schweppes (in the
case of clause 12(B) referred to below) shall procure
that between the date of this agreement and Completion,
no Company shall undertake, without the prior written
consent of the Purchaser, any of the matters set out in
clauses 8(C), 9(C) and 12(B) of the shareholders
agreement, dated 5th January, 1987, made between Cadbury
Schweppes, The Coca-Cola Export Corporation and Coca-Cola
provided that this subclause 8(1) shall not apply to
matters which (a) have been authorised pursuant to that
shareholders agreement prior to the date of this
agreement; and (b) are set out in the board minutes of a
19
Company or in the Disclosure Letter or in the fax from
Cadbury Schweppes' Solicitors to the Purchaser's
Solicitors dated 24th July, 1996 which is annexed to the
Disclosure Letter; and (c) which have not been
implemented prior to the date of this agreement. For the
avoidance of doubt, the manufacture, marketing and
distribution of products under the Perrier, Appletise,
Duchy, Trebor and Capri-Sun arrangements, the Burger King
and McDonalds arrangements, any export arrangements
authorised by a relevant franchisor and contract packing
disclosed in the Disclosure Letter shall not require the
prior written consent of the Purchaser.
(2) Until Completion, Cadbury Schweppes shall (subject always
to applicable competition law) procure (and Coca-Cola UK
shall do nothing to prevent Cadbury Schweppes so
procuring) that the Purchaser and Coca-Cola UK, their
agents and representatives are on reasonable notice given
reasonable access during normal business hours to the
Properties and to the books and records of the Companies,
in the case of the Purchaser, to the extent reasonably
necessary for the Purchaser to prepare for the business
of the Companies to be carried on after Completion, and,
in the case of Coca-Cola UK, for any purpose connected
with this agreement, provided that any information
obtained as a result of such access shall be used only
for such purpose, and shall not be passed to any officer
or employee of the Purchaser or Coca-Cola Enterprises or
Coca-Cola UK, except for such purpose.
(3) Each Seller shall promptly notify the Purchaser and the
other Seller in writing of any matter or thing which
arises or becomes known to it before Completion which
constitutes (or would after the lapse of time constitute)
a misrepresentation or a breach of any of the Warranties
or the undertakings or other provisions set out in this
agreement.
(4) Cadbury Schweppes will use its reasonable endeavours to
add the Purchaser as a joint insured (to the extent of
the Purchaser's insurable interest) to Cadbury Schweppes'
Combined Property Damage Business Interruption policy (or
any replacement for such policy) for the period from the
date of this agreement to the date of Completion or, if
earlier, termination of this agreement. Cadbury
Schweppes agrees with the Purchaser that it shall
maintain insurance cover in respect of the Companies and
their assets and liabilities for the period from the date
of this agreement to the date of Completion on terms and
with benefits which are substantially similar to the
insurance cover provided under the Cadbury Schweppes'
Combined Property Damage Business Interruption policy at
the date of this agreement.
(5) For the purpose of subclause (1), the consent of the
Purchaser shall be deemed to be given if Xx Xxxxxx
20
Findlay (or such other person as the Purchaser may notify
to the other parties to this agreement) shall give his
consent in writing to the Sellers. Requests for consent
shall be addressed to Xxxxx Xxxxxx, Coca-Cola Enterprises
Inc., 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx, 00000,
XXX, fax no. 000 000 000 0000, or, if by post, XX Xxx
000000, Xxxxxxx, Xxxxxxx, 00000-0000 XXX or to Xxxxx
Xxxxxxx, Coca-Cola Enterprises Inc., x/x XXXX, Xxxxxxx
Xxxxx, Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxx XX0 0XX, fax no.
00000 000000. The Purchaser and CCE shall procure that
any requests for consent shall be processed as promptly
as reasonably practicable after receipt, and the
provisions of clause 20(3) shall not apply to any
requests under this subclause.
(6) Each of the Purchaser and Coca-Cola Enterprises shall,
prior to Completion, co-operate with Cadbury Schweppes in
the provision of information reasonably requested by
Cadbury Schweppes and which is reasonably required to
facilitate the giving of legal opinions in such form and
of such law firms as Cadbury Schweppes may reasonably
require in the context of the matters contemplated by
this agreement.
(7) The Sellers shall procure that any return under paragraph
1 of Schedule 13 to the Taxes Act 1988 required to be
made if there are franked payments in the period in
question by the Company or CCSB between the date of this
agreement and Completion contains notice that any
dividend paid by CCSB to the Company or by the Company to
a Seller in the period covered by the return is paid
outside the election under section 247(1) Taxes Act 1988
and that CCSB pays the advance corporation tax due in
consequence of the notice on or before the due date for
payment of such advance corporation tax.
(8) CCE agrees that it will negotiate in good faith with
Cadbury Schweppes the Ancillary Agreements, using as a
basis for those negotiations the forms of the Ancillary
Agreements initialled by or on behalf of Cadbury
Schweppes and Coca-Cola Enterprises.
9. RESCISSION
(1) If before Completion:
(a) any breach of the Warranties which would or might
reasonably be expected to have a material and
adverse effect, in the context of the Companies
taken as a whole, comes to the notice of the
Purchaser; or
(b) anything occurs which, had it occurred on or before
the date of this agreement, would have constituted a
breach of the Warranties which would or might
reasonably be expected to have a material and
21
adverse effect, in the context of the Companies
taken as a whole,
and, where that breach is capable of remedy, it is not
remedied to the Purchaser's reasonable satisfaction
within five Business Days of each of the Sellers
receiving notice from the Purchaser of such breach or
occurrence then, but without prejudice to any other
rights or remedies available to the Purchaser, the
Purchaser (for itself and on behalf of Coca-Cola
Enterprises) may without any liability to the Sellers
elect not to complete the purchase of the Shares and the
Deferred Shares by giving notice in writing to Cadbury
Schweppes and
Coca-Cola UK.
(2) If following Completion any breach of any Warranties (or
any other term of this agreement) comes to the notice of
the Purchaser, neither the Purchaser nor Coca-Cola
Enterprises shall be entitled to treat this agreement as
terminated but this restriction shall not affect the
ability of the Purchaser or Coca-Cola Enterprises to
claim damages or exercise any other right, power or
remedy under this agreement.
10. TAX DEED
The Sellers shall on Completion enter into a Tax Deed in
favour of the Purchaser and CCSB in the Agreed Form.
11. DIVIDENDS
(1) Except as provided in this clause, the Sellers agree that
no dividend or other distribution will be declared, paid
or made in respect of any shares in any Company in the
period from the date of this agreement to and including
the date of Completion.
(2) If ABGB or CCSB proposes to pay a dividend in the period
from the date of this agreement to and including the date
of Completion, the Sellers will procure that:
(a) the dividend will only be declared and paid in
accordance with the Companies Xxx 0000 and, if paid
by ABGB, will only be paid to Cadbury Schweppes;
(b) the dividend will only be declared on or before 16th
September, 1996 or, if the conditions set out in
clause 4 shall not be satisfied or waived by 5.00
p.m. (London time) on 13th September, 1996, will
only be declared on the date which is four Business
Days after the day on which the last condition shall
be satisfied or waived (or on such other date as
Cadbury Schweppes, Coca-Cola UK and the Purchaser
22
may agree), but shall only be payable on the next
Business Day after the date on which Completion
occurs;
(c) the Sellers give notice, at least 1 Business Day
prior to the date on which the dividend is to be
declared, to the Purchaser of the amount of the
dividend together with a copy of the relevant
accounts prepared to support the dividend payment;
(d) CCSB shall not declare a dividend unless ABGB also
declares a dividend of an equal amount;
(e) ABGB shall only declare a dividend if CCSB has also
declared a dividend of an equal amount;
(f) the aggregate amount of the dividend payable to
Cadbury Schweppes by ABGB will not exceed Pound
Sterling 497,456,750; and
(g) the dividend shall be payable outside the group
income election made by the relevant Company and the
recipient of the relevant dividend pursuant to
section 247 Income and Corporation Taxes Xxx 0000.
(3) Cadbury Schweppes will procure that the aggregate amount of any
dividend to be declared or paid by CCSB in accordance with this
clause is financed in full by interest free funding made to CCSB
by a member of the Cadbury Schweppes' Group which is not repayable
prior to Completion.
(4) At Completion the Sellers will deliver to the Purchaser a
certificate that no dividend or other distribution has
been declared, paid or made in respect of any Shares or
Deferred Shares in the period from the date of this
agreement up to and including the date of Completion or,
if one has been so declared, specifying the details and
that it was made in accordance with this clause.
(5) The Purchaser shall procure that any dividend declared in
accordance with clause 11(2) shall be paid on the next
Business Day after the date on which Completion occurs.
(6) An amount equal to the aggregate amount of any dividend
payable to Cadbury Schweppes which is declared by ABGB in
the period from the date of this agreement to and
including the date of Completion shall be deducted from
the aggregate consideration payable to Cadbury Schweppes
under clause 3 for the Shares to be sold by it.
(7) Cadbury Schweppes shall be entitled in its sole discretion to elect
whether and to what extent the deduction from the aggregate
consideration under subclause (6) shall be made from any cash
consideration payable under clause 3(3) and/or the amount of the
23
Notes to be issued pursuant to clause 3(2), provided that, in
relation to the Notes, any deduction is made first from
the Note of nominal value Pound Sterling 177,456,750 and
that notice is given of the amount of the deduction
specifying whether from cash and/or Notes in the election
made by Cadbury Schweppes under clause 3(3).
(8) The Sellers undertake to the Purchaser that they shall
procure that on 16th September, 1996 or if the conditions
set out in clause 4 shall not be satisfied or waived by 5
p.m. (London time) on 13th September, on the date which
is four Business Days after the last of the conditions
set out in clause 4 shall have been satisfied or waived
or at such other time or on such other date as each of
the Sellers and the Purchaser may agree, the name of CCSB
shall be changed to "Coca-Cola & Schweppes Bottling
Enterprises Limited" or such other name containing the
words "Coca-Cola", "Schweppes" and "Enterprises" as the
parties may agree, such agreement not to be unreasonably
withheld or delayed.
12. COMPLETION
(1) If the sale and purchase becomes or is declared by the
parties unconditional, Completion shall take place at the
offices of the Purchaser's Solicitors at 11 a.m. on 17th
September, 1996 or, if the conditions set out in clause 4
shall not be satisfied or waived by 5 p.m. (London time)
on 13th September, 1996, on the date which is five
Business Days after the day on which the last condition
shall have been satisfied or waived, or at such other
time or on such other date as Cadbury Schweppes,
Coca-Cola UK and the Purchaser may agree.
(2) At Completion, Cadbury Schweppes shall procure:
(a) the delivery to the Purchaser of:
(i) share warrants issued to bearer in respect of the
Ordinary Shares set out opposite its name in Schedule 1
and duly executed transfers in favour of the Purchaser
or its nominee(s) of all the Preference Shares;
(ii) the share certificate(s) representing the Preference
Shares (or an express indemnity in a form
satisfactory to the Purchaser in the case of any
found to be missing);
(iii) the Tax Deed duly executed by Cadbury Schweppes;
(iv) the Licensing Agreements duly executed by the
parties to them, other than CCSB;
24
(v) the Transfers duly executed by Cadbury
Schweppes for the Transfer Properties at
Sidcup and East Kilbride together with the
Agreed Form of the renunciation of leases
duly executed by Cadbury Schweppes and
Schweppes Limited in respect of the
Transfer Property at East Kilbride;
(vi) the Agreement for Lease duly executed by
Cadbury Schweppes;
(vii) the Water Supply Agreement duly executed
by Cadbury Schweppes;
(viii) subject to clause 18(1)(c), the Insurance
Services Agreement duly executed by
Cadbury Schweppes;
(ix) the Maintenance Agreement duly executed by
Cadbury Schweppes;
(x) the Property Management Agreement duly
executed by Cadbury Schweppes;
(xi) the letter regarding the Sodastream
premises in the Agreed Form duly executed
by Sodastream Limited;
(xii) the Bournville Licence duly executed by
Cadbury Schweppes;
(xiii) the Colwall Licence Letter duly executed
by Cadbury Schweppes;
(xiv) the resignations of the persons marked <>
in Schedules 2 and 3 as directors and the
secretary of each Company, in each case
acknowledging under seal that he or she
has no claim against the Companies whether
for loss of office or otherwise;
(xv) a certified copy of each of the
Termination Agreements to be executed by a
member of the Cadbury Schweppes' Group,
duly executed by the relevant members of
the Cadbury Schweppes' Group; and
(xvi) a side letter in the Agreed Form relating
to the Notes, duly executed by Cadbury
Schweppes;
(b) the delivery to Coca-Cola Enterprises of duly
executed transfers in favour of Coca-Cola
Enterprises or its nominee(s) of such of the
Deferred Shares set opposite its name in Schedule 1
together with the share certificate(s) representing
25
them (or an express indemnity in a form satisfactory
to Coca-Cola Enterprises in the case of any found to
be missing);
(c) the delivery of a counterpart of each of the
Termination Agreements to be executed by a member of
the Cadbury Schweppes' Group, duly executed by the
relevant members of the Cadbury Schweppes' Group,
to Coca-Cola UK; and
(d) the delivery to Coca-Cola UK of the Durham Side
Letter, duly executed by Cadbury Schweppes.
(3) At Completion, Coca-Cola UK shall procure:
(a) the delivery to the Purchaser of:
(i) share warrants issued to bearer in respect of
the Ordinary Shares set out opposite its name
in Schedule 1;
(ii) the Tax Deed duly executed by Coca-Cola UK;
(iii) the resignations of the persons marked *
in Schedule 2 as directors of the Company, in
each case acknowledging under seal that he has
no claim against the Companies whether for loss
of office or otherwise;
(iv) the Bottler's Agreement, duly executed by the
relevant members of the Coca-Cola Group; and
(v) a certified copy of each of the Termination
Agreements, which have been executed by the
relevant members of the Coca-Cola Group;
(b) the delivery to Coca-Cola Enterprises of duly
executed transfers in favour of Coca-Cola
Enterprises or its nominee(s) of such of the
Deferred Shares set opposite its name in Schedule 1
together with the share certificate(s) representing
them (or an express indemnity in a form satisfactory
to Coca-Cola Enterprises in the case of any found to
be missing); and
(c) the delivery to Cadbury Schweppes of:
(i) a counterpart of the Termination Agreements to
be executed by a member of the Coca-Cola Group,
duly executed by the relevant members of the
Coca-Cola Group; and
(ii) a counterpart of the Tax Deed duly executed by
Coca-Cola UK.
26
(4) At Completion:
(a) the following items shall be delivered to the
Purchaser:
(i) the certificate of incorporation, common seal,
minute books, statutory registers and share
certificate books of each Company;
(ii) the Title Deeds Undertaking duly executed by
Cadbury Schweppes;
(iii) duly executed transfers of each share in a
Subsidiary as is not registered in the name of
the Company in favour of the Purchaser or as it
may direct together with the relevant share
certificate(s); and
(iv) the resignation of the auditors of each Company
in each case confirming, in accordance with
section 394 of the Companies Xxx 0000, that
there are no circumstances connected with their
resignation which should be brought to the
attention of the members or creditors of that
Company and that no fees are due to them;
(b) written resolutions of the directors of each Company
will be passed resolving that:
(i) such persons as the Purchaser nominates are
appointed as additional directors and the
secretary of that Company;
(ii) its registered office is changed to such
address as the Purchaser shall nominate;
(iii) the transfers of shares referred to in
paragraphs 2(a) and (b) and 3(b) above (subject
only to their being duly stamped) are approved
for registration;
(iv) such firm as the Purchaser shall nominate is
appointed as auditors; and
(v) (in the case of CCSB only) those
agreements to which CCSB is a party as set out
in clause 12(4)(c) and clause 12(5)(d) be
approved and executed;
(c) there shall be delivered to Cadbury Schweppes a
counterpart of each of:
(i) the Licensing Agreements;
(ii) the Agreement for Lease;
27
(iii) the Water Supply Agreement;
(iv) the Maintenance Agreement;
(v) the Property Management Agreement;
(vi) the Bournville Licence;
(vii) the Colwall Licence Letter;
(viii) the relevant parts of the Termination
Agreements;
(ix) the Transfers;
(x) subject to clause 18(1)(c), the Insurance
Services Agreement;
(xi) the letter regarding the Sodastream premises
in the Agreed Form; and
(xii) the Tax Deed,
in each case duly executed by CCSB;
(d) written resolutions of the members of ABGB and CCSB
will be passed which adopt new articles of
association in such form as the Purchaser requires;
and
(e) the certificate referred to in clause 11(4) shall be
delivered to the Purchaser.
(5) Upon completion of all the matters referred to in
subclauses (2), (3) and (4) above:
(a) the Purchaser shall:
(i) pay the sum of Pound Sterling 615,958,440 to
Coca-Cola UK in respect of the Shares to be
sold by it;
(ii) execute the Note Instrument and issue the Notes
(less any amounts to be deducted under clause
11) to Cadbury Schweppes and, if an election
has been made in accordance with clause 3(3),
pay the cash amount in respect of which the
election has been made, to Cadbury Schweppes;
(iii) deliver a certified copy of the Note
Instrument to Cadbury Schweppes; and
(iv) deliver to each of Cadbury Schweppes and
Coca-Cola UK a counterpart of the Tax Deed,
duly executed by the Purchaser.
28
(b) Coca-Cola Enterprises shall:
(i) pay the sum of 51p to Cadbury Schweppes in
respect of the Deferred Shares to be sold by
it;
(ii) pay the sum of 49p to Coca-Cola UK in respect
of the Deferred Shares to be sold by it;
(iii) subject to clause 3(3) execute the Note
Instrument and deliver a certified copy of it
to Cadbury Schweppes; and
(iv) procure the delivery of the UBS Letter of
Credit to Cadbury Schweppes;
(c) the Purchaser and Coca-Cola Enterprises shall:
(i) procure the delivery of the Legal Opinion to
each of the Sellers;
(ii) deliver the acknowledgement of the letter
referred to in clause 12(2)(a)(xvi) duly
executed by the Purchaser and Coca-Cola
Enterprises to Cadbury Schweppes; and
(d) a counterpart of the Bottler's Agreement, duly
executed by CCSB, shall be delivered to Coca-Cola UK.
(6) If for any reason the respective obligations of the
Sellers in subclauses (2) to (4) above or of the
Purchaser and/or Coca-Cola Enterprises in subclause (5)
above are not fully complied with, the Purchaser (in the
case of non-compliance with the Sellers' obligations set
out in subclauses (2) to (4)) or either of the Sellers
(in the case of non-compliance with the Purchaser's
and/or Coca-Cola Enterprises' obligations set out in
subclause (5)) may elect by notice in writing delivered
to each of the other parties to this agreement (in
addition and without prejudice to all other rights or
remedies available to it) to rescind this agreement or to
fix a new date for Completion, provided that any such new
date shall be on or before 1st December, 1996. If one of
the Sellers so elects to rescind this agreement, the
other Seller shall be deemed to have done the same (but
without prejudice to all other rights or remedies
available to it). If a party wishes to elect to fix a
new date for Completion, each of the parties acting
reasonably shall agree on a date with the other parties.
(7) Neither the Purchaser nor Coca-Cola Enterprises shall be
obliged to complete the purchase of any of the Shares or
the Deferred Shares unless the purchase of all the Shares
and all the Deferred Shares is completed simultaneously
in accordance with this agreement.
29
(8) Neither Cadbury Schweppes nor Coca-Cola UK shall be
obliged to complete the sale of any of the Shares or the
Deferred Shares unless the sale of all the Shares and
Deferred Shares is completed simultaneously in accordance
with this agreement.
13. LOAN ACCOUNTS
(1) Cadbury Schweppes shall procure that upon Completion all
indebtedness (other than debts resulting from the supply
of goods or services in the ordinary course of trading)
due from any member of the Cadbury Schweppes' Group to
any Company is satisfied in full and Coca-Cola UK shall
procure that upon Completion all indebtedness (other than
debts resulting from the supply of goods or services in
the ordinary course of trading) due from any member of
the Coca-Cola Group to any Company is satisfied in full.
(2) The Purchaser shall procure that upon Completion all
indebtedness (other than debts resulting from the supply
of goods or services in the ordinary course of trading)
due from any Company to any member of the Cadbury
Schweppes' Group or to any member of the Coca-Cola Group
(all material particulars of which are contained in or
attached to the Disclosure Letter) and the funding
referred to in clause 11(3) is satisfied in full.
(3) Cadbury Schweppes undertakes to the Purchaser that
immediately following Completion neither it nor any
member of the Cadbury Schweppes' Group will have any
claim whatsoever, and none of the Companies will have any
liability to any member of the Cadbury Schweppes' Group,
in respect of any debt or any obligation of any material
nature in respect of an act, event or omission arising
before Completion (other than debts resulting from the
supply of goods and services in the ordinary course of
trading and liabilities arising in the ordinary course of
trading). If after Completion any such claim or liability
will arise, Cadbury Schweppes waives, and will procure
that any such member of the Cadbury Schweppes' Group will
waive, all rights against the relevant Company in
connection with that claim or liability. Coca-Cola UK
undertakes to the Purchaser that immediately following
Completion neither it nor any member of the Coca-Cola
Group will have any claim whatsoever, and none of the
Companies will have any liability to any member of the
Coca-Cola Group, in respect of any debt or any obligation
of any material nature in respect of an act, event or
omission arising before Completion (other than debts
resulting from the supply of goods and services in the
ordinary course of trading and liabilities arising in the
ordinary course of trading). If after Completion any
such claim or liability will arise, Coca-Cola waives, and
will procure that any such member of the Coca-Cola Group
will waive, all rights against the relevant Company in
connection with that claim or liability.
30
(4) The provisions of this clause shall not apply to any
amounts due under the Tax Sharing Agreement.
14. GUARANTEES
(1) Cadbury Schweppes shall use its reasonable endeavours to
procure that on Completion each Company is released from
all guarantees, indemnities, set-off or other security
arrangements or arrangements having similar effect given
by it, in respect of the obligations of the Cadbury
Schweppes' Group. Cadbury Schweppes shall after
Completion indemnify the Purchaser and each Company
against all liabilities under those guarantees and
indemnities, set-off or other security arrangements or
arrangements having similar effect. Coca-Cola UK shall
use its reasonable endeavours to procure that on
Completion each Company is released from all guarantees,
indemnities, set-off or other security arrangements or
arrangements having similar effect given by it, in
respect of the obligations of the Coca-Cola Group.
Coca-Cola UK shall after Completion indemnify the
Purchaser, Coca-Cola Enterprises and each Company against
all liabilities under those guarantees and indemnities,
set-off or other security arrangements or arrangements
having similar effect.
(2) The Purchaser and Coca-Cola Enterprises shall use
reasonable endeavours (which shall include offering
guarantees or set-off or other arrangements on similar
terms to replace those provided by a member of the
Cadbury Schweppes' Group or the Coca-Cola Group, if any)
to procure that as from Completion each member of the
Cadbury Schweppes' Group and the Coca-Cola Group is
released from all guarantees, indemnities, set-off or
other security arrangements or arrangements having
similar effect given by it in respect of obligations of
any Company and of which copies are annexed to the
Disclosure Letter and, pending that release, the
Purchaser and Coca-Cola Enterprises shall, after
Completion, indemnify the relevant member of the Cadbury
Schweppes' Group or the Coca-Cola Group against all
liabilities under those guarantees, indemnities, set-off
or other security arrangements or arrangements having
similar effect and, subject to the Purchaser and
Coca-Cola Enterprises continuing to use reasonable
endeavours to procure a release, the relevant members of
the Cadbury Schweppes' Group or the Coca-Cola Group shall
provide all reasonable assistance in relation to any
property dealings where such a guarantee has been given
including entering into any licences, deeds of variation
or rent review memoranda reasonably requested by the
Purchaser provided that this does not extend the
liability of any of the relevant members of the Cadbury
Schweppes' Group or the Coca-Cola Group.
31
15. PENSIONS, PROPERTIES AND TAXATION
(1) Cadbury Schweppes and the Purchaser shall observe and
perform the provisions of Schedule 6 expressed to be
observed and performed by each of them respectively.
(2) Cadbury Schweppes and the Purchaser shall observe and
perform the provisions of Part 3 of Schedule 4 expressed
to be observed and performed by each of them
respectively.
(3) (a) If the Insurance Services Agreement is not
entered into at Completion, then, from Completion
Cadbury Schweppes shall provide the Purchaser with
all reasonable assistance concerning claims handling
in respect of the fire which took place at CCSB's
premises at Sidcup on 1st July, 1996 as follows:
(i) liaising with CCSB personnel on gathering all
necessary claims data and documentation;
(ii) keeping the Purchaser reasonably informed of
the progress of any claim and taking account of
representations made by the Purchaser in
dealing with it;
(iii) negotiating with the relevant loss
adjusters in relation to any claims;
(iv) responding to any reasonable requests for
further information in relation to any claim as
contained in any written requests from the
Purchaser; and
(v) making arrangements for interim and final
settlements direct from the insurers to CCSB.
All reasonable costs and expenses incurred by
Cadbury Schweppes in providing such assistance shall
be paid by the Purchaser promptly after demand for
them by Cadbury Schweppes.
(b) Cadbury Schweppes shall, during the period from
the date of this agreement to Completion, provide
the Purchaser with such information relating to the
conduct and progress of the claims referred to in
paragraph (a) above as the Purchaser may reasonably
request.
(4) Cadbury Schweppes, Coca-Cola UK and the Purchaser shall
observe and perform the provisions of Schedule 11
expressed to be observed and performed by each of them
respectively.
32
16. EMPLOYEES
(1) Cadbury Schweppes shall procure (and Coca-Cola UK shall
do nothing to prevent Cadbury Schweppes so procuring)
that CCSB makes within 2 Business Days after the date of
this agreement an offer in writing to each CS Group
Employee to employ such person under a new contract of
employment conditional on satisfaction or waiver of the
conditions precedent set out in clause 4(1) and to take
effect after satisfaction or waiver of those conditions
precedent but prior to Completion which offers shall be
expressed to be capable of acceptance within 21 days of
the date of this agreement only. The offers to be made
will be such that none of the terms and conditions of the
new contract will differ from the corresponding provision
of that person's contract of employment immediately
before Completion (other than the name of the employing
company and other changes which are consequential only as
a result of CCSB ceasing to be a member of the Cadbury
Schweppes' Group but no other reason and, in the case of
X. Xxxxxxx, to standardise the terms of his contract of
employment with the other CS Group Employees' contracts
of employment) and, for the avoidance of doubt, each such
person shall be deemed to have such period of continuous
employment as would have applied had such person's
existing contract of employment not been terminated and a
new contract not been entered into. Immediately prior to
the transfer of the Shares and Deferred Shares under this
agreement (or, if earlier, upon the relevant contract of
employment taking effect following acceptance of an offer
by CCSB pursuant to this subclause), Cadbury Schweppes
shall terminate the employment of the CS Group Employees
and, after Completion, the Purchaser and Coca-Cola
Enterprises shall indemnify Cadbury Schweppes and each
member of the Cadbury Schweppes' Group against all
actions, liabilities, claims and proceedings from time to
time and all loss or damage and all payments, costs or
expenses made or incurred by such persons in connection
with the termination of the employment of the CS Group
Employees under this clause.
(2) Cadbury Schweppes or a member of the Cadbury Schweppes'
Group may within 2 Business Days after the date of this
agreement make an offer in writing to such of the CCSB
Employees as it may choose to employ such persons under
a new contract of employment conditional on, and to take
effect on, Completion which offers shall be expressed to
be capable of acceptance within 21 days of the date of
this agreement only. The offers to be made may be on
such terms as Cadbury Schweppes shall in its absolute
discretion decide. None of the Purchaser nor Coca-Cola
Enterprises nor any subsidiary of Coca-Cola Enterprises
shall solicit any CCSB Employee not to accept such an
offer. For the avoidance of doubt, any costs of
employment or costs arising out of the termination of the
employment in respect of any CCSB Employees who do not
33
accept the offer contemplated by this subclause (2) shall
be borne by the relevant Company. The Purchaser agrees
that the cars used by the CCSB Employees under their
respective existing contracts of employment which are set
out in Part 1 of Schedule 7 shall be transferred by CCSB
to the new employer in the event that the relevant CCSB
Employee shall accept such offer of employment.
(3) Cadbury Schweppes and the Purchaser (for itself and on
behalf of the Companies) acknowledge that with effect
from Completion X.X. Xxxxxxxx, B.E. Xxxxx and X. Xxxxxx
(the managing director, finance director and secretary
respectively of CCSB) shall resign as directors and the
secretary of CCSB and any other Company. Cadbury
Schweppes shall indemnify the Companies and keep them
harmless from all actions, liabilities, claims and
proceedings from time to time and all loss or damage and
all payments, costs or expenses made or incurred by the
Companies in connection with any claim made by any or all
of X. X. Xxxxxxxx, B.E. Xxxxx and X. Xxxxxx in connection
with the loss of their respective offices. The Purchaser
agrees that the cars used by the persons named in this
clause which are set out in Part 2 of Schedule 7,
together with the faxes and personal computers listed in
Part 2 of Schedule 7, shall be transferred by CCSB to a
member of the Cadbury Schweppes' Group at Completion.
(4) Cadbury Schweppes shall, within 30 days after the date of
this agreement, notify the Purchaser and Coca-Cola UK of
the identity and number of the CCSB Employees who shall
have accepted the offers referred to in clause 16(2).
17. PROTECTIVE COVENANT
(1) Each Seller covenants with the Purchaser (for itself and
as trustee for each Company) that it shall not for a
period of six months from Completion induce or attempt to
induce any employee who is at the date hereof an employee
of a Company to leave the employment of that Company,
other than as contemplated under clause 16 or pursuant to
a public advertisement to which any such person responds.
(2) If the restriction set out in subclause (1) above is void
but would be valid if some part of the restriction were
deleted the restriction shall apply with such
modification as may be necessary to make it valid.
(3) The Sellers acknowledge that the above provisions of this
clause are no more extensive than is reasonable to
protect the Purchaser and Coca-Cola Enterprises as the
purchaser of the Shares and the Deferred Shares
respectively.
(4) If by virtue of any provision of this agreement or of any
other agreement or arrangement of which this agreement
forms part, particulars of such agreement or arrangement
34
are required to be furnished to the Director General of
Fair Trading under the Restrictive Trade Practices Xxx
0000, none of the parties to such agreement or
arrangement who carry on business within the United
Kingdom shall give effect to, or enforce or purport to
enforce, the agreement or arrangement in respect of any
such provision until the day after particulars of the
agreement or arrangement have been furnished to the
Director General of Fair Trading under section 24 of that
Act.
(5) Coca-Cola Enterprises shall procure that, for so long as
any one or more of the Licensing Agreements remains in
effect and for so long as Cadbury Schweppes shall in its
absolute discretion permit, CCSB shall continue to use
the word "Schweppes" as a part of its legal and trading
name, subject to such controls on the use of such word as
Cadbury Schweppes may reasonably require.
(6) If for any reason the business of CCSB, including the
business relating to any Licensing Agreements, is
transferred, Coca-Cola Enterprises shall procure that the
legal and trading name of the transferee or transferees
shall, for so long as Cadbury Schweppes shall, in its
absolute discretion permit and for so long as any one or
more of the Licensing Agreements remains in effect,
include the word "Schweppes", subject to such controls on
the use of such word as Cadbury Schweppes may reasonably
require.
18. POST COMPLETION ARRANGEMENTS
(1) (a) It is acknowledged by the Purchaser that
Cadbury Schweppes shall, following Completion,
terminate the insurance policies held by the Cadbury
Schweppes' Group for or in respect of the Companies
with effect from Completion.
(b) Cadbury Schweppes shall, within 60 days following
the date of Completion adjust the Cadbury Schweppes'
Group insurance charges to CCSB for the policy year
1996-1997 to equal the insurers earned premium based
on the termination of insurance cover under the
insurance policies referred to in paragraph (a) and
shall procure the repayment to CCSB of any amounts
paid by it which exceed that adjusted amount.
(c) Cadbury Schweppes agrees that CCSB shall not be
required to enter into the Insurance Services
Agreement if the Purchaser so notifies Cadbury
Schweppes not less than 14 days before Completion.
If the Purchaser does so notify, the Purchaser
agrees to pay to Cadbury Schweppes Pound Sterling
6,000 at Completion.
35
(2) The Purchaser agrees that it shall procure that,
following Completion, CCSB shall assume liabilities of
Schweppes Limited which arose as a result of matters
occurring prior to 5th January, 1987 or which may in the
future arise as a result of such matters and, in each
case, which fall within any of the following categories:
(a) product liability in respect of products
manufactured or distributed by Schweppes Limited;
(b) liability arising from injuries or accidents
suffered by employees of Schweppes Limited in the
performance of their duties (including deafness); or
(c) liabilities of Schweppes Limited under the covenants
on the part of the lessee contained in leases of the
following properties and any supplemental documents
or licences to those leases whether as original
tenant or subsequent covenantor which have been
assigned or surrendered:
(i) Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxx;
(ii) 00 Xxxxxxxx Xxxx, Xxxx Xxxxx, Xxxxxx; and
(iii) Xxxx X0 Xxxxxxx Xxxxxxxxxx Xxxxxx,
Xxxxxxxxx, Maidstone.
19. ANNOUNCEMENTS
No party shall make or permit any person connected with
him to make any announcement concerning this sale and
purchase or any matter related to the purchase and sale
under this agreement before, on or after Completion
except as required by law or any competent regulatory
body (including any stock exchange and HM Land Registry)
or with the written approval of Coca-Cola UK, Cadbury
Schweppes and Coca-Cola Enterprises, such approval not to
be unreasonably withheld or delayed. Each of the Sellers
acknowledges and agrees that Coca-Cola Enterprises will
file with the US Securities and Exchange Commission a
copy of this agreement (but not the documents in the
Agreed Form) after Completion.
20. NOTICES
(1) Any notice or other document to be served under this
agreement shall be delivered by hand or international
courier service or by first class recorded delivery post
or airmail or facsimile process to the party to be served
at his address appearing in subclause (2) or at such
other address as he may have notified to the other
parties in accordance with this clause.
(2) Any notice or document to be served under this agreement
shall be addressed:
36
(a) in the case of Cadbury Schweppes, to the Company
Secretary, 00 Xxxxxxxx Xxxxxx, Xxxxxx X0X 0XX, fax
number 0000 000-0000;
(b) in the case of Coca-Cola UK, to the Company
Secretary, 0 Xxxxx Xxxxxxxx Xx., Xxxxxx X0 0XX, fax
number 0181 237 3719 with a copy to The Coca-Cola
Company, Xxx Xxxx-Xxxx Xxxxx, Xxxxxxx, Xxxxxxx
00000, XXX (or if by post XX Xxxxxx 0000, Xxxxxxx,
Xxxxxxx, 00000, XXX), for the attention of the Chief
Financial Officer and for the attention of General
Counsel, fax number 000 000 000 0000;
(c) in the case of Coca-Cola, to the Chief Financial
Officer, The Coca-Cola Company, Xxx Xxxx-Xxxx Xxxxx,
Xxxxxxx, Xxxxxxx 00000, XXX, (or if by post XX
Xxxxxx 0000, Xxxxxxx, Xxxxxxx, 00000, XXX), fax
number 001 404 676 8683 with a copy to the General
Counsel at the same address; and
(d) in the case of the Purchaser or Coca-Cola
Enterprises, to Xxxxx X. Xxxxx, Coca-Cola
Enterprises Inc., 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxx, 00000, XXX, fax number 000 000 000 0000
(or, if by post, XX Xxx 000000, Xxxxxxx, Xxxxxxx,
00000-0000, XXX), with a copy to E. Xxxxxx Xxxxxx
III, Xxxxxx & Xxxxxx, 0000 Xxxxxxxxx Xxxxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx, 00000-0000, fax number
001 000 000 0000.
(3) In proving service of a notice by fax, it shall be
necessary to provide evidence that the addressee of the
fax has received the fax.
(4) The failure to provide any party stated in subclause (2)
above with a copy of any notice or document to which they
are entitled in accordance with the provisions of this
clause shall not invalidate the service of such document
or notice on the primary addressee.
21. RESOLUTIONS AND WAIVERS
(1) In relation to each Company the Sellers shall procure the
convening of all meetings, the giving of all waivers and
consents and the passing of all resolutions as are
necessary under the Companies Xxx 0000, its articles of
association or any agreement or obligations affecting it
to give effect to the sale of the Shares and the Deferred
Shares under this agreement.
(2) Each Seller waives (and shall procure the waiver by his
nominee(s) of) all rights of pre-emption which he (or
such nominee(s)) may have (whether under the Company's
37
articles of association or otherwise) in respect of the
transfer to the Purchaser and Coca-Cola Enterprises of
the Shares and the Deferred Shares or any of them.
(3) Each of Coca-Cola Enterprises and the Purchaser
undertakes to procure that the Sellers shall cease to be
the registered holders of any of the Shares and Deferred
Shares as soon as reasonably practicable following
Completion. For so long after Completion as it remains
the registered holder of any of the Shares, each Seller
shall hold them and any distributions, property and
rights deriving from them in trust for the Purchaser and
shall deal with the Shares and any distributions,
property and rights deriving from them as the Purchaser
directs and, in particular, each Seller shall exercise
all voting rights as the Purchaser directs or shall
execute an instrument of proxy or other document which
enables the Purchaser or its representative to attend and
vote at any meeting of the Company.
22. GENERAL
(1) Any provision of this agreement and any other documents
referred to in it which is capable of being performed but
which has not been fully performed at or before
Completion will continue in force after Completion and
will not be affected by any notice given under clause 4
or the waiver of any of the conditions specified in that
clause.
(2) Unless otherwise expressly stated all payments to be made
under this agreement shall be made in sterling to the
party to be paid as follows:
(a) to Coca-Cola UK in immediately available funds to
the account of Coca-Cola UK at:
bank: Citibank International Plc
X.X. Xxx 000
Xxxxxx Xxxxxx
Xxxx Xxxx
Xxxxxx XX0 0XX
sort code: 18-50-08
account number: 0000000
SWIFT ID CITI XX 0X
or such other account as Coca-Cola UK may specify;
38
(b) to Cadbury Schweppes by CHAPS payment to the account
of Cadbury Schweppes Finance Limited at:
bank: Lloyds Bank plc, City Office,
00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
sort code: 30-00-02
account number: 00000000
or such other account as Cadbury Schweppes may
specify; and
(c) to the Purchaser in immediately available funds to
the account of the Purchaser at:
bank: Citibank International Plc
X.X. Xxx 000
Xxxxxx Xxxxxx
Xxxx Xxxx
Xxxxxx XX0 0XX
For the attention of Xxxxxxx Xxxxxx
sort code: 18-50-08
account number: 0000000
or such other account as the Purchaser may specify.
(3) The receipt of Cadbury Schweppes' Solicitors for any sum
or document (excluding notices under clause 20) to be
paid or delivered to Cadbury Schweppes will discharge the
Purchaser's obligation to pay or deliver it to Cadbury
Schweppes. The receipt of Coca-Cola's Solicitors for any
sum or document (excluding notices under clause 20) to be
paid or delivered to Coca-Cola UK or Coca-Cola will
discharge the Purchaser's obligation to pay or deliver it
to Coca-Cola UK or Coca-Cola (as the case may be). The
receipt of the Purchaser's Solicitors for any sum or
document (excluding notices under clause 20) to be paid
or delivered to the Purchaser or Coca-Cola Enterprises
will discharge the obligation of Cadbury Schweppes or
Coca-Cola or Coca-Cola UK to pay or deliver to it to
Coca-Cola Enterprises or the Purchaser (as the case may
be).
(4) None of the rights or obligations under this agreement
may be assigned or transferred without the prior written
consent of all the parties, except that:
(a) the Purchaser shall be entitled upon giving written
notice to the Sellers to transfer or assign its
rights under this agreement to any company which is
a wholly owned subsidiary of Coca-Cola Enterprises
without such consent and Coca-Cola Enterprises shall
procure that if the Purchaser or any such transferee
or assignee is to cease to be a wholly owned
39
subsidiary of Coca-Cola Enterprises, it shall, prior
to such cessation, transfer or assign its rights
under this agreement to Coca-Cola Enterprises or to
a company which is a wholly-owned subsidiary of
Coca-Cola Enterprises;
(b) Cadbury Schweppes shall be entitled upon giving
written notice to the Purchaser and the other Seller
to transfer or assign its rights under this
agreement to any company which is a wholly owned
subsidiary of Cadbury Schweppes without such consent
and Cadbury Schweppes shall procure that if any such
transferee or assignee is to cease to be a wholly
owned subsidiary of Cadbury Schweppes, it shall,
prior to such cessation, transfer or assign its
rights under this agreement to Cadbury Schweppes or
to a company which is a wholly-owned subsidiary of
Cadbury Schweppes; notwithstanding any such
assignment or transfer, Cadbury Schweppes shall
remain liable in respect of its obligations under
this agreement; and
(c) Coca-Cola UK shall be entitled upon giving written
notice to the Purchaser and the other Seller to
transfer or assign its rights under this agreement
to any company which is a wholly owned subsidiary of
Coca-Cola without such consent and Coca-Cola shall
procure that if any such transferee or assignee is
to cease to be a wholly owned subsidiary of
Coca-Cola, it shall, prior to such cessation,
transfer or assign its rights under this agreement
to Coca-Cola or to a company which is a wholly-owned
subsidiary of Coca-Cola.
(5) The obligations of the Sellers under this agreement and
the Tax Deed shall be several and not joint obligations.
In the event of any conflict or inconsistency between
this subclause and any other provision of this agreement
or the Tax Deed, this subclause shall prevail.
(6) The Purchaser may not release or compromise in whole or
in part the liability of:
(a) Coca-Cola UK or Coca-Cola under this agreement or
grant any time or other indulgence without
releasing or compromising the liability of Cadbury
Schweppes in respect of the same matter to the same
extent or granting time or other indulgence to
Cadbury Schweppes to the same extent; and
(b) Cadbury Schweppes under this agreement or grant any
time or other indulgence without releasing or
compromising the liability of Coca-Cola or Coca-Cola
40
UK in respect of the same matter to the same extent
or granting time or other indulgence to Coca-Cola or
Coca-Cola UK to the same extent.
(7) The Purchaser and Coca-Cola Enterprises undertake to make
all payments under the Notes without any set-off,
restriction, counter-claim or condition whatever.
(8) Time is of the essence in relation to this agreement.
(9) Each party shall pay the costs and expenses incurred by
it in connection with the entering into and completion of
this agreement.
(10) This agreement may be executed in any number of
counterparts, all of which taken together shall
constitute one and the same agreement, and any party may
enter into this agreement by executing a counterpart.
23. WHOLE AGREEMENT
(1) This agreement and the documents listed in Schedule 10
contain the whole agreement between the parties relating
to the transactions contemplated by this agreement and
supersede all previous agreements between the parties
relating to these transactions.
(2) Each of the parties acknowledges that in agreeing to
enter into this agreement it has not relied on any
representation, warranty, undertaking, collateral
contract or other assurance (except those set out in this
agreement or in any of the documents listed in Schedule
10) made by or on behalf of any other party before the
signature of this agreement. Each of the parties waives
all rights and remedies which, but for this subclause,
might otherwise be available to it in respect of any such
representation, warranty, collateral contract or other
assurance, provided that nothing in this subclause shall
limit or exclude any liability for fraud.
24. COCA-COLA GUARANTEE
(1) Coca-Cola as primary obligor unconditionally and
irrevocably:
(a) guarantees by way of continuing guarantee to the
Purchaser the payment when due of all amounts
payable by Coca-Cola UK to any Guaranteed Company
under or pursuant to this agreement or the Tax Deed
or both;
(b) undertakes to ensure that Coca-Cola UK will perform
when due all its obligations under or pursuant to
this agreement or the Tax Deed or both; and
41
(c) agrees that if and each time that Coca-Cola UK fails
to make any payment to a Guaranteed Company when it
is due under or pursuant to this agreement or the
Tax Deed or both, Coca-Cola shall on demand (without
requiring any Guaranteed Company first to take steps
against Coca-Cola UK or any other person) pay that
amount to the relevant Guaranteed Company (and the
certificate of that Guaranteed Company shall in the
absence of manifest error be conclusive evidence of
Coca-Cola UK's failure to make the payment).
(2) Each payment to be made by Coca-Cola under this clause
shall be made in the currency in which the relevant
amount is payable by Coca-Cola UK, without any set-off.
(3) Coca-Cola's obligations under this clause are for the
benefit of the Purchaser itself and as trustee for each
other Guaranteed Company and each other Guaranteed
Company shall be entitled to enforce this clause directly
against Coca-Cola as if it were named as a party to this
agreement.
(4) Coca-Cola's obligations under this clause shall not be
affected by any fact, matter or thing which but for this
provision might operate to affect or prejudice those
obligations, including without limitation:
(a) any time indulgence, waiver or release granted to,
or composition with, Coca-Cola UK or any other
person;
(b) the taking, variation, renewal or release of, or
neglect to perfect or enforce this agreement, the
Tax Deed or any right, guarantee, remedy or security
from or against Coca-Cola UK or any other person; or
(c) any unenforceability or invalidity of any obligation
of Coca-Cola UK, so that this clause shall be
construed as if there were no such unenforceability
or invalidity.
(5) The relevant Guaranteed Company may appropriate any sum
paid by Coca-Cola UK or Coca-Cola or any other person or
recovered or received on account of the obligations the
subject of this clause as that Guaranteed Company sees
fit, whether or not towards those obligations.
(6) Until all amounts which may be or become payable under
this agreement or the Tax Deed have been irrevocably paid
in full, Coca-Cola shall not as a result of this clause
or any payment or performance under this clause be
subrogated to any right or security of any Guaranteed
Company or claim or prove in competition with any
42
Guaranteed Company against Coca-Cola UK or any other
person or claim any right of contribution, set-off or
indemnity.
(7) Coca-Cola will not hold any security from Coca-Cola UK in
respect of this clause and any such security which is
held in breach of this provision will be held by
Coca-Cola in trust for each Guaranteed Company.
(8) In this clause "Guaranteed Companies" means the Purchaser
and the Companies and "Guaranteed Company" means any of
them.
25. PURCHASER'S GUARANTEE
(1) Coca-Cola Enterprises as primary obligor unconditionally
and irrevocably:
(a) guarantees by way of continuing guarantee to each
Seller the payment when due of all amounts payable
by the Purchaser to that Seller under or pursuant to
this agreement or the Tax Deed or both;
(b) undertakes to ensure that the Purchaser will perform
when due all its obligations under or pursuant to
this agreement or the Tax Deed or both; and
(c) agrees that if and each time that the Purchaser
fails to make any payment when it is due under or
pursuant to this agreement or the Tax Deed or both,
Coca-Cola Enterprises shall on demand (without
requiring either Seller first to take steps against
the Purchaser or any other person) pay that amount
to the relevant Seller (and the certificate of that
Seller shall in the absence of manifest error be
conclusive evidence of the Purchaser's failure to
make the payment).
(2) Each payment to be made by Coca-Cola Enterprises under
this clause shall be made in the currency in which the
relevant amount is payable by the Purchaser, without any
set-off.
(3) Coca-Cola Enterprises' obligations under this clause
shall not be affected by any fact, matter or thing which
but for this provision might operate to affect or
prejudice those obligations, including without
limitation:
(a) any time, indulgence, waiver or release granted to,
or composition with, the Purchaser or any other
person;
43
(b) the taking, variation, renewal or release of, or
neglect to perfect or enforce this agreement, the
Tax Deed or any right, guarantee, remedy or security
from or against the Purchaser or any other person;
or
(c) any unenforceability or invalidity of any obligation
of the Purchaser, so that this clause shall be
construed as if there were no such unenforceability
or invalidity.
(4) The relevant Seller may appropriate any sum paid by the
Purchaser or Coca-Cola Enterprises or any other person or
recovered or received on account of the obligations the
subject of this clause as it sees fit, whether or not
towards those obligations.
(5) Until all amounts which may be or become payable under
this agreement or the Tax Deed have been irrevocably paid
in full, Coca-Cola Enterprises shall not as a result of
this clause or any payment or performance under this
clause be subrogated to any right or security of either
Seller or claim or prove in competition with either
Seller against the Purchaser or any other person or claim
any right of contribution, set-off or indemnity.
(6) Coca-Cola Enterprises will not hold any security from the
Purchaser in respect of this clause and any such security
which is held in breach of this provision will be held by
Coca-Cola Enterprises in trust for each Seller.
26. GOVERNING LAW
(1) This agreement is governed by and shall be construed in
accordance with English law.
(2) The parties submit to the exclusive jurisdiction of the
English courts for all purposes in relation to this
agreement and Coca-Cola Enterprises irrevocably appoints
the Purchaser to be its agent for service of process and
Coca-Cola irrevocably appoints Coca-Cola UK to be its
agent for service of process.
AS WITNESS the hands of the duly authorised representatives
of the Sellers, the Purchaser, Coca-Cola and Coca-Cola
Enterprises on the date which appears first on page 1.
44
SCHEDULE 1
SELLERS' SHAREHOLDINGS
(A) (B) (C) (D)
Name and address Ordinary Shares Preference Shares Deferred Shares
of Sellers
Cadbury Schweppes plc 104,082 900,000 104,082
00 Xxxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Coca-Cola Holdings 100,000 100,000
(United Kingdom)
Limited
0 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx X0 0XX
45
SCHEDULE 2
PARTICULARS OF THE COMPANY
Registered number: 1994995
Registered office: 00 Xxxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Date and place of 4th March, 1986
incorporation: England
Directors: <> X X X Xxxxx
* L E Disley
* C M Halle
* E N Xxxxxx
<> X X Xxxxxxx
* X X Xxxx
<> X X Xxxxx
<> X X Xxxxxxxx
<> X X Xxxxxxxx
Secretary: <> H Blanks
Accounting reference
date: 31st December
Auditors: Xxxxxx Xxxxxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
46
SCHEDULE 3
PARTICULARS OF THE SUBSIDIARIES
A. Coca-Cola & Schweppes Beverages Limited
Registered number: 27173
Registered office: Xxxxxxx Xxxxx
Xxxx Xxxxxx
Xxxxxxxx
Xxxxxxxxx XX0 0XX
Date and place of 24th July, 1888
incorporation: England
Directors: R Cameron <> B E Xxxxx
X X Xxxxxx X X Xxxxxx
X X Xxxxxx X X Xxxxx
D Jephson <> X X Xxxxxxxx
<> H Blanks
Secretary: <> H Blanks
Accounting reference
date: 31st December
Auditors: Xxxxxx Xxxxxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Authorised and issued
capital: Pound Sterling 202,000
divided into 200,000 ordinary shares of 1p
each and 200,000 deferred ordinary shares
of Pound Sterling 1 each.
Shareholders: The Company: 199,999 deferred shares
199,999 ordinary shares
X X Xxxxxxxx and
the Company: 1 deferred share
1 ordinary share
47
B. Frontier Refreshment Services Limited
Registered number: 2375547
Date and place of 25th April, 1989
incorporation: England
Registered office: Xxxxxxx Xxxxx
Xxxx Xxxxxx
Xxxxxxxx
XX0 0XX
Directors: <> B.E. Xxxxx
<> X.X. Xxxxxxxx
Secretary: <> X. Xxxxxx
Accounting reference
date: 31st December
Auditors: None appointed
Authorised capital: 100,000 ordinary shares of Pound Sterling 1 each
Issued capital: 2 ordinary shares of Pound Sterling 1 each
Shareholders: CCSB: 1 ordinary share
X.X. Xxxxxxxx: 1 ordinary share
48
C. Vendleader Limited
Registered number: 2445163
Date and place of 21st November, 1989
incorporation: England
Registered office: Xxxxxxx Xxxxx
Xxxx Xxxxxx
Xxxxxxxx
XX0 0XX
Directors: <> B.E. Xxxxx
<> X.X. Xxxxxxxx
Secretary: <> X. Xxxxxx
Accounting reference date: 31st December
Auditors: None appointed
Authorised capital: 1,000 ordinary shares of
Pound Sterling 1 each
Issued capital: 1,000 ordinary shares of
Pound Sterling 1 each
Shareholders: CCSB: 999 ordinary shares
X.X. Xxxxxxxx: 1 ordinary share
49
SCHEDULE 4
Part 1
PROPERTIES
A. Freehold
1. Description: Factory premises at Bierton Road,
Aylesbury comprised in a conveyance
dated 18th February, 1955 made
between X.X.X. Xxxxx and J.R.G.
Clover (1) and Xxxxxxx Xxxxxxxxx &
Sons Limited (2)
Legal owner: Cadbury Schweppes
Beneficial owner: CCSB
Present use: Factory (closed)
2. Description: All the freehold property known as
0, Xxxxxxxxx Xxxx, Xxxxxxxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxxx of which
the legal owner noted below is the
registered proprietor at HM Land
Registry with title absolute under
title number DU114777
Legal owner: CCSB
Beneficial owner: CCSB
Present use: Depot
M 3. Description: All the freehold property known as
the distribution depot, Xxxxxxxxx
Xxx, Xxxxxxxxx, Xxxxxxx, Xxxxxxx
Xxxxxx of which the legal owner
noted below is the registered
proprietor at HM Land Registry with
title absolute under title number
EGL205683
Legal owner: CCSB
Beneficial owner: CCSB
Present use: Distribution depot and warehouse
M 4. (i) Description: All that freehold property known as
land at Colwall more particularly
described in a conveyance dated 28th
July, 1897 between J Schweppes and
Company Limited (1) and Xxxxxxx
Xxxxxxx Xxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxx (2) and Schweppes Limited (3)
excluding the land transferred by
and described in a conveyance dated
30th June, 1967 and made between
Schweppes Limited (1) and H.M.
50
Postmaster General (2) a memorandum
of which is endorsed on the
conveyance dated 28th July, 1897.
Legal owner: Cadbury Schweppes
Beneficial owner: CCSB
Present use: Factory
(ii) Description: The pipeline and spring head at
Colwall, Hereford & Worcester which
supplies mineral water to the
property described in (i) above and
is more particularly described in a
licence dated 5th January, 1987 made
between Cadbury Schweppes (1) and
CCSB (2)
Legal owner: CCSB (as licensee only)
Beneficial owner: CCSB (as licensee only)
Present use: For supplying mineral water to the
property described in (i) above.
M 5. Description: Part of the Apex Works, Angel Road
and land at Nobel Road, Xxxx Estate,
Edmonton, London Borough of Enfield
registered under title numbers
MX259810, MX264648 and EGL311725
Legal owner: CCSB
Beneficial owner: CCSB
Present use: Factory, car park, stacking ground
and warehouse
M 6. Description: All that freehold property known as
0, Xxxxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxx Xxxxxx Xxxxxxxxxxxxxxx and
registered at H.M. Land Registry
under title number BM143124
Legal owner: CCSB
Beneficial owner: CCSB
Present use: Factory
M 7. Description: 1) All that freehold property known
as (land lying to the south of
Xxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxxxxx of
which the legal owner noted
below is the proprietor
registered at HM Land Registry
under title number NN145525 with
title absolute
(2)All that freehold property known
as land lying to the south of
Xxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxxxxx of
which the legal owner noted
below is the proprietor
51
registered at HM Land Registry
under title number NN144328 with
title absolute
Legal owner: CCSB
Beneficial owner: CCSB
Present use: Distribution centre and agricultural
land
8. Description: Freehold land and buildings on the
south west side of Xxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxx of which
the legal owner mentioned below is
registered as the owner at HM Land
Registry with title absolute under
title number NN113619
Legal owner: CCSB
Beneficial owner: CCSB
Present use: Warehouse - let to Contract Papers
(Holdings) Limited for a term of 2
years from 22nd July, 1994 at a rent
of Pound Sterling 80,000 and then
for a further year by virtue of a
lease dated 6th April, 1996 at a
rent of Pound Sterling 85,000 from
22nd July, 1996
M 9. (i)Description: All that freehold property known as
land on the south-east side of Cray
Road, Foots Cray, Sidcup, Kent of
which the legal owner mentioned
below is registered as the owner at
HM Land Registry with title absolute
under title number K129973
Legal owner: Cadbury Schweppes
Beneficial owner: CCSB
Present use: Factory and depot
M (ii) Description: All the freehold land known as
Sportsfield and Car Park, Jubilee
Road, Foots Cray, Sidcup, Kent of
which the legal owner noted below is
registered as the proprietor at HM
Land Registry with title absolute
under title number SGL54096
52
Legal owner: Cadbury Schweppes
Beneficial owner: CCSB
Present use: Factory and depot
(iii) Description: All that freehold property known as
land and buildings on the south-east
side of Cray Road, Foots Cray,
Sidcup, Kent of which the legal
owner noted below is the proprietor
registered at HM Land Registry with
title absolute under title number
SGL8889
Legal owner: Cadbury Schweppes
Beneficial owner: CCSB
Present use: Factory and depot
(iv) Description: All that freehold land lying to the
east of Cray Road, Foots Cray,
Sidcup, Kent of which the legal
owner noted below is the proprietor
registered at HM Land Registry under
title number K154959
Legal owner: Cadbury Schweppes
Beneficial owner: CCSB
Present use: Factory and depot
(v) Description: All that freehold property known as
Zodiac Works, Foots Cray, Sidcup,
Kent of which the legal owner noted
below is the proprietor registered
at HM Land Registry with title
absolute under title no. SGL48107
Legal owner: CCSB
Beneficial owner: CCSB
Present use: Warehouse/factory
(vi) Description: All that freehold property known as
land on the south-east side of Cray
Road, Sidcup, Kent of which the
legal owner noted below is
registered as the proprietor at HM
Land Registry with possessory title
under title number SGL512047
53
Legal owner: CCSB
Beneficial owner CCSB
Present use: Factory and depot
(vii) Description: All that freehold property known as
land and buildings on the north side
of Sidcup by-pass road, Sidcup, Kent
of which the legal owner noted below
is the proprietor registered at HM
Land Registry with title absolute
under title number SGL28173
Legal owner: Cadbury Schweppes
Beneficial owner: CCSB
Present use: Factory and depot
(viii) Description: All that freehold property known as
land on the south-east side of Cray
Road, Sidcup, Kent of which the
legal owner noted below is the
proprietor registered at HM Land
Registry with possessory title under
title number SGL415787
Legal owner: Cadbury Schweppes
Beneficial owner: CCSB
Present use: Factory and depot
(ix) Description: All that land described in (a) a
Conveyance dated 21st March, 1956
between X.X. Xxxxxx and X. Xxxxxx
(1) and Schweppes Limited (2) (but
excluding the property described in
a conveyance dated 12th October,
1972 a memorandum of which is
endorsed on the conveyance) and (b)
the land coloured pink on the plan
attached to a Deed of Exchange dated
27th March, 1957 between Lanes
Limited (1) and Schweppes Limited
(2)
Legal owner: Cadbury Schweppes
Beneficial owner: CCSB
Present use: Factory and depot
54
M 10. Description: (1) 9.553 acres at Xxxxxx Xxxx,
Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx
described in Feu Contract
between East Kilbride
Development Corporation and
Cadbury Schweppes recorded in
the Division of the General
Register of Sasines applicable
to the County of Lanark on
15th June, 1982.
(2) Subjects to north of
Queensway, East Kilbride
registered in the Land
Register for Scotland under
title number LAN 21485.
(3) 1.926 hectares at Xxxxxxxx
Xxx, Xxxx Xxxxxxxx registered
in the Land Register for
Scotland under title number
LAN 113332.
(4) (i) Woodland strip, (ii)
triangular area of land and
(iii) superiority interests of
subjects (1) and (2) all
registered in the Land
Register for Scotland under
title number LAN 113572.
Legal owner: (1) Cadbury Schweppes
(2) Cadbury Schweppes
(3) CCSB
(4) CCSB
Beneficial owner: CCSB
Present use: Factory
M 11. Description: Firstly, all that freehold property
known as land lying to the north of
Grand Stand Road and fronting to
Lingwell Gate Lane, Lawns Lane and
the Estate Road, Xxxx Gate,
Wakefield of which the legal owner
noted below is registered at HM Land
Registry under title number
WYK421152 with title absolute and
secondly all that freehold property
known as land lying to the north of
00
Xxxxx Xxxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxx of which the legal owner
noted below is the registered
proprietor registered at HM Land
Registry with possessory title under
title number WYK435648.
Legal owner: CCSB
Beneficial owner: CCSB
Present use: Factory
B. Leasehold (VACANT)
12. Description: All that land known as Heathfield
depot, 0, Xxxxxx Xxxx, Xxxxxxxxxx,
Xxxxx Xxxxxx, Xxxxxx Xxxxxx more
particularly described in the lease
brief details of which appear below.
Date of and parties 9th July, 1981 between Ushers
to lease: Brewery Limited and Xxxxxxxx &
Cochrane (Southern) Limited
(assigned to CC Soft Drinks Limited
by an Assignment dated 23rd October,
1986).
Legal owner: CCSB
Beneficial owner: CCSB
Term: 25 years expiring on 5th June, 2005
Present rent: Pound Sterling 65,000 per annum
Next rent review: 6th June, 1995
Present use: Vacant depot
13. Description: All that land known as Xxxx 00,
Xxxxxxx Xxxx, Xxxxxxx more
particularly described in the lease
brief details of which appear below.
Date of and parties 31st January, 1985 between X.X.Xxxx
to lease: (Property Developments) Limited (1)
Home Appliance Distributors Limited
(2) Toshiba (UK) Limited (3).
Legal owner: CCSB
Beneficial owner: CCSB
Term: 25 years expiring on 24th December,
2009
Present rent: Pound Sterling 39,500 per annum
Next rent review: 24th December, 1999
Present use: Vacant depot
14. Description: All that land known as Xxxx 00,
Xxxxxxx Xxxxx, Xxxxxxxx Grange,
56
Warrington more particularly
described in the lease brief details
of which appear below registered
under title number CH173588.
Date of and parties 14th November, 1980 between
to lease: Warrington Development Corporation
(1) and Schweppes Limited (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 25 years expiring on 14th
September, 2005
Present rent: Pound Sterling 13,000 per annum
Next rent review: 15th September, 2000
Present use: Vacant depot
Leasehold continued - Self Occupied
M 15. Description: All that land known as Xxxx 0,
Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxx registered with
title absolute under title number
AV60042
Date of and parties 18th March, 1981 between
to lease: Universities Superannuation Scheme
Ltd (1) and Coca-Cola Southern
Bottlers Ltd (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 25 years expiring 23rd June, 2005
Present rent: Pound Sterling 170,000 per annum
Next rent review: 24th June, 2000 - nil increase
24/6/95
Present use: Distribution depot/warehouse
57
M 16. Description: All that land known as Block A,
Nobel Road, Edmonton more
particularly described in the
lease brief details of which
appear below.
Date of and parties to 15th February, 1996 between
lease: Credit Suisse Fides Trust
Limited, Xxx Xxxxx and Xxx Xxxxx
Lan Do (1) and CCSB (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 3 years expiring 11th January,
1999 - break option
12th January, 1998
Present rent: Pound Sterling 109,760 - if
lease continues for full 3 years
no rent shall be payable for the
last 3 months of the term
Next rent review: None
Present use: Warehouse
M 17. Description: All that land known as Xxxxx X,
Xxxxx Xxxx, Xxxxxxxx more
particularly described in the
lease brief details of which
appear below.
Date of and parties to 15th February, 1996 between
lease: Xxxxxx (Edmonton) Limited (1)
and CCSB (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 3 years expiring 11th January,
1999 - break option 12th
January, 1998
Present rent: Pound Sterling 215,636 per
annum - If lease continues for
full 3 years no rent shall be
payable for the last 3 months
of the term
Next rent review: None
Present use: Warehouse
18. Description: Xxxx X0, Xxxxxx Xxxxxxxxxx
Xxxxxx, Xxxxxxxx Road, Thorpe,
Egham, Surrey
Date of and parties to 20th March, 1989 between D.J.
lease: Construction Services Limited
(1) and CCSB (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 10 years expiring on 31st
December, 1998
Present rent: Pound Sterling 29,500 per annum
Next rent review: 1st January, 1998
58
Present use: Depot - used for storage of
special events/promotional
equipment
19. Description: All that land known as Xxxx 00,
Xxxxxxx Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx Xxxxxxxxxx
more particularly described in
the lease brief details of
which appear below as
registered at HM Land Registry
under title number GM214391.
Date of and parties to 13th June, 1980 between Midland
lease: Bank Trust Company Limited (1)
and Canvermoor Limited (2)
Legal owner: CCSB by a transfer dated 17th
June, 1988
Beneficial owner: CCSB
Term: 25 years expiring on 24th
March, 2005
Present rent: Pound Sterling 18,600 per annum
Next rent review: 25th March, 2000
Present use: Depot
M 20. Description: All that land known as Xxxx 0,
Xxxxxxxx Xxxxx, Xxxxxxxx
Xxxxxxxxxx Xxxx, Xxxxxx Xxxxxx
more particularly described in
the lease brief details of
which appear below.
Date of and parties to Sub-underlease dated 6th
lease: August, 1992 between Facit
Limited (1) and CCSB (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 25th March, 1992 until 2nd
January, 1997
Present rent: Pound Sterling 101,100 per
annum
Next rent review: No further reviews. However,
no evidence of review having
taken place on 15th August,
1994 - but presumed nil
increase.
Present use: Depot/equipment workshop
M 21. Description: All that land known as 0,
Xxxxxxxx Xxxxx, Xxxxxxxx
Xxxxxxxxxx Xxxx, Xxxxxx Xxxxxx
more particularly described in
the lease brief details of
which appear below.
Date of and parties to 10th July, 1986 between Xxxxxx
lease: Keynes Development Corporation
59
(1) and Xxxxx and Xxxxx Limited
(2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 15 years expiring 24th
December, 1998
Present rent: Pound Sterling 204,350 (No
memorandum of rent reviews in
title deeds where initial rent
is Pound Sterling 102,175)
Next Rent Review: No further review. However,
1994 rent review, no notice
served.
Present use: Depot/workshop
Note: There is a licence for Xxxx 0 Xxxxxxxx Xxxxx
contained in a letter dated 4.3.1996 from Masons
pending grant of an underlease for 1 year (expiring
25.3.1997) at rent of Pound Sterling 103,900 p.a.
22. Description: The Ground floor office suite
(part only), Xxxxxxx House,
Spaniel Row, Nottingham more
particularly described in the
lease brief details of which
appear below.
Date of and parties to 12th October, 1989 between
lease: Xxxxxx Xxxxx Properties Limited
(1) and CCSB (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 12 years expiring 31st May,
2001
Present rent: Pound Sterling 8,000 per annum
Present use: Offices
23. Description: The Ground floor office suite
(part only), Xxxxxxx House,
Spaniel Row, Nottingham more
particularly described in the
lease brief details of which
appear below.
Date of and parties to 24th July, 1989 between Thames
lease: Heath Properties Limited (1)
and CCSB (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 12 years expiring 31st May,
2001
Present rent: Pound Sterling 66,400
Next rent review: 1st June, 1997
Present use: Offices
24. Description: Offices on 0xx Xxxxx, Xxxxxx
00
Xxx, Xxxxxxxxxxxx more
particularly described in a
licence, brief details of which
appear below.
Date of and parties to Licence - terms recorded in a
lease: letter dated 24th September,
1991
Legal owner: Licensee - CCSB
Beneficial owner: CCSB
Term: Licence terminated by either
party giving one year's prior
written notice
Present rent: Pound Sterling 88,308 per
annum
Next rent review: 29th September, 2000
Present use: Offices
M 25. Description: All that land known as 00/00
Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxx
more particularly described in
a lease brief details of which
appear below.
Date of and parties to Underlease dated 7th December,
lease: 1995, between Richardsons
Westgarth plc (1) and CCSB (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 5 years expiring 7th December,
2000 - break option on 24th
June, 1998
Present rent: Pound Sterling 100,000 per
annum
Next rent review: 24th June, 1998
Present use: Depot/warehouse
M 26. (i) Description: All that land known as Xxxxxx
Xxxxx, Xxx Xxxxxxx Xxxxx,
Xxxxxxxx more particularly
described in a lease brief
details of which appear below.
Date of and parties to 8th March, 1988 between Sun
lease: Alliance and London Assurance
Company Limited (1) and CCSB
(2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 25 years expiring 24th December
2012
Present rent: Pound Sterling 736,000 per
annum
Next rent review: 25th December, 1998
Present use: Offices
61
(ii) Description: All that land known as Xxxxx
Xxxxx, Xxx Xxxxxxx Xxxxx,
Xxxxxxxx more particularly
described in the lease brief
details of which appear below.
Date of and parties to 8th March, 1988 between Sun
lease: Alliance and London Assurance
Company Limited (1) and CCSB
(2).
Legal owner: CCSB
Beneficial owner: CCSB
Term: 25 years expiring 24th December, 2012
Present rent: Pound Sterling 600,000 per annum
Next rent review: 25th December, 1997
Present use: Offices
(iii) Description: All that land known as Xxxxxx
Xxxxx, Xxx Xxxxxxx Xxxxx,
Xxxxxxxx more particularly
described in the lease brief
details of which appear below.
Date of and parties to 8th March, 1988 between Sun
lease: Alliance and London Assurance
Company Limited (1) and CCSB
(2).
Legal owner: CCSB
Beneficial owner: CCSB
Term: 25 years expiring 24th December, 2012
Present rent: Pound Sterling 600,000 per annum
Next rent review: 25th December, 1996
Present use: Offices
(iv) Description: Storage area at 0, Xxxxxxx
Xxxxx, Xxxxxxxx more
particularly described in the
lease brief details of which
appear below.
Date of and parties to 19th April, 1989 between Sun
lease: Alliance and London Assurance
Company Limited (1) and CCSB
(2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 25 years expiring 24th
December, 2012
Present rent: A peppercorn payable on 25th
December in each year (if
demanded) and a proportion of
the insurance paid yearly by
the Landlord (the Insurance
Rent)
62
Next rent review: None
Present use: Storage
(v) Description: 11 car parking spaces, Civic
Centre, Uxbridge more
particularly described in the
lease brief details of which
appear below.
Date of and parties to 27th July, 1993 between Sun
lease: Alliance and London Assurance
Company Limited (1) and CCSB
(2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 27th July, 1993 to 23rd December, 2012
Present rent: Pound Sterling 2,530 per annum
Next rent review: 7th March, 1998
Present use: Car parking for private motor
cars
(vi) Description: 45 car parking spaces, Civic
Centre, Uxbridge more
particularly described in the
lease brief details of which
appear below.
Date of and parties to 4th June, 1990 between Sun
lease: Alliance and London Assurance
Company Limited (1) and CCSB
(2).
Legal owner: CCSB
Beneficial owner: CCSB
Term: 7th March, 1988 to 23rd December, 2012
Present rent: Pound Sterling 10,350 per annum
Next rent review: 7th March, 1993 and every 5
years thereafter. No rent
reviews have taken place
Present use: Car parking for private motor cars
(vii) Description: All that land known as the
Staff shop at Uxbridge, Unit 1
on Xxxxx 0, Xxx Xxxxxxx Xxxxx,
Xxxxxxxx more particularly
described in the lease, brief
details of which appear below.
Date of and parties to Lease dated 30th April 1993
lease: between Sun Alliance and London
Assurance Company Ltd (1) and
CCSB (2)
Legal owner: CCSB
Beneficial owner: CCSB
63
Term: 24th March, 1998 with a
tenant's right to break by
2 month's notice expiring on 29th
January, 1996
Present rent: Pound Sterling 22,000 per annum
Next rent review: None
Present use: Retail shop for sales to
employees and contractors of
CCSB only of products
manufactured by the Cadbury
Schweppes' Group and the
Coca-Cola Group.
27. Description: All that land known as Xxxx 00,
Xxxxxxx Xxxxx, Xxxxxxxx Grange,
Warrington more particularly
descried in the lease, brief
details of which appear below
and registered at HM Land
Registry under title number
CH192094
Date of and parties to 14th May, 1982 between Wyndham
lease: Instruments Limited (1) Compair
Construction and Mining Ltd.
(2) and Compair Limited (3)
(assigned to CCSB by an
assignment 6th July, 1987)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 25 years expiring on 24th December, 2006
Present rent: Pound Sterling 13,750 per annum
Next rent review: 25th December, 1996
Present use: Depot/workshop
64
M 28. Description (1) Depot at Peel Park Place,
College Xxxxxx, East Xxxxxxxx.
(2) Offices at 0 Xxxx Xxxx
Xxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx.
Date of and parties to (1) Sub-lease between Xxxxxxxx
lease: Xxxxx & Company Limited and
CCSB - to be executed.
(2) Lease between KCI
Xxxxxxxxxx Limited and CCSB
- to be executed.
Legal owner: (1) CCSB
(2) CCSB
Beneficial owner: CCSB
Term: (1) 1/4/96 to 31/3/98 with a
tenant's option to break at
or after 30/9/97
(2) 1/4/96 to 31/3/98 with a
tenant's option to break at
or after 30/9/97
Present rent: (1) Pound Sterling 258,000 p.a.
exclusive of VAT
(2) Pound Sterling 28,928.52
p.a. exclusive of VAT
Next rent review: N/A
Present use: Depot and relative offices.
65
Leasehold (continued)- Sub-tenanted
29. Description: All that land at Minto Road, Altens,
Aberdeen more particularly described
in the lease brief details of which
appear below.
Date of and parties to Headlease dated 26th September and
lease: 3rd October and registered in the
Books of Council and Session on 22nd
October, all 1985 between
Confederation Life Insurance Company
and Confederation Life Insurance
Company (UK) Limited (1) and
Schweppes Limited (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: From 30th September, 1985 to 28th
September, 2010
Present rent: Pound Sterling 61,000 p.a. exclusive
of VAT as from last rent review date
of 29th September, 1995 (memorandum
recording the rent review is
presently being executed)
Next rent review: 29th September, 2000
Present use: Believed depot
Sub-tenancy: The property has been sublet by
virtue of a sub-lease dated 6th
November, 1994 and 10th January, 1995
and registered in the Books of
Council and Session on 25th January,
1995 between CCSB (1) and LFF
(Scotland) Limited (2) for a term
from 2nd August, 1994 until 28th
September, 2010. Sub-tenant has
option to break on 2nd August, 2004.
The current rent is Pound Sterling
61,000 p.a. exclusive of VAT.
66
30. Description: All that land known as Xxxx 00,
Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxx
Xxxxxxxx, Xxxxxxxxxx more
particularly described in the lease
brief details of which appear below.
Date of and parties to Lease dated 4th October, 1982 between
lease: Hayward Industrial Development
Limited (1) (the landlord) and
Canvermoor Limited (2) (sub-tenant)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 25 years from 4th October, 1992
Present rent: Pound Sterling 25,000 per annum
Next rent review: None
Present use: Believed Depot/workshop - sublet to
Two Wheels Trading Co. Limited for 1
year from 12th January, 1996 (with
break clause on 30.09.96) @ Pound
Sterling 25,000 p.a.
31. Description: All that land known as Xxxx 0, Xxxxxx
Xxxxx, Xxxxxxxxx Xxxx, Xxxxxxxxx more
particularly described in the lease
brief details of which appear below.
Date of and parties to 5th October, 1990 made between
lease: Ronverworth Limited (1) and CCSB (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 15 years from 24th June, 1990
Present rent: Pound Sterling 41,153 p.a.
Next rent review: 24th June, 2000
Present use: Currently used as a children's indoor
play centre. Sublet to Ashlett (UK)
Limited for term expiring on 21st
June, 2005 at rent of Pound Sterling
25,000 until 10.10.1996 and from 10th
October 1996 to 9th October 1998
Pound Sterling 28,750 per annum and
10th October 1998 to 23rd June 2000
Pound Sterling 31,000. The rent
review date is 24th June, 2000
67
32. Description: Xxxx X, Xxxxxxxxx Xxxxxxxxxx Xxxxxx,
Xxxxxxxxx Xxxxxx, Xxxxxxx
Date of and parties to Headlease - dated 31st May, 1990
lease: between Niniven Trading SA and CCSB
for a term of 15 years from 25th
March, 1990.
Legal owner: CCSB
Beneficial owner: CCSB
Term: 15 years from 25th March, 1990
Present rent: Pound Sterling 53,750
Next rent review: 25th March, 2000
Present use: Depot
33. Description: Land known as Xxxxx 00 xxx 00,
Xxxxxxxx Xxx, Xxxxxxx more
particularly described in the leases,
brief details of which appear below,
which are registered at HM Land
Registry under one title number
NGL331225.
(i) Date of and 20th July, 1973 between Franthorne
parties to lease: Investments Limited (1) and Schweppes
Limited (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 35 years expiring on 24th June, 2008
Present rent: Pound Sterling 70,000
Next rent review: 24th June, 1998
(ii) Date of and
parties to lease: 20th July, 1973 between Franthorne
Investments Limited (1) and Schweppes
Limited (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 35 years expiring on 24th June, 2008
Present rent: Pound Sterling 15,510.26
Next rent review: 24th June, 1998
(iii) Date of and
parties to lease: 11th July, 1980 between Franthorne
Investments Limited (1) and Schweppes
Limited (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 28 years expiring on 24th June, 2008
Present rent: Pound Sterling 4,739.77
Next rent review: 24th June, 1998
68
(iv) Date of and 5th May, 1978 between Franthorne
parties to lease: Investments Limited (1) and Schweppes
Limited (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 30 years expiring on 24th June, 2008
Present Rent: Pound Sterling 4,796.43
Next rent review: 24th June, 1998
(v) Date of and parties 6th July, 1976 between Franthorne
to lease: Investments Limited (1) and Schweppes
Limited (2)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 35 years expiring on 24th June, 2008
Present rent: Pound Sterling 1,996.41
Next rent review: 24th June, 1998
Present use: Believed depot but the whole property
has been sublet pursuant to an
underlease dated 19th September, 1986
between Schweppes Limited (1) Xxxx
Transport Services Limited (2) and X.
Xxxx (3) at a rent of Pound Sterling
97,042.87 for a term which expires on
22nd June, 2008
34. Description: All that land known as Xxxx 0, Xxxxxx
Xxxxxx, Xxxxxxx Xxxxxxxxxx Xxxxxx,
Xxxxxxxxxx brief details of which are
contained in the lease as described
below.
Date of and parties to Headlease dated 20th January and 11th
lease: February and registered in the Books
of Council and Session on 1st March,
all 1983 between Xxxxxxxxxx
Development Corporation (1) and
Schweppes Limited (2).
69
Legal owner: CCSB
Beneficial owner: CCSB
Term: Expires 28th August, 1996
Present rent: Pound Sterling 11,960 per annum
(exclusive of VAT)
Next rent review: None
Present use: Depot
Sub-tenancy: The property has been sublet by virtue
of a sublease constituted by missives
dated 18th and 19th July and
registered in the Books of Council and
Session on 11th August, all 1994
between CCSB (1) and Entrotec Limited
(2) for a term to 28th August, 1996.
35. Description: Depot at Xxxx X000, Xxxxxxxxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx
as registered at HM Land Registry
under title number SY484956
Date of and parties to Headlease - 18th June 1979, between
lease: Oyster Lane Properties Ltd.(1)
Schweppes Ltd. (2) and Cadbury
Schweppes Ltd. (3)
Legal owner: CCSB
Beneficial owner: CCSB
Term: 35 years from 25th March, 1979
Rent and rent review: Headlease - Pound Sterling 275,000
p.a.
Date of next review is 25th March,
1999
Present use: Depot.
Note: Efco (see details below on sub-
tenancy) have obtained planning
permission for change of use to
manufacture/distribution of toughened
glass.
Sub-tenancy: The property has been sublet by a
sublease dated 18th July, 1996 between
Coca-Cola & Schweppes Beverages
Limited (1) and Efco Holdings Limited
(2) for a term from 1st August, 1996
until end of term under headlease
(less 3 days) at a rent of Pound
Sterling 100,000 per annum for period
70
1st August, 1996 until 24th March,
1998 and thereafter Pound Sterling
194,093 per annum until review on 25th
March, 1999
71
SCHEDULE 4
Part 2
TRANSFER PROPERTIES
1. All that freehold property known as Xxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxxxxxx described in a conveyance
dated 18th February, 1955 and made between Xxxxxx Xxxxxx,
Xxxxxx Xxxxx and Xxxx Xxxxxx Xxxxxx Clover (1) and
Xxxxxxx Xxxxxxxxx and Sons Limited (2) and more
particularly delineated and described on the plan annexed
to that conveyance and thereon coloured pink.
2. All that freehold property known as Cray Road, Sidcup,
Kent being in part registered and in part unregistered
title. The registered title numbers being K154959,
K129973, SGL54096, SGL8889 and SGL28173 all registered
with title absolute and part of title number SGL 260608
as comprised in a transfer dated 25th June, 1986 and made
between the Mayor and Burgesses of the London Borough of
Bexley (1) and Cadbury Schweppes Public Limited Company
(2) being land on the north side of Sidcup Bypass Road.
As to the unregistered part being (a) described in a
conveyance dated 21st March, 1956 and made between Xxxx
Xxxxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx Xxxxxx (1) and
Schweppes Limited (2) (but excluding the freehold
property described in a conveyance dated 12th October,
1972 a memorandum of which is endorsed on that
conveyance) and (b) the land coloured pink on the plan
attached to a deed of exchange dated 27th March, 1957 and
made between Lanes Limited (1) and Schweppes Limited (2).
3. All that heritable property at Xxxxxx Xxxx, Xxxx Xxxxxxxx
being the whole of two pieces of ground extending to 7.53
acres or thereabouts and 2.023 acres or thereabouts
respectively both in the Parish of East Kilbride and
county of Lanark being the subjects more particularly
described in, disponed (first) and (second) by and shown
edged red on plan A and plan B annexed and executed as
relative to feu contract between East Kilbride
Development Corporation and Cadbury Schweppes Public
Limited Company dated 20th May and 2nd June and recorded
in the division of the General Register of Sasines for
the County of Lanark on 15th June, all in the year 1982
and all that heritable property lying to the north of
Queensway, East Kilbride, registered under title number
LAN21485.
72
SCHEDULE 4
Part 3
PROPERTY MATTERS
1. Aylesbury
(1) Subject to subparagraph (2), the transfer of Aylesbury to
CCSB pursuant to the Agreement shall take place on the
tenth Business Day after receipt of written notice given
by either Cadbury Schweppes or CCSB to the other and
shall be in the form of the Transfer for
Aylesbury.
(2) A contract for the sale of Aylesbury having been entered
into before the date of this agreement:
(a) Cadbury Schweppes shall keep the Purchaser and
Coca-Cola UK informed in writing on a regular basis
of progress made after the date of this agreement in
connection with the sale of Aylesbury;
(b) Cadbury Schweppes shall at the request of CCSB join
in a transfer of Aylesbury to the contractual
purchaser on terms to be approved by Cadbury
Schweppes such approval not to be unreasonably
withheld or delayed; and
(c) Cadbury Schweppes shall not be obliged to complete
the transfer pursuant to the Agreement until after
that contract has come to an end otherwise than by
its having been completed.
(4) On completion of a transfer of Aylesbury to CCSB pursuant
to the Agreement, Cadbury Schweppes shall deliver to CCSB
a cheque in favour of H.M. Land Registry for an amount
equal to the registration fees calculated in accordance
with Scale 1 of the Land Registration Fees Order 1996 due
for registering that transfer.
2. Sodastream premises at Peterborough
Cadbury Schweppes shall use all reasonable endeavours to
obtain (prior to Completion if practicable) the
confirmation of the landlord in respect of the premises
at Peterborough occupied by CCSB under a licence
contained in two letters dated 24th September 1991 and
13th May 1992 that such licence may continue subject to
an amendment acknowledging that following Completion CCSB
will no longer form part of the same group as Sodastream
Limited.
3. Information
73
Prior to Completion, Cadbury Schweppes shall keep the
Purchaser and Coca-Cola UK informed in writing on a
regular basis of any progress made after the date of this
agreement in connection with:
(a) the renewal or extension of any lease under which a
Material Property is held;
(b) any rent review negotiations under any lease under
which a Material Property is held; and
(c) the renewal of the Colwall Lease;
4. Colwall
Cadbury Schweppes shall not renew the Colwall Lease prior
to Completion.
5. East Kilbride
The Sellers will use all reasonable endeavours prior to
Completion to procure the grant of the sub-lease and the
lease of the Properties referred to at paragraph 28(1)
and (2) of Part 1 of Schedule 4.
74
SCHEDULE 5
WARRANTIES
A. General
B. Accounts and Financial
C. Commercial
D. Taxation
E. Properties
F. Employees
A. GENERAL
A.1 Memorandum and articles of association
The copy of the memorandum and articles of association of
each Company attached to the Disclosure Letter is
accurate and complete in all respects and has annexed or
incorporated copies of all resolutions or agreements
required by the Companies Xxx 0000 to be so annexed or
incorporated.
A.2 Ownership of the Shares
(1) The Shares and the Deferred Shares together constitute
the whole of the issued and allotted share capital of the
Company.
(2) No person is entitled or has claimed to be entitled to
require any Company to issue any share or loan capital
either now or at any future date whether contingently or
not.
(3) (a) There is no option, right of pre-emption, right
to acquire, mortgage, charge, pledge, lien or other
form of security or encumbrance on, over and or
affecting any of the Shares or Deferred Shares set
out opposite the name of Cadbury Schweppes in
Schedule 1, nor is there any commitment to give or
create any of the foregoing and, so far as Cadbury
Schweppes is aware, no person has claimed to be
entitled to any of foregoing.
(b) There is no option, right of pre-emption, right to
acquire, mortgage, charge, pledge, lien or other
form of security or encumbrance on, over and or
affecting any of the Shares or Deferred Shares set
out opposite the name of Coca-Cola UK in Schedule 1,
nor is there any commitment to give or create any of
the foregoing and, so far as Coca-Cola UK is aware,
no person has claimed to be entitled to any of
foregoing.
75
(4) There is no option, right of pre-emption, right to
acquire, mortgage, charge, pledge, lien or other form of
security or encumbrance on, over or affecting any shares
in the capital of a Subsidiary nor is there any
commitment to give or create any of the foregoing and, so
far as the Sellers are aware, no person has claimed to be
entitled to any of the foregoing.
A.3 Subsidiaries, associations and branches
No Company:
(a) holds or beneficially owns or has agreed to acquire
any securities of any other corporation (whether
incorporated in the United Kingdom or elsewhere),
other than shares of a Subsidiary; or
(b) is or has agreed to become a member of any
partnership or other unincorporated association,
joint venture or consortium (other than recognised
trade associations); or
(c) has outside the United Kingdom any branch or any
permanent establishment (as that expression is
defined in the respective Double Taxation Relief
Orders current at the date of this agreement).
A.4 Ownership of assets
(1) One of the Companies owned at the Accounts Date all the
assets included in the Accounts and particulars of all
material fixed assets acquired or agreed to be acquired
by any Company since the Accounts Date are set out in the
Disclosure Letter.
(2) Except for current assets offered for sale or sold in the
ordinary course of trading, no Company has since the
Accounts Date disposed of any of the material assets
included in the Accounts or any material assets acquired
or agreed to be acquired since the Accounts Date.
(3) None of the property, assets, undertaking, goodwill or
uncalled capital of any Company (other than the
Properties) is subject to any material encumbrance
(including, without limitation, any debenture, mortgage,
charge, lien, deposit by way of security, xxxx of sale,
lease, hire-purchase, credit-sale or other agreement for
payment on deferred terms, option or right of pre-emption
or any agreement or commitment to give or create
any of the foregoing other than liens arising in the
ordinary course of trading of the Companies.
(4) So far as the Sellers are aware, the assets of each
Company comprise all the assets reasonably necessary for
the continuation of its business as carried on at the
date of this agreement.
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A.5 Compliance with statutes
No Company, nor (so far as the Sellers are aware) any of
its officers, agents or employees (during the course of
their duties), has, during the period of two years
preceding the date of this agreement or (so far as the
Sellers are aware) at any time prior to such two year
period, done or omitted to do anything which is a
contravention of any statute, order or regulation (made
under statute or statutory instrument or EC Directive),
in each case, which would be reasonably likely materially
and adversely to affect the business of the Companies
taken as a whole after the date of this agreement.
A.6 Licences and consents
The Companies have all material licences (including
licences, to any intellectual property used by the
Companies) necessary to carry on their businesses and no
Company has received notice of a breach of any of the
said licences, which would be reasonably likely
materially and adversely to affect the business of the
Companies taken as a whole after the date of this
agreement.
A.7 Litigation
(1) No Company is engaged in any litigation or arbitration
proceedings, as defendant, where the amount claimed
exceeds Pound Sterling 100,000 and, so far as the Sellers
are aware, there are no such proceedings pending or
threatened against any Company.
(2) In the case of all litigation or arbitration proceedings
in which any Company is involved, as defendant, where the
amount claimed does not exceed Pound Sterling 100,000,
the aggregate of all such amounts claimed does not exceed
Pound Sterling 1,500,000.
(3) So far as the Sellers are aware, there is no claim or
threat which has been made and is outstanding and is
likely to give rise to any litigation or arbitration
proceedings by or against any Company the amount of which
could reasonably be expected to exceed Pound Sterling
100,000.
77
A.8 Environmental matters
(1) In this paragraph:
(a) "Environmental Law" means all statutes, common law,
bylaws, regulations, directives, codes of practice
made under statute or statutory instrument and
official circulars issued by local government or
central government or other regulatory authority, in
the United Kingdom concerning Environmental Matters;
(b) "Environmental Matters" means the protection of the
environment or the generation, transportation,
storage, treatment or disposal of a Dangerous
Substance;
(c) "Environmental Licence" means any material permit,
licence, authorisation, consent or other approval
required under or in relation to any Environmental
Law;
(d) "Dangerous Substance" means any natural or
artificial substance (whether in the form of solid,
liquid, gas or vapour, alone or in combination with
any other substance) which could reasonably be
expected to cause significant harm to man or any
other living organism, or which could reasonably be
expected to cause significant damage to the
environment or public health or welfare, including
but not limited to special, hazardous, toxic or
dangerous waste; and
(e) "Relevant Property" means any premises now or since
5th January, 1987 owned, leased, occupied or
controlled by any Company.
(2) Each Company has obtained all requisite Environmental
Licences in relation to the operation of the plant,
machinery and processes as used in the business of such
Company (all of which are valid and subsisting) and each
Company has, during the period since 31st December, 1995
to the date of this agreement and, so far as the Sellers
are aware, at all times prior to 31st December, 1995,
complied with all material applicable Environmental Law
in relation to the operation of the plant, machinery and
processes as used in the business of such Company and
with the terms and conditions of all Environmental
Licences. None of the operations or processes undertaken
by the Companies falls to be authorised under Part I of
the Environmental Protection Xxx 0000.
78
(3) No Company has received any notice or other communication
stating or alleging that it is or may be in violation of
any material Environmental Law or Environmental Licence
or that any further Environmental Licence may be required
or that any Environmental Licence may be subject to
modification, suspension or revocation and so far as the
Sellers are aware there are no circumstances likely to
give rise to any such violation or modification,
suspension or revocation.
(4) No Company is engaged in any litigation or arbitration
proceedings concerning Environmental Law or Dangerous
Substances and none of the Sellers is aware of any threat
of such litigation or arbitration proceedings by or
against any Company.
(5) So far as the Sellers are aware, no Company is or is
likely to be responsible (wholly or in part) for any
clean up or other corrective action likely to cost in
excess of Pound Sterling 3,000,000 in aggregate in
relation to any Relevant Property or is subject to any
investigation or inquiry by any regulatory authority
under Environmental Law at any Relevant Property.
(6) The Sellers have made available to the Purchaser's
environmental consultants and/or legal advisers and,
where requested, provided copies of, the assessments
carried out by each Company pursuant to the Control of
Substances Hazardous to Health Regulations 1988 and of
any other environmental or health and safety assessment,
audit, review or investigation conducted by or on behalf
of any Company including any such assessment, audit,
review or investigation which contains details of costs
or estimated costs of undertaking all remedial work.
(7) So far as the Sellers are aware, no Company has used,
disposed of, generated, stored, transported, dumped,
released, deposited, buried or emitted any Dangerous
Substance at, on, from or under any Relevant Property or
at, on, from or under any other premises in circumstances
where this may reasonably be expected to lead to a
material liability for any of the Companies.
(8) So far as the Sellers are aware, no other person has
used, disposed of, generated, stored, transported,
dumped, released, deposited, buried or emitted any
Dangerous Substance at, on, from or under any Relevant
Property in circumstances where this may reasonably be
expected to lead to a material liability for any of the
Companies.
79
(9) So far as the Sellers are aware, there is no
contamination of groundwater underneath any Relevant
Property and there have been no discharges or spillages
of any substance likely to lead to such contamination in
circumstances where this may reasonably be expected to
lead to a material liability for any of the Companies.
(10) So far as the Sellers are aware, there are no storage
tanks below ground on any Relevant Property and there
have been no such tanks on any Relevant Property in the
past.
A.9 Capacity and consequences of sale
(1) Each of the Sellers has the requisite power and authority
to enter into and perform this agreement and the Tax
Deed.
(2) This agreement constitutes and the agreements,
instruments and other documents listed in Schedule 10
constitute or will, when executed, constitute binding
obligations on the relevant member of the Cadbury
Schweppes' Group (in the case of Cadbury Schweppes) or
the relevant member of the Coca-Cola Group (in the case
of Coca-Cola UK) in accordance with their respective
terms.
(3) Compliance with the terms of this agreement does not and
will not conflict with or constitute a default under any
provision of:
(a) any material agreement or instrument to which that
Seller or any Company is a party; or
(b) the relevant Seller's memorandum or articles of
association or equivalent documents.
B. ACCOUNTS AND FINANCIAL
B.1 Accuracy of Accounts
The Accounts:
(a) have been prepared under the historic cost convention (as
modified for the revaluation of land and buildings) and
in accordance with generally accepted accounting
principles and practices in the United Kingdom, the
Companies Xxx 0000 and other applicable statutes and
regulations;
80
(b) give a true and fair view of the state of affairs of the
Companies as at the Accounts Date and of the profit or
loss of the Companies for the period ended on the
Accounts Date;
(c) contain either provisions adequate to cover, or full
particulars in notes of, all taxation (including deferred
taxation) and other liabilities (whether quantified,
contingent or otherwise) of the Companies as at the
Accounts Date; and
(d) are not affected by any material unusual or non-recurring
items which are not reflected in the Accounts.
B.2 Stocks and fixed assets
(1) The Accounts have been prepared on a basis consistent
with the basis employed in the Companies' audited
accounts for each of the four preceding financial years
and in particular:
(a) the basis of valuation for stocks and work-in-
progress has remained substantially the same in
respect of the commencement and end of each of the
accounting periods of each of the Companies during
the four preceding financial years ended on the
Accounts Date or since the date of its incorporation
(whichever period is the shorter); and
(b) the rate of depreciation applied in respect of each
fixed asset has been applied over the four preceding
financial years in accordance with the notes to the
Accounts.
(2) In the Accounts full provision has been made for
redundant, obsolete, unsaleable, deteriorated or slow
moving stocks.
B.3 Books and records
All material accounts, books, ledgers, and other
financial records of the Companies have been properly
maintained in all material respects and contain proper
records of all material matters required to be entered in
them by the Companies Xxx 0000.
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B.4 Position since Accounts Date
Since the Accounts Date:
(a) each Company has conducted its business in a normal
and consistent manner in all material respects;
(b) no Company has entered into any material unusual
contract or commitment or otherwise departed
materially from its normal course of trading;
(c) there has been no deterioration in the turnover, the
financial or trading position of any Company; and
(d) no material event which has a financial impact on
any of the Companies has occurred which has not been
provided for in the Management Accounts .
B.5 Capital commitments
Except as disclosed in the Accounts no Company had any
material commitments on capital account outstanding at
the Accounts Date and since the Accounts Date no Company
has entered into nor agreed to enter into any material
capital commitments other than those listed in the
Disclosure Letter.
B.6 Dividends and distributions
(1) No dividend or other distribution of profits or assets,
including without limitation any distribution within the
meaning of s.209 of the Taxes Xxx 0000, has been or
agreed to be declared, made or paid by any Company since
the Accounts Date.
(2) All dividends or other distributions of profits or assets
declared, made or paid since the date of incorporation of
each Company have been declared, made and paid in
accordance with law and its articles of association.
B.7 Bank borrowings
The total amount borrowed by each Company from its
bankers does not exceed its overdraft facilities as set
out in the Disclosure Letter.
B.8 Loan capital and guarantees
No Company has outstanding any loan capital or any money
borrowed or raised (other than under any overdraft
82
facilities disclosed in relation to B.7 above), including
money raised by acceptances or debt factoring, or any
liability (whether present or future) in respect of any
guarantee or indemnity other than guarantees and
indemnities given in the ordinary course of trading of
the business of each of the Companies.
B.9 Continuation of facilities
In relation to any agreement, trust deed, instrument or
arrangement under which amounts disclosed under B.7 and
B.8 are outstanding:
(a) true and correct copies of all material documents
relating to it have been supplied to the Purchaser;
(b) so far as the Sellers are aware, there has not been
any material contravention of or non-compliance with
any of its terms;
(c) so far as the Sellers are aware, no steps for the
enforcement of any encumbrance have been taken or
threatened;
(d) so far as the Sellers are aware, there has not been
any alteration in its terms and conditions;
(e) none of the Sellers nor so far as the Sellers are
aware, any of the Companies has done anything which
might affect or prejudice its continuation;
(f) so far as the Sellers are aware, it is not dependent
on the guarantee of, or on any security provided by,
a third party; and
(g) so far as the Sellers are aware, it is not
terminable by reason of the sale of the Shares or
the Deferred Shares.
B.10 Government grants
No Company is subject to any arrangement for receipt or
repayment of any material grant, subsidy or financial
assistance from any government department or other body.
B.11 Loans
No Company has, since the Accounts Date, lent any money
of a material amount which has not been repaid to it in
accordance with the terms of that loan or owns the
benefit of any material debt (whether present or future)
other than debts accrued to it in the ordinary course of
its business.
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B.12 Bank accounts
(1) The Disclosure Letter contains all material details of all
of the Companies' bank accounts and the mandates relating to
those bank accounts.
(2) The statement of the Companies' bank accounts and of the
credit or debit balances on them as at a date not more
than eight days before the date of this agreement
attached to the Disclosure Letter is correct and none of
the Companies has any other material bank or deposit
account (whether in credit or overdrawn) not included in
the statement and since the date of that statement there
has not been any material payment out of any of the
accounts except for routine payments and the balance on
the accounts is not substantially different from the
balances shown on the statement.
B.13 Hedging Arrangements
All material details of all hedging (whether in respect
of values of materials, currencies or interest rates or
otherwise) and similar arrangements (including but not
limited to interest rate or currency swaps, collars,
options or similar agreements and other derivative
instruments) to which any of the Companies is a party
under which any party to the arrangement has any
outstanding obligation have been disclosed in the
Disclosure Letter.
C. CONTRACTS, COMPETITION LAW COMPLIANCE AND INSURANCE
C.1 Contracts
(a) True and complete copies of the supply, raw material
and other contracts requested by Coca-Cola Enterprises
and identified in the Disclosure Letter, have been
provided to it ("Contracts"); no Contract has been
varied or terminated; no notice of breach of a Contract
has been received and, so far as the Sellers are aware,
no such breach has occurred.
(b) The Sellers have made available to Coca-Cola
Enterprises all material packaging, raw material,
utilities and consumables supplier contracts
negotiated by CCSB Purchasing, Uxbridge, relating to
the business of the Companies.
(c) The Sellers are not aware of any material contract
entered into in the 3 years preceding the date of
this agreement outside the ordinary course of
trading, which has not been disclosed to Coca-Cola
Enterprises and which is not attached to or
identified in the Disclosure Letter; and
84
(d) A list of the top 30 customers of the Companies,
measured by volume, is attached to the Disclosure
Letter and all material terms of the contracts with
those customers of the Companies are annexed to the
Disclosure Letter.
C.2 Anti-competitive arrangements
(1) No Company is now, or has during the last six years been,
a party to any material agreement, arrangement, concerted
practice or course of conduct which:
(a) is subject to registration under the Restrictive
Trade Practices Acts 1976 and 1977 and which has not
been registered;
(b) contravenes in any material respect the provisions
of the Resale Prices Xxx 0000 or any secondary
legislation adopted under the Fair Trading Xxx 0000;
(c) infringes in any material respect Article 85(1) or
86 of the Treaty establishing the European Community
or any other anti-trust or similar legislation in
any jurisdiction in which that Company carries on
business or has assets or sales; or
(d) is void or unenforceable (whether in whole or in
part) or may render that Company liable to material
proceedings under any such legislation as is
referred to in subparagraphs (a) to (c) above.
(2) No Company is now, or has during the last six years been,
a party to any agreement or arrangement or been involved
in any business practice in respect of which an
undertaking has been given by or an order made against or
in relation to it pursuant to any anti-trust or similar
legislation in any jurisdiction in which it carries on
business or has assets or sales, including (without
limitation):
(a) Articles 85 or 86 of the Treaty establishing the
European Community;
(b) the Restrictive Trade Practices Acts 1976 and 1977;
(c) the Resale Prices Xxx 0000;
(d) the Fair Trading Act 1973 or any secondary
legislation adopted under that Act; and
(e) the Competition Xxx 0000.
85
(3) No Company is now or has during the last six years been,
a party to any agreement or arrangement or been involved
in any business practice in respect of which:
(a) any statement of objections or similar matter has
been received from any court, tribunal,
governmental, national or supra-national authority
in relation to competition law or anti-trust
matters; or
(b) an application for negative clearance or exemption
has been made to the Commission of the European
Communities.
C.3 Insurance
(1) The particulars of the insurance policies effected for
the benefit of each Company which are set out in the
Disclosure Letter are complete and correct in all
material respects.
(2) All such insurance policies are currently in full force
and effect and, so far as the Sellers are aware, nothing
has been done or omitted to be done which could make any
policy of insurance void or voidable and there is no
claim in excess of Pound Sterling 65,000 outstanding
under any such policy.
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D. TAXATION
D.1 General
(1) Tax returns
All necessary information, notices, accounts, statements,
reports, computations and returns which are required to
be made or given have been properly and duly submitted by
each Company to the Inland Revenue, H.M. Customs and
Excise and any other relevant taxation or excise
authorities whether of the United Kingdom or elsewhere
and all information, notices, computations and returns
submitted to the Inland Revenue, H.M. Customs and Excise
and such other authorities are true and accurate in all
material respects and are not the subject of any material
dispute nor are the Sellers aware of any circumstances
likely to become the subject of any material dispute with
such authorities.
(2) Taxation liabilities
All taxation of any nature whatsoever whether of the
United Kingdom or elsewhere for which any Company is
liable or for which any Company is liable to account has
been duly paid (insofar as such taxation ought to have
been paid) and without prejudice to the generality of the
foregoing each Company has made all such deductions and
retentions as it was obliged or entitled to make and all
such payments as should have been made.
(3) Penalties and interest
No Company has within the past two years paid or become
liable to pay, nor, so far as the Sellers are aware, are
there any circumstances by reason of which any Company is
likely to become liable to pay, any penalty, fine,
surcharge or interest to any taxation authority whether
charged by virtue of the provisions of the Taxes
Management Xxx 0000, VATA 1994 or otherwise.
(4) Investigations
No Company has within the past twelve months suffered any
investigation or audit by the Inland Revenue, H.M.
Customs and Excise, Department of Social Security, or any
other taxation or excise authority, and neither the
Seller nor any Company is aware of any such investigation
or audit planned for the next twelve months.
D.2 Distributions and other payments
(1) No Company has at any time after 1st January, 1987 repaid
or agreed to repay or redeemed or agreed to redeem or
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purchased or agreed to purchase or granted an option
under which it may become liable to purchase any shares
of any class of its issued share capital.
(2) No Company has at any time after 1st January, 1987
capitalised or agreed to capitalise in the form of shares
or debentures any profits or reserves of any class or
description or otherwise issued or agreed to issue any
share capital other than for the receipt of new
consideration (within the meaning of Part VI of the Taxes
Act 1988) or passed or agreed to pass any resolution to
do so.
(3) No securities (within the meaning of Part VI of the Taxes
Act 1988) issued by any Company and remaining in issue at
the date of this agreement were issued in such
circumstances that any interest or other distribution out
of assets in respect thereof falls to be treated as a
distribution under s.209(2)(d), (da) or (e) Taxes
Xxx 0000, nor has any of the Companies agreed to issue
securities (within that meaning) in such circumstances.
(4) So far as the Sellers are aware, all sums of an income
nature paid or payable by any Company since the Accounts
Date are wholly allowable as deductions or charges in
computing income for the purposes of Corporation Tax.
(5) Capital distributions
No Company has, within the six years prior to the date of
this agreement received any capital distribution to which
the provisions of s.189 TCGA 1992 could apply.
(6) Stock dividends
No Company has, within the six years prior to the date of
this agreement issued any share capital which is of a
relevant class as defined in s.249(2) Taxes Xxx 0000 nor
does it own any such share capital.
D.3 Capital allowances
(1) No balancing charge under the Capital Allowances Act 1990
(or other legislation relating to any capital allowances)
would be made on any 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 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.
88
(2) No event has occurred since the Accounts Date otherwise
than in the ordinary course of business by reason of
which any balancing charge may fall to be made against or
any disposal value may fall to be brought into account by
any Company under the Capital Allowances Act 1990 (or
other legislation relating to any capital allowances).
(3) Leased assets
No Company has made any claim for capital allowances in
respect of any asset which is leased to or from or hired
to or from any Company and no election affecting any
Company has been made or agreed to be made under s.53 or
s.55 Capital Xxxxxxxxxx Xxx 0000 in respect of any such
asset.
(4) Short-life assets
No Company has made any election under s.37 Capital
Allowances Act 1990 nor is it taken to have made such an
election under subsection (8)(c) of that section in
respect of any assets owned by any company as at the date
of this agreement.
(5) Industrial buildings
None of the assets expenditure on which has qualified for
a capital allowance under Part I of the Capital
Allowances Act 1990 has at any time since that
expenditure was incurred been used otherwise than as an
industrial building or structure in respect of any assets
owned by any Company as at the date of this agreement.
D.4 Capital gains
(1) Acquisition costs
Written particulars are available of the amount that
would be deductible under s.38 TCGA 1992 for each asset
of the Company on the disposal of which a chargeable gain
or allowable loss could arise where the book value shown
in or adopted for the purpose of the Accounts as the
value of that asset exceeds the amount which on a
disposal of that asset at the date of this agreement
would be deductible under s.38 TCGA 1992.
(2) Claims for roll-over and hold-over of gains
The Disclosure Letter sets out full particulars of all
claims and elections made (or assumed in the Accounts to
be made) under s.23, s.247, s.248, s.152 to s.158, s.161,
s.162 or s.165 TCGA 1992 (indicating which claims are
provisional) insofar as they could affect the chargeable
gain or allowable loss which would arise in the event of
a disposal after the Accounts Date by any Company of any
89
of its assets, and indicates which assets (if any) so
affected would not on disposal give rise to relief under
Schedule 4 TCGA 1992.
(3) 1982 Rebasing
No election under s.35(5) TCGA 1992 has been made in
relation to any Company, and the Accounts are prepared on
the basis that no such election will be made.
(4) The period during which an election under subsection (6)
could be made in relation to each Company has not (and
will not at Completion have) expired.
(5) No Company owns or has owned any asset on a disposal of
which by it paragraph 2 of Schedule 3 TCGA 1992 could
apply.
D.5 Employees
(1) Compensation for loss of office
No Company is under an obligation to pay nor has it since
the Accounts Date paid or agreed to pay any compensation
for loss of office or any gratuitous payment to its
employees which is, or which when aggregated with any
other such compensation or gratuitous payments to the
same employee is, in excess of Pound Sterling 50,000 and
which so far as the Sellers are aware is not deductible
in computing its income for the purposes of Corporation
Tax.
(2) Give-As-You-Earn
No Company participates in a scheme under s.202 Taxes Xxx
0000, and in relation to any such scheme disclosed, so
far as the Seller is aware, each Company has given effect
to the scheme in accordance with the contract and has
complied with that section and regulations made under it.
(3) Profit-related pay
Details of any scheme registered under Chapter III of
Part V Taxes Act 1988 applying to any Company or any of
its employees are set out in the Disclosure Letter.
(4) Pension contributions
Since the Accounts Date no Company has made any payment
which may be wholly or partially disallowed as an expense
or expense of management under s.112 Finance Xxx 0000.
D.6 Close companies
No Company is or has at any time within the last seven
90
years been a close company as defined in s.414 Taxes
Xxx 0000.
D.7 Group relief
(1) The Disclosure Letter contains details of all surrenders
or claims by way of group relief under the provisions of
s.402 to s.413 (inclusive) Taxes Xxx 0000 or surrenders
or claims of any amount of Advance Corporation Tax under
the provisions of s.240 Taxes Act 1988 made or received
or agreed by any of the Companies in the last seven years
including details of all payments made and interest on
those payments.
(2) The Disclosure Letter gives details of every written
agreement that any Company has entered into for the claim
or surrender of group relief under the provisions of
s.402 to s.413 (inclusive) Taxes Xxx 0000 or Advance
Corporation Tax.
D.8 Groups of companies
Acquisitions from group members
(1) No asset of any Company shall be deemed under s.179 TCGA
1992 to have been disposed of and reacquired by virtue of
or in consequence of the entering into or performance of
this agreement or any other event since the Accounts
Date.
(2) Intra-group transactions
No tax has been or, so far as the Sellers are aware, may
be assessed on any Company pursuant to s.190 TCGA 1992 in
respect of any chargeable gain accrued prior to the date
of this agreement and no Company has at any time within
the period of six years ending with the date of this
agreement transferred any asset other than trading stock
(including without limitation any transfer by way of
share exchange within s.135 TCGA 1992) to any company
which at the time of disposal was a member of the same
group (as defined in s.170 TCGA 1992).
D.9 Premiums and sale and lease back of land
No Company has entered into any transaction to which the
provisions of s.34, s.35, s.36 or s.780 Taxes Act 1988
have been or, so far as the Sellers are aware, could be
applied.
D.10 Overseas interests
(1) UK Residence
Each Company is and has throughout the past six years
91
been resident in the United Kingdom for corporation tax
purposes and has not been resident for tax purposes in
any other jurisdiction.
(2) Treasury consent for migration of companies, etc.
No Company has carried out or caused or permitted to be
carried out any of the transactions (i) specified at the
relevant time in s.765(1) Taxes Act 1988 otherwise than
with the prior consent of H.M. Treasury and (in the case
of a special as opposed to a general consent) full
particulars of which are contained in the Disclosure
Letter or (ii) specified at the relevant time in s.765A
Taxes Act 1988 without having duly provided the required
information to the Board of Inland Revenue.
(3) Controlled foreign companies and offshore funds
No Company in the past six years has 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 s.759 Taxes Xxx 0000.
(4) Agency for non-residents
No Company has been or, so far as the Sellers are aware,
is assessable to tax under s.78 Taxes Management Act 1970
(including that section as modified and applied for stamp
duty reserve tax) or under s.42A Taxes Xxx 0000.
D.11 Tax avoidance
(1) No Company has been a party to any transaction, within
the seven years prior to the date of this Agreement, to
which any of the following provisions could apply:
s.29 to s.34 TCGA 1992;
x.000 xx x.000 Xxxxx Xxx 0000;
x.000 Xxxxx Xxx 0000;
s.729 to s.738, s.774 or s.776 to s.787 in Part XVII
Taxes Xxx 0000.
(2) No Company has realised any allowable loss, within the
seven years prior to the date of this Agreement, to which
any of the following provisions have been or could be
applied other than transactions in respect of which all
Inland Revenue clearances have been obtained after
disclosure of all material facts:
s.139 TCGA 1992;
s.135 or s.136 TCGA 1992;
s.140C TCGA 1992;
s.213 to s.218 Taxes Act 1988 and s.192 TCGA 1992;
s.219 Taxes Xxx 0000;
s.703 Taxes Xxx 0000;
00
x.000 Xxxxx Xxx 0000.
(3) Transactions between persons under common control
No transactions to which the Company has been a party,
within the seven years prior to the date of this
Agreement, have taken place or are in existence which are
such that any of the provisions of s.770 to s.773 Taxes
Act 1988 have been or could be applied to them.
(4) Depreciatory transactions
No Company has realised any allowable loss, within the
seven years prior to the date of this Agreement, to which
the provisions of s.176 or s.177 TCGA 1992 have been or
could be applied.
(5) Disregarded and reconstructed transactions
No Company, so far as the Sellers are aware, has been
involved in any transaction or series of transactions,
within the seven years prior to the date of this
Agreement, which, or any part of which, may for any tax
purposes be disregarded or reconstructed by reason of any
motive to avoid, reduce or delay a possible liability to
tax.
(6) Pension scheme refunds
Since the Accounts Date no payment has been made to any
Company to which s.601 Taxes Act 1988 applies.
(7) Advance Corporation Tax
So far as the Seller is aware, within the period of three
years ending on the date of this agreement, there has not
been a major change in the nature or conduct of a
business or trade carried on by any Company within the
meaning of section 245(1) Taxes Act 1988 or any other
section applying section 245(4) Taxes Xxx 0000.
D.12 Stamp duty and stamp duty reserve tax
All documents in the enforcement of which any Company may
be interested have been duly stamped.
D.13 Value Added Tax
(1) Registration
Each Company is duly registered for the purposes of Value
Added Tax with special quarterly prescribed accounting
periods and no such registration is pursuant to paragraph
2 of Schedule 1 to VATA 1994 or subject to any conditions
imposed by or agreed with HM Customs and Excise and
93
details of the duty of any Company to make monthly
payments on account under the Value Added Tax (Payments
on Account) Order 1993 are as set out in the Disclosure
Letter.
(2) VAT group
Since 25th March, 1990 each Company is treated for Value
Added Tax purposes as a member of a VAT group of
companies of which Cadbury Schweppes is the
representative member and there has been no transfer of a
business as a going concern in respect of which any
Company could become, or has at any time since the
Accounts Date been liable under s.44 VATA 1994 since 25th
March, 1990.
(3) Secondary liability
No act or transaction has been effected in consequence of
which Cadbury Schweppes (by reason of any transaction
involving any Company) or any Company is or may be held
liable for any Value Added Tax under s.47, s.48 or s.55
VATA 1994 (agents, etc., tax representatives and customer
accounting) or s.29 VATA 1994 (self-billing) and no
direction affecting any Company has been given under
paragraph 2 of Schedule 6 to VATA 1994.
(4) Compliance
Each Company or as appropriate the Cadbury Schweppes of
the VAT group of which the Companies are or have been
members has, insofar as such compliance has had or could
have an effect on any Company, complied with all
statutory provisions, rules, regulations, orders and
directions concerning Value Added Tax including the
making on time of accurate returns and payments and the
proper maintenance and preservation of records and no
Company has been given any penalty liability notice
within s.64 VATA 1994, any surcharge liability notice
within s.59 of that Act, or any written warning within
s.76(2) of that Act.
(5) Exemption
No Company, if it were separately registered for VAT
purposes, would be or would have been partially exempt in
its current or preceding value added tax year.
(6) Option to charge VAT on supplies by the Company
The Disclosure Letter contains details of all the
properties for which valid elections to waive exemption
have been made or agreed to be made under Schedule 10 to
VATA 1994 by (i) a Company or (ii) any person in relation
to which a Company is a relevant associate as defined in
94
paragraph 3(7) of that Schedule.
(7) VAT on self-supplies in development and construction
As far as the Sellers are aware there are no past or
present circumstances by reason of which Cadbury
Schweppes (in connection with any matter affecting any
Company) or any Company is or could become liable to
Value Added Tax under paragraph 1 or 5 of Schedule 10 to
VATA 1994 (change of use, developers) or under the Value
Added Tax (Self-supply of Construction Services) Order
1989.
(8) Capital Goods Scheme
The Disclosure Letter sets out particulars of past
adjustments under Part XV for each capital item (if any)
within the meaning of Part XV of the Value Added Tax
Regulations 1995 ("Part XV") in relation to which a
liability under Part XV has arisen on Cadbury Schweppes
(in connection with any capital item used by any Company)
or could in future arise on any Company.
(9) Anti-avoidance
As far as the Sellers are aware there are no transactions
involving any Company which may cause HM Customs & Excise
to make a direction under paragraph 1 of Schedule 9A to
the VATA 1994.
95
E. PROPERTIES
E.1 Interpretation
In this Part E of Schedule 5, unless the contrary
intention appears:
"adverse effect" means in respect of a Property, a
material adverse effect on the use of the Property for
the Present Use;
"Lease" means any lease, agreement for lease, licence or
tenancy pursuant to which any Company holds any interest
in any Property;
"Present Use" means the use set out in Schedule 4.
In this Part E of Schedule 5, where any statement is
qualified by the expression "so far as the Sellers are
aware" or "to the best of the Sellers' knowledge,
information and belief" or any similar expression that
statement shall be and be deemed to be limited:
(a) in the case of Cadbury Schweppes, to the actual
knowledge of X. Xxxx, X. Xxxxxxxx, X.X. Xxxxxxx and
X.X.X. Xxxxx; and
(b) in the case of Coca-Cola UK, to the actual knowledge
of X. Xxxxxxx, X.X. Xxxx, X. Xxxxxx, X.X. Xxxxxx,
X. Xxxxx and X. Xxxxxx,
in each case, reasonable enquiry having been made, either
directly or through their designees, of each of the
directors of CCSB listed in Schedule 3 and of T Routledge
(Cadbury Schweppes' Property Department) but, for the
avoidance of doubt, subject to the qualification that
none of those persons have made any specific enquiries or
searches of third parties, organisations or bodies or
caused a title investigation to be carried out.
E.2 Title
(1) The Properties are the only properties owned or occupied
by any of the Companies.
(2) One of the Companies is the legal and beneficial owner in
possession of each Material Property as shown in Schedule
4. In relation to the Scottish Properties reference to
"legal and beneficial owner" shall be construed as being
a reference to the heritable proprietor who is infeft in
the Property concerned or the registered proprietor or
(in the case of leasehold properties) the tenant of that
Property.
(3) One of the Companies is in exclusive occupation of each
96
Material Property.
(4) The title to each Material Property situate in England is
vested in one of the Companies and is either registered
at H.M. Land Registry with absolute title or if
unregistered and freehold commences with a good root of
title and whether unregistered freehold or leasehold is
one which can be established in accordance with section
44 of the Law of Property Xxx 0000 and for any Material
Property situated in Scotland one of the Companies is the
heritable proprietor (as regards any freehold Property in
respect of which title is recorded in the Register of
Sasines) or the registered proprietor (as regards any
freehold Property in respect of which title is registered
in the Land Register of Scotland) or is the proprietor of
the tenants' interest under the Lease or is intended to
be so under the proposed Lease where the Lease is still
in the course of execution (as regards any leasehold
Property). As regards any freehold Property, the Sellers
are not aware of any reason why Land Certificates
containing no exclusion of indemnity under Section 12(2)
of the Land Registration (Scotland) Act 1979 should not
be issued in favour of CCSB.
E.3 Ancillary Rights
(1) If and to the extent that the means of access to and
egress from each Material Property (including the means
of escape in case of emergency) is not over roads which
have been adopted by the local authority and are
maintainable at public expense the relevant Company has
not , so far as the Sellers are aware, suffered any
interference with access to or egress from the Material
Property by reason of its not being so adopted and so
maintained which has had an adverse effect.
(2) If and to the extent that a Material Property is served
by drainage, water, electricity and gas which is not
connected to the mains by media located entirely on, in
or under the Material Property, the relevant Company has
not, so far as the Sellers are aware, suffered any
interference with such services to the Material Property
by reason of their not being so connected which has had
an adverse effect.
(3) So far as the Sellers are aware, there is no reason why
interference of the kind referred to in (1) and (2) above
should be expected to occur in the foreseeable future.
E.4 Encumbrances
(1) No Material Property is subject to, any standard
97
security, debenture, mortgage, charge, lien or deposit by
way of security or any agreement or commitment to create
any of the foregoing.
(2) No Material Property is subject to any restriction or
other encumbrance, easement, servitude, profit-a-prendre,
wayleave, option or right of pre-emption or overriding
interest as defined in section 70(1)(g), (h) and (k) of
the Land Registration Xxx 0000 which has an adverse
effect.
E.5 Disputes
There are no current disputes to which the relevant
Company is a party regarding boundaries, easements,
servitudes or covenants affecting any Material Property
or its use for the Present Use to which, so far as the
Sellers are aware, it does not have a full defence but
which should they be resolved against the Company would
have an adverse effect.
E.6 Planning
(1) The present use of each Material Property is that set out
in Schedule 4.
(2) No Company nor any person on behalf of it has made any
appeal in respect of any planning permission, or the
refusal or deemed refusal of any planning application, in
respect of any Material Property which has yet to be
determined and which should it be resolved against the
Company would have an adverse effect.
E.7 Notices, Orders and Proposals
So far as the Sellers are aware, neither any Seller nor
any Company has received any notice or order affecting
any Material Property which if implemented would have an
adverse effect and, so far as the Sellers are aware,
there are no proposals for any such notices or orders.
E.8 Leases
So far as the Sellers are aware, no notices have been
given or received under any Lease in respect of a
Material Property which are not being dealt with by or on
behalf of the Company in the usual course of business and
which, if not so dealt with, would have an adverse effect
and, so far as the Sellers are aware, there are no
proposals to serve such a notice.
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E.9 Contingent Leasehold Liabilities
(1) So far as the Sellers are aware, since 5th January, 1987
no Company has assigned or surrendered any leasehold
property of which it was the original tenant or in
respect of which it had entered into a covenant with the
landlord to observe and perform the tenant's covenants
under that lease without receiving expressly or impliedly
an indemnity in respect of its future liability under
that lease from the assignee or a release or a waiver
from the landlord.
(2) So far as the Sellers are aware, in respect of any
leasehold property in respect of which the Purchaser is
to procure that CCSB assumes the liabilities of Schweppes
Limited as referred to in clause 18(2) of this agreement
Schweppes Limited has not assigned or surrendered any
leasehold property of which it was the original tenant or
in respect of which it had entered into a covenant with
the landlord to observe and perform the tenant's
covenants under that lease without receiving expressly or
impliedly an indemnity in respect of its future liability
under that lease from the assignee or a release or a
waiver from the landlord.
E.10 Occupational Leases
(1) The Purchaser has been provided with complete copies of
each lease, tenancy, licence and agreement for occupation
and use to which any Material Property is subject
("Relevant Letting").
(2) So far as the Sellers are aware, the relevant Company has
not given or received under any Relevant Letting of any
Material Property any notice which is not being dealt
with by or on behalf of the Company in the usual course
of business and which if not so dealt with would have an
adverse effect.
E.11 East Kilbride - Leasehold Subjects
So far as the Sellers are aware, there is no reason why
the Sub-Lease and the Lease of the Properties referred to
at paragraph 28(1) and (2) of Part 1 of Schedule 4 should
not be completed in favour of CCSB in the terms provided
to the Purchaser.
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F. EMPLOYEES
F.1 Interpretation
In this paragraph F:
"Approved" means approved by the Board of Inland Revenue
as an exempt approved scheme (within the meaning of
section 592 of the Income and Corporation Taxes Act 1988)
and "Approval" has the corresponding meaning.
"employee" includes a director and any officer of any
Company whether or not he has entered into or works under
(or, where the employment has ceased, worked under) a
contract of employment.
"retirement/death/disability benefit" means any pension,
lump sum, gratuity or other like benefit given or to be
given on retirement or on death, or in anticipation of
retirement, or, in connection with past service, after
retirement or death, or to be given on or in anticipation
of or in connection with any change in the nature of the
service of the employee in question or given or to be
given on or in connection with the illness, injury or
disability of, or suffering of any accident by, an
employee.
"Scheme" means each of the schemes referred to in
paragraph F.3(1).
"Scheme Documents" means the documents constituting and
governing the Scheme (including all notices,
announcements and explanatory literature of current
effect) and all documents relating to the Companies'
participation in and obligations under the Scheme.
"Trustees" means the trustees of the Scheme and includes
their predecessors as trustees (except in
paragraph F.3(4)(b)) and the administrators of the Scheme
for the purposes of the Income and Corporation Taxes
Xxx 0000.
"Valuation" means the last actuarial valuation of the
Scheme being:
for the Main Scheme: the valuation as at 5 April, 1993
set out in a report dated 7 October, 1993;
for the Supplementary Scheme: the valuation as at 5 April, 1993
set out in a report dated 1 March, 1994;
and "Valuation Date" and "Valuation Report" means, in
relation to each Scheme, the date as at which the
Valuation was carried out and the report referred to
above.
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F.2 All material information relating to:
(a) terms of employment of present employees of the
Companies excluding retirement/death/disability
benefits;
(b) any bonus, profit participation, share option and
share purchase schemes in which any employees of the
Companies participate or may participate;
(c) trade union arrangements relevant to employees of
the Companies;
(d) loans made by any of the Companies to employees of
the Companies which remain outstanding; and
(e) disputes relating to employees of the Companies
which have occurred or arisen during the 12 months
prior to the date of this agreement has been
disclosed in the Disclosure Letter and is correct
and accurate in all material respects.
F.3 Pension Schemes
(1) In this subparagraph "Scheme" means the Seller's Scheme
as defined in Schedule 6.
(2) All information made available to the Purchaser or its
advisers in connection with the Scheme is complete and
accurate in all material respects.
(3) Except pursuant to the Scheme and the liabilities for
Schweppes Limited pensioners referred to in the
Disclosure Letter, no Company has paid, provided or
contributed towards, and no Company is under any
obligation or commitment (whether or not legally
enforceable) to pay, provide or contribute towards, any
retirement/death/disability benefit for or in respect of
any present or past employee (or any spouse, child or
dependant of any of them) of any Company or of any
predecessor in business of any Company.
(4) The Sellers have included the following in or by annexe
to the Disclosure Letter:
(a) complete copies of the Scheme Documents;
(b) the names and addresses of the current trustees and
administrators of the Scheme;
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(c) a complete copy of the Trustees' report to members
and the audited accounts of the Scheme (including
the auditor's report) for the last scheme year;
(d) a complete copy of the Valuation Report and, if not
stated in it, the name and address of the current
actuary to the Scheme;
(e) a list of the Companies' employees who are members
at the Scheme with full particulars of them relevant
to establish their entitlement to benefits;
(f) a statement of the rate at which during the current
and preceding Scheme year each participating
employer contributes to the Scheme and makes
payments in respect of the expenses of
administration, management and trusteeship of the
Scheme and of any proposal to change any such rate;
(g) full particulars of any discretionary practice of
the Scheme in the 5 years before the date of this
agreement;
(h) a complete copy of the contracting-out
certificate(s) on which the Companies are named and
of the Inland Revenue's letter of Approval in force
in relation to the Scheme; and
(i) the basic information about the Scheme required to
be given under Schedule 1 to the Occupational
Pension Schemes (Disclosure of Information)
Regulations 1986.
(5) The Scheme Documents contain full particulars of all the
benefits provided by and the terms of the Scheme,
including (but without limitation) any enhancement of or
addition to the benefits or terms in respect of any
person.
(6) The Scheme is Approved as of its commencement and there
is no ground on which Approval may be withdrawn or cease
to apply.
(7) The active members of the Scheme are contracted-out of
the State Earnings-Related Pension Scheme by reference to
the Scheme. There is no ground on which contracted-out
status may be withdrawn or cease to apply.
(8) The Companies have been properly admitted to
participation and the participation of each Company in
the Scheme has been Approved.
(9) All due contributions and expenses in respect of the
Scheme payable by the Companies have been paid.
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(10) The Scheme has at all times been operated in accordance
with, and the Companies participating in the Scheme have
observed and performed all their obligations under, the
Scheme Documents, the requirements of the Inland Revenue
for Approval, the requirements of the Occupational
Pensions Board applicable to the Scheme and all
applicable laws.
(11) No debt has become due in respect of the Scheme under
section 144 of the Xxxxxxx Xxxxxxx Xxx 0000.
(12) In determining the damages flowing from any breach of
warranties contained in this paragraph F.3(4), the
Companies' employees shall be deemed to be entitled to
have the Scheme, and any other retirement/death/disability
benefits which are now in existence or have been announced
or are proposed and any discretionary practices disclosed
pursuant to these warranties, provided and maintained without
reduction in benefits or additional cost to them.
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SCHEDULE 6
PENSIONS
1. Interpretation
In addition to the provisions of clause 1 of this
agreement, this Schedule is construed as follows:
This Schedule applies to each of the following schemes
separately:
The Cadbury Schweppes Pension Fund ("the Main Scheme")
The Cadbury Schweppes Supplementary Pension Scheme
("the Supplementary Scheme").
References to the "Seller's Scheme" are construed
accordingly and, in relation to any person, mean that one
or more of those schemes of which he is a member. Where
the context requires, the "Seller's Scheme" includes its
trustees.
"Actuary" means a Fellow of the Institute or Faculty of
Actuaries or a firm of those Fellows or a body making
available the advice of one of those Fellows.
"Agreed Actuarial Basis" means the basis set out in the
Actuary's Letter.
"Agreed Rate" means a rate per annum equal to the base
rate of Barclays Bank PLC from time to time compounded
monthly and references to interest at the Agreed Rate
mean interest accruing daily at the Agreed Rate.
"cash equivalent", "contracted-out scheme",
"contracting-out certificate", "contracted- out
employment" and "guaranteed minimum pension" have the
same meanings as in the Xxxxxxx Xxxxxxx Xxx 0000 and any
reference to any person's guaranteed minimum pension
includes his spouse's guaranteed minimum pension.
"Company" means each and all of the Companies.
"Company Employee" means a person who is employed by the
Company at any time during the Transitional Period.
Where the expression "Company Employee" is used in
relation to a particular date or period, it means a
person employed by the Company at that date or during
that period.
"Consenting Member" means each of the Company Employees
who joins the Purchaser's Scheme with effect from the
Membership Transfer Date and who has signed and returned
to the Purchaser's Scheme an Option Form with a request
for a transfer of assets to the Purchaser's Scheme
104
selected but excluding each of those Company Employees
who withdraws (in writing) that request before the
Payment Date.
"Contributory Earnings" has the same meaning as defined
in the rules of the Seller's Scheme.
"Exempt Approved" means an exempt approved scheme within
the meaning of section 592 of the Income and Corporation
Taxes Xxx 0000.
"Investment Adjustment" means the actual investment
return over the relevant period achieved in relation to
assets of the Seller's Scheme comprised in a globally
balanced portfolio of the same type as is now managed for
the Seller's Scheme by Flemings (where the Investment
Adjustment relates to the Main Scheme) or Gartmore (where
it relates to the Supplementary Scheme); the portfolio to
be established by the Seller's Scheme on the Membership
Transfer Date with assets of a mid-market value equal to
the Seller's Actuary's best estimate of the unadjusted
Transfer Amount; such estimate, as certified by the
Seller's Actuary, to be notified by the Seller to the
Purchaser before the Membership Transfer Date. In the
case of the Supplementary Scheme, if the Seller's Actuary
and the Purchaser's Actuary agree that it is not
practicable because of the amount involved to establish a
portfolio as described above, the Investment Adjustment
shall be by reference to the actual investment return of
the Supplementary Scheme as measured by Combined
Actuarial Performance Services Limited or, if that
measurement is not available for any period, by reference
to an index of equities and gilts comprised as mentioned
in the Actuary's Letter.
"Member" means, at any time or during any period
specified in this schedule, a member of the Seller's
Scheme who is accruing retirement benefits under the
Seller's Scheme, including any person who is continuing
in membership under the provisions of the Seller's Scheme
relating to temporary absence from work or maternity
leave.
"Membership Transfer Date" means 1st January 1997 or an
earlier date which the Purchaser may nominate by not less
than 1 month's advance written notice to the Seller or,
if the Purchaser notifies the Seller before 1st December
1996 that the Purchaser's Scheme will be contracted-out,
1st April 1997 or an earlier date which the Purchaser may
nominate by not less than 1 month's advance written
notice to the Seller.
"Option Form" means a form to be completed by Members and
delivered to the Seller's Scheme not later than 6 weeks
after the date of issue, being in all material respects
105
in the form set out in appendix A.
"Payment Date" means the date which is 21 days after the
later of:
(a) the date on which the Purchaser's Actuary notifies
the Seller's Actuary of his agreement of the
calculation and particulars mentioned in paragraph
6(A)(3);
(b) if any aspect of the calculation and particulars
referred to in paragraph 6(A)(3) is referred to an
independent Actuary pursuant to paragraph 9, the
date on which that Actuary announces his decision on
the disputed matter;
(c) subject to paragraph 4(B), the date on which the
Inland Revenue approves a transfer of assets from
the Seller's Scheme to the Purchaser's Scheme in
respect of the Consenting Members.
In paragraph 5 "Payment Date" means the actual date of
transfer of the Transfer Amount to the Purchaser's Scheme
or, as the case may be, to the Purchaser.
"Purchaser's Actuary" means an Actuary appointed by the
Purchaser and notified to the Seller for the purpose of
this schedule. Until further notice, the Purchaser's
Actuary is X. Xxxxxxxxx of Xxxxxxxxx Xxxx.
"Purchaser's Associate" means each of the Company, the
Purchaser's or the Company's holding company and any
company controlled by the Purchaser or the Company or by
the holding company of either of them.
"Purchaser's Scheme" means the retirement benefits scheme
or schemes mentioned in paragraph 3 and, where the
context requires, includes the trustees.
"Seller" means Cadbury Schweppes and "Seller's" is
construed accordingly.
"Seller's Actuary" means an Actuary appointed by the
Seller and notified to the Purchaser for the purpose of
this schedule. Until further notice, the Seller's
Actuary is X. Xxxxxxxxx of Xxxxxx Xxxxx.
"Transfer Amount" and "unadjusted Transfer Amount" have
the meanings given to them in paragraph 5.
"Transitional Period" means the period from and including
the date of Completion up to but excluding the Membership
Transfer Date.
2. Company's continued participation in Seller's Scheme
106
(A) The Seller will use its best endeavours to procure that
the Company is permitted to continue to participate fully
in the Seller's Scheme during the Transitional Period in
respect of:
(i) the Company Employees who are Members at Completion,
and
(ii) the Company Employees (including persons who become
employed by the Company during the Transitional
Period) who, under the provisions of the Seller's
Scheme which apply currently, are able or become
able to become Members during the Transitional
Period.
The Purchaser will procure that during the Transitional
Period the Company will observe those provisions of the
Seller's Scheme applicable to it as a participating
employer which have been disclosed to the Purchaser in
the Disclosure Letter.
(B) The Seller and the Purchaser will issue, or cause to be
issued, all necessary notices in relation to the Company
Employees' contracted-out employment so that their
employment will remain contracted-out during the
Transitional Period.
(C) The Purchaser will procure the payment to the Seller's
Scheme of employer's and members' contributions in
respect of the Company Employees who are Members during
and in respect of the Transitional Period, in the case of
Members' contributions at the rate applicable under the
rules of the Seller's Scheme at Completion, and in the
case of employer's contributions at the following
percentage rates of Contributory Earnings:
For the Main Scheme - 10%
For the Supplementary Scheme - A and B Conditions 2.2%
C Conditions 6.9%
D Conditions 39.4%
(D) The Seller will procure that no action is taken, and no
omission made, by it or by the Seller's Scheme or by any
other employer participating in it after the date hereof,
without the Purchaser's written consent, which would be
or cause directly or indirectly any of the following:
(i) the Seller's Scheme to terminate or to cease to be
Exempt Approved or a contracted-out scheme before
the transfer of the Transfer Amount to the
Purchaser's Scheme;
(ii) an alteration to the Seller's Scheme which affects
any of the benefits under it or contributions or
107
other payments payable to it (whether an increase or
a decrease) by or in respect of any Company
Employee;
(iii) a statement (oral or written) to any Company
Employee (or his representative) of any proposal to
make any such alteration;
(iv) the exercise of any power or discretion under the
Seller's Scheme in relation to any Company Employee;
(v) (without prejudice to (C) of this paragraph) an
alteration of any of the terms on which the Company
participates in the Seller's Scheme, including
(without limitation) any increase in the rate of
contributions charged to the Company and/or any
change to the basis on, or circumstances in which,
contributions or other payments are due from the
Company.
(E) If at any time during the Transitional Period the
Purchaser or the Company notifies the Seller that any of
the Company Employees have or will (before or after
Completion) become employed by any Purchaser's Associate,
the Seller will procure that the Purchaser's Associate is
permitted to participate in the Seller's Scheme during
the Transitional Period as if it were the Company for the
purposes of this schedule, but only if the Purchaser's
Associate enters into a deed of participation in the
Seller's Scheme in the form which the Seller's Scheme
reasonably requires and on the same terms of
participation as apply to the Company. In any event the
Transfer Amount shall only be paid to the Purchaser's
Scheme, subject to paragraph 8(B).
(F) The Purchaser agrees that if the salary of any Company
Employee who is a Member but not a Consenting Member is
increased after Completion by more than the salary
increase assumption in the Agreed Actuarial Basis and as
a result the cost of providing his benefit as at the
Membership Transfer Date (or earlier date of leaving the
Seller's Scheme) exceeds the part of the Transfer Amount
which would have related to him had he been a Consenting
Member, then the Purchaser shall pay to the Seller's
Scheme a contribution equal to that excess cost
calculated on the basis of those of the assumptions in
the Agreed Actuarial basis as are relevant thereto.
3. Purchaser's Scheme
(A) Before the Membership Transfer Date, the Purchaser will
provide to the Seller particulars of a proposed
retirement benefits scheme or schemes which the Purchaser
intends to be the Purchaser's Scheme for the purposes of
this schedule. That scheme or schemes will be, or will
108
be designed so as to be capable of being, Exempt Approved
and, at the Purchaser's option, may be either
contracted-out or contracted-in.
(B) The Purchaser will use its best endeavours to procure
that the Purchaser's Scheme in respect of which the
relevant Consenting Members have accepted the offer of
membership provides, subject to the Transfer Amount (or,
if more than one scheme constitutes the Purchaser's
Scheme, the relevant part of it) having been received,
the following benefits in respect of the pensionable
employment of each Consenting Member in the Seller's
Scheme before the Membership Transfer Date: benefits
which are, as at the Membership Transfer Date, for the
Consenting Member overall not less valuable than those
which apply under the Seller's Scheme in relation to that
employment on the Agreed Actuarial Basis.
This paragraph does not limit the ability to exercise
powers of amendment of the Purchaser's Scheme (which, for
the avoidance of doubt, need not be the same as those
under the Seller's Scheme) at any time after the
obligations of the Purchaser under this paragraph have
been fulfilled.
4. Inland Revenue
(A) The Seller will promptly provide, and will procure that
the Seller's Scheme will promptly provide, to the
Purchaser's Scheme the certificates and information which
may reasonably be required by the Purchaser's Scheme
pursuant to any undertakings given by the Purchaser's
Scheme to the Inland Revenue in relation to transfer
payments or pursuant to requirements and any information
which the Purchaser may reasonably require to enable the
Purchaser to obtain the Inland Revenue's approval to a
transfer of assets to the Purchaser's Scheme in respect
of the Consenting Members.
(B) Paragraph (c) of the definition of Payment Date will not
apply if:
(i) the Seller does not provide the information referred
to in (A) above for the application to the Inland
Revenue within 1 month of it being required by the
Purchaser; or
(ii) the Inland Revenue will not approve the transfer of
assets due to some matter relating to the Seller's
Scheme.
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5. Transfer amount
The Seller's Actuary must calculate the Transfer Amount as
follows:
(1) The unadjusted Transfer Amount is calculated as at the
Membership Transfer Date as the value on the Agreed
Actuarial Basis of the liabilities of the Seller's Scheme
in respect of the Consenting Members pensionable service
up to the Membership Transfer Date.
(2) The unadjusted Transfer Amount is increased or decreased
by the Investment Adjustment over the period the first
day of which is the Membership Transfer Date and the last
day of which is the Payment Date.
In calculating the Transfer Amount:
(a) "pensionable service" includes any period credited
as pensionable in the Seller's Scheme.
(b) Additional voluntary contributions paid by the
Company Employees to the Seller's Scheme, in respect
of which they are not entitled to benefits based on
their earnings, are disregarded.
6. Calculation and agreement of transfer amount
(A) The Seller will procure that the Seller's Actuary:
(1) notifies the Purchaser or the Purchaser's Actuary
before the Membership Transfer Date which data in
the possession or control of the Purchaser he
reasonably requires in relation to the calculation
of the Transfer Amount; and
(2) notifies the Purchaser's Actuary within 28 days of
receipt of that data of any questions he reasonably
has on that data; and
(3) within 42 days after the later of (a) the date on
which the Seller's Actuary has received the data
requested as mentioned in (1) above and (b) the date
on which the questions (if any) which the Seller's
Actuary has raised on that data as mentioned in (2)
above have been answered, calculates the Transfer
Amount (excluding the actual amount of the
Investment Adjustment and interest but including
particulars showing the precise manner of the
adjustment to be made on account of the Investment
Adjustment and interest) and submits the calculation
and those particulars to the Purchaser's Actuary for
agreement.
110
(B) The Purchaser will procure the data referred to (A)(1)
above is supplied to the Seller and that, within 42 days
after the Seller's Actuary has (1) submitted to the
Purchaser's Actuary the calculation and particulars
referred to in (A) above and (2) provided any data
relevant to it which the Purchaser's Actuary may
reasonably request within 28 days of receipt of the
calculation and particulars and (3) answered any
questions which the Purchaser's Actuary raises on that
data within 28 days of receipt of that data, the
Purchaser's Actuary will check the calculation and
particulars and communicate his findings to the Seller's
Actuary and, if the calculation and particulars are
correct and in accordance with the terms of this
Schedule, notify the Seller's Actuary of his agreement.
(C) The Seller will procure that:
(1) the Seller's Actuary is provided promptly with all
data relevant to the calculation of the Transfer
Amount which is under the Seller's control (or that
of the Seller's Scheme);
(2) any data requested by the Purchaser's Actuary as
mentioned above which is in the Seller's control (or
that of the Seller's Scheme) is supplied within
28 days of the request being made and likewise any
question on that data which is raised by the
Purchaser's Actuary within 28 days of receipt is
answered within 28 days of the question being so
raised;
(3) any data or information provided by the Seller or
the Seller's Scheme to the Seller's Actuary will be
accurate and complete.
(D) References in this paragraph to requests, notifications,
questions and communications mean ones made or raised in
writing.
7. On account transfer
The Seller will procure that, within 4 weeks after the
later of (a) receipt of names of the Consenting Members
and (b) the Membership Transfer Date:
(i) the Seller's Actuary will estimate the Transfer
Amount and notify that estimate to the Purchaser's
Actuary; and
(ii) the Seller's Scheme will pay to the Purchaser's
Scheme as a payment on account of the Transfer
Amount, an amount (as mentioned in paragraph 8(D))
equal in value to two-thirds of that estimate.
111
The payment is only a payment on account of the Transfer
Amount and is without prejudice to the Purchaser's rights
under paragraph 8. After a payment on account is so
made, paragraphs 5 and 8 are modified as follows:
(i) The Investment Adjustment is calculated as if the
Payment Date is the date of the payment on account
and the amount by which the payment on account falls
short of or exceeds the Transfer Amount is
calculated as at the date of the payment on account
(such amounts being referred to as the "shortfall"
and "excess" respectively).
(ii) If there is a shortfall, the amount to be paid on
the Payment Date pursuant to paragraph 8(A) is the
shortfall increased or decreased by the Investment
Adjustment over the period the first day of which is
the date of the payment on account and the last day
of which is the Payment Date and paragraph 8(B) is
read accordingly.
(iii) If there is an excess, the Purchaser will use
its best endeavours to procure that the Purchaser's
Scheme will pay to the Seller's Scheme, on the
Payment Date under paragraph 8(A), the excess
increased or decreased by the Investment Adjustment
over the period the first day of which is the date
of the payment on account and the last day of which
is the Payment Date.
8. Transfer of transfer amount
(A) The Seller will use its best endeavours to procure that
the Seller's Scheme will transfer to the Purchaser's
Scheme on the Payment Date the Transfer Amount and any
sums, policies or other assets which comprise additional
voluntary contributions paid to the Seller's Scheme by
the Consenting Members and the investment return on them.
(B) If the Transfer Amount and the items referred to in (A)
above in relation to additional voluntary contributions
are not transferred to the Purchaser's Scheme in full on
or before the Payment Date, the Seller will:
(i) continue to use its best endeavours to procure that
those transfers are made in full (but without
limiting the Seller's obligations under (ii) below);
and
112
(ii) forthwith following a written demand from the
Purchaser pay to the Purchaser (or as it may
direct), by way of an adjustment of the
consideration for the Shares, in cash an amount
equal to the value not transferred (the
"Shortfall");
and references in paragraph 5 to the Payment Date are
then read as references to the actual date of payment to
the Purchaser's Scheme or the Purchaser pursuant to (i)
or (ii) above.
Neither a written demand from the Purchaser under (ii)
above nor a payment by the Seller pursuant to such a
demand will release the Seller from its obligations under
(i) above until the Purchaser's Scheme has received
payments in respect of the Consenting Members which are
equal in aggregate value to the Transfer Amount and the
items referred to in (A) above in relation to additional
voluntary contributions.
(C) If the Seller pays the Shortfall to the Purchaser, the
Purchaser shall procure that the Company shall contribute
the Shortfall to the Purchaser's Scheme (the
"Contribution"). To the extent that, as a result of the
payment of part (or the whole) of the Contribution, the
liability of the Company or any member of the Coca-Cola
Group to make a payment of corporation tax is reduced
(including a reduction arising as a result of the
surrender of losses which would not have been available
but for the payment of part (or the whole) of the
Contribution by way of group relief or consortium relief
in accordance with the provisions of s.402-413 Taxes Act
1988) or the Company or any member of the Coca-Cola Group
receives a repayment of corporation tax (in each case a
"Tax Benefit") then the Purchaser shall pay to the
Seller, by way of adjustment to the consideration for the
Shares, an amount equal to the Tax Benefit received,
payment to be made no later than 9 months after the end
of the accounting period of the company receiving the Tax
Benefit to which the Tax Benefit relates in the case of a
reduction of the liability to make a payment of
corporation tax or within seven days of receipt of the
Tax Benefit in the case of a repayment of tax plus
interest thereon at the Agreed Rate from the end of that
accounting period or, in the case of a repayment of tax,
from the date of the receipt of the repayment, provided
that the Purchaser shall not be obliged to make any
payment to the Seller in respect of the Tax Benefit
unless: the Company's auditors have confirmed to the
Seller and the Purchaser that the Tax Benefit does not
represent an amount which has been taken into account in
113
the Accounts to reduce any provision for corporation tax
or to increase an asset (including provisions and assets
relating to deferred tax).If the Purchaser has made
payment of the Tax Benefit under this subparagraph and
the relief in respect of the Contribution is withdrawn
pursuant to s.112 Finance Xxx 0000, including withdrawal
following a discovery by the Inland Revenue as described
in s.29 Taxes Management Xxx 0000, then the Seller shall
pay to the Purchaser, by way of adjustment to the
consideration for the Shares, an amount equal to that
proportion of the Tax Benefit as is equivalent to the
proportion of the Contribution in respect of which the
relief has been withdrawn.
(D) The Transfer Amount under paragraph 8(A) and any on
account transfer under paragraph 7 must be satisfied by a
transfer of assets from the portfolio on which the
Investment Adjustment has been based (or, if the
portfolio is insufficient, assets of a type which could
have been included in the portfolio as mentioned in the
definition of Investment Adjustment) so that each of the
on account transfer and the final transfer in respect of
the Transfer Amount shall respectively represent a
reasonable cross-section of that portfolio.
9. Disputes
Any dispute between the Seller and the Purchaser or
between the Seller's Actuary and the Purchaser's Actuary
concerning any matter relevant to this Schedule must, in
the absence of agreement between them within one month of
the party concerned having notified the other of the
disputed issue, be referred to an independent Actuary
chosen by agreement between the parties or, failing
agreement, appointed by the President for the time being
of the Institute of Actuaries at the instance of either
party. That independent Actuary will act as an expert
and not as an arbitrator and his decision will be final
and binding. His fees and those of the President will be
borne equally between the parties except that the
independent Actuary will have power to determine, at the
request of either party, that those expenses must be
borne exclusively by the other party or in the
proportions which the expert may determine and any such
determination will be final and binding.
114
10. Purchaser's protection
(A) The Seller will indemnify the Purchaser, the Company and
the Purchaser's Scheme against all liabilities, costs and
expenses in connection with any claim or threatened claim
which may be made by any of the Company Employees or any
former employee of any of the Companies (or any person
claiming through or in respect of any such Company
Employee or former employee) alleging inequality or
discrimination on grounds of sex as to the provision of,
or failure to provide, any relevant benefit as defined in
section 612, Taxes Act 1988 in respect of any period of
employment before Completion. The Purchaser will hold
the benefit of this indemnity for itself and on trust for
each of the Company and the Purchaser's Scheme.
(B) The Seller will indemnify the Purchaser and the Company
(and any Purchaser's Associate participating in the
Seller's Scheme) against any liability to make any
payment to or in connection with the Seller's Scheme or
any other occupational pension scheme in which the
Company has at any time participated, other than to pay
contributions to the Seller's Scheme as stated in
paragraph 2(C). This indemnity includes any payment
pursuant any statutory obligation (whether or not in
force at the date of this agreement). The Purchaser
holds the benefit of this indemnity for itself and as
trustee for the Company and any Purchaser's Associate.
11. Other pensions
The Purchaser will procure that the Company will continue
to make payments to former employees of Schweppes Limited
as referred to in a Cadbury Schweppes UK Pensions
Department Memorandum dated 17 June, 1996 a copy of
which has been provided to the Purchaser.
List of Appendices to
Schedule 6
Appendix A - Option form regarding Transfer of Benefits
from the Cadbury Schweppes Pension Fund
to the Coca-Cola Enterprises Pension
Scheme
Appendix B - Agreed Accrual Basis referred to in
Schedule 6 (Sale Agreement relating
to Amalgamated Beverages Great Britain
Limited), along with demographic
assumptions
The appendices described above have been omitted from this filing
but will be furnished supplementally to the Commission upon request.
115
SCHEDULE 7
Part 1
CCSB EMPLOYEES
Name of Employee Car (registration number and make)
--------------------- -----------------------------
1. Xxxxx Xxxxxxxxxx X000XXX Vauxhall Calibra 2.0
2. Xxxxx Xxxxxx N933FNO Vauxhall Calibra 2.5
3. Xxxxxx Xxxx L928SKV VW Golf 2.0
4. Xxxx Xxxxxxx N570ENO Vauxhall Vectra 2.0
5. Xxx Xxxxxx N186DWC Vauxhall Astra 1.8
6. Xxxxxxxxx Xxxxxxxxx M95WWC Vauxhall Cavalier 1.8
7. Xxxxx Xxxxxxxxxx L862TGP BMW 518 1.8
Part 2
Name of Car Personal Fax
Employee (registration Computer
number and make)
------------- --------------- ------------- ---------
X.X. Xxxxxxxx N157 HGS Lexus
X. Xxxxxx L73 EGM Xxxxxx Xxxxxxx Xxxxxxx
XX0000XXXX TF111
B.E. Xxxxx L1 BES BMW IBM PS12 Model Toshiba
56SX Type 8556- TF132
043
116
SCHEDULE 8
CS GROUP EMPLOYEES
Name of Employee
X.X. Xxxxxx
X. Xxxxxxx
X. Xxxxxxx
X.X. Xxxxxx
X.X. Xxxxx
X.X. Xxxxxx
PAGE
117
SCHEDULE 9
PROVISIONS RELATING TO THE WARRANTIES
1. Provisions to which this Schedule is applicable.
The provisions in this Schedule apply to each of the
Warranties.
2. Quantum
(1) The Purchaser shall not be entitled to recover from the
Sellers any damages or other amounts in respect of any
breach or breaches of the Warranties unless the amount of
damages or other amounts in respect of such breach or
breaches exceeds in aggregate the sum of Pound Sterling
8,000,000 (in which event the Sellers shall only be
liable in respect of the excess above that sum).
(2) There shall be disregarded for all and any purposes in
relation to the Warranties all and any breach or breaches
of the Warranties in respect of which the amount of
damages or other amounts to which the Purchaser would
otherwise be entitled is less than Pound Sterling 66,000.
(3) The maximum aggregate liability of the Sellers in respect
of all and any Warranty Claims shall not exceed Pound
Sterling 80,000,000.
(4) Where and to the extent that both Sellers shall be liable
in respect of any breach of any of the Warranties such
liability shall be shared in the following proportions:
Seller Proportionate Liability
Cadbury Schweppes 51%
Coca-Cola UK 49%
(5) Cadbury Schweppes alone (and not Coca-Cola UK) shall be
liable in respect of any breach of the Warranties
contained in paragraph F3 of Schedule 5 (other than F3(3)
and F3(9)). To the extent that only one Seller is liable
in respect of a breach of a Warranty then the liability
of that Seller in respect of that breach shall be 100 per
cent. of the relevant claim.
(6) If there is a breach of a Knowledge Warranty then:
(a) if Cadbury Schweppes may be liable by reference to
its knowledge but Coca-Cola UK is not liable by
reference to its knowledge (in each case, for the
avoidance of doubt, knowledge being determined by
reference to the provisions of clause 1(3) of this
agreement or, in the case of the Warranties set out
in Part E of Schedule 5, by reference to the
PAGE
118
provisions of paragraph E.1 of Schedule 5) then
Coca-Cola UK shall not be liable or deemed to be
liable but the liability of Cadbury Schweppes in
respect of that breach shall be 100 per cent. of the
relevant claim; or
(b) if Coca-Cola UK may be liable by reference to its
knowledge but Cadbury Schweppes is not liable by
reference to its knowledge (in each case, for the
avoidance of doubt, knowledge being determined by
reference to the provisions of clause 1(3) of this
agreement or, in the case of the Warranties set out
in Part E of Schedule 5, by reference to the
provisions of paragraph E.1 of Schedule 5) then
Cadbury Schweppes shall not be liable or deemed to
be liable but the liability of Coca-Cola in respect
of that breach shall be 100 per cent. of the
relevant claim.
(7) No Warranty Claims shall be made against one Seller
without being made against the other (to the extent
available) and, to the extent that liability is found to
exist, enforced against the other Seller (if being
enforced against the first Seller).
(8) In this schedule:
(a) "damages" includes all losses, charges, costs or
expenses;
(b) for the purpose of calculating damages, the
repayment or assumption of any indebtedness of any
of the Companies to a Seller at or immediately prior
to Completion shall be deemed to be consideration
paid by the Purchaser to that Seller for the Shares;
and
(c) damages in respect of a single act, circumstance or
omission, or series of related acts, circumstances
or omissions which result in a breach or breaches of
the same Warranty shall be aggregated for the
purposes of paragraphs 2(1) and 2(2) of this
Schedule.
3. Time limits
The liability of the Sellers in respect of the Warranties
shall terminate:
(a) on the seventh anniversary of Completion in respect
of those matters set out in Part D (Taxation) of
Schedule 5;
(b) on the date which is 3 years and 6 months after the
date of Completion in respect of those matters set
PAGE
119
out in paragraphs A.8 and C.2 of Schedule 5; and
(c) on 31st July, 1997 in respect of all other matters
contained in Schedule 5,
except in respect of any claim of which notice in writing
is given to the Sellers before that date in accordance
with paragraph 4 of this Schedule, provided that the
liability of the Sellers shall absolutely terminate (if
such claim has not been previously satisfied, settled or
withdrawn or unless in the case of a claim against either
of the Sellers that particular Seller agrees) if legal
proceedings in respect of such a claim have not been
commenced within 8 months of the service of the relevant
notice.
4. Notice of claims
The Purchaser shall give to each of the Sellers notice of
each claim in respect of any breach of the Warranties
specifying in reasonable detail, based on the information
then available to it, the matter which gives rise to the
breach or claim, the nature of the breach or claim and,
to the extent possible at the time of the notification,
the amount claimed in respect of that claim (detailing to
the extent then possible the Purchaser's calculation of
the loss alleged to have been suffered by it or the
relevant Company as a result of the alleged breach),
provided that the ability of the Purchaser to provide
further detail and to amend its calculation shall not be
prejudiced by the original notice.
5. Limitations on liability
(1) Subject to subparagraph (4), the Sellers shall not be
liable in respect of any Warranty Claim:
(a) to the extent that the claim arises directly or
indirectly as a result of any act or omission of the
Purchaser, any persons deriving title from the
Purchaser, or any of the Companies after Completion
(other than an act or omission required by law or
regulations or by any regulatory or taxation
authority, by any court or to the extent consented
to by the Sellers in writing after Completion), if
the Purchaser (or such person so deriving title)
knew or ought reasonably to have known that such act
or omission would give rise to a Warranty Claim; or
(b) to the extent that the claim arises directly or
indirectly as a result of any act or omission
carried out at the request of the Purchaser before
Completion, if the Purchaser knew or ought
reasonably to have known that such act or omission
would give rise to a Warranty Claim; or
PAGE
120
(c) to the extent that liability in respect of a claim
occurs or is increased as a result of any
legislation not in force at the date of this
agreement and which takes effect retrospectively
("New Law") but for the avoidance of doubt where
such a claim is brought under New Law which could
have been brought under Environmental Law which is
not New Law, then this limitation will not apply to
the extent that a liability could have arisen under
such Environmental Law that is not New Law.
(2) (a) The limitations set out in paragraphs 2 and 3
of this Schedule shall not apply in respect of the
statements set out in paragraph A.2 of Schedule 5.
(b) The limitations set out in subparagraphs 2(1)
and 2(3) shall not apply in relation to a Seller if
and to the extent that that Seller's liability for a
breach of Warranty arises from its fraud. This
subparagraph 5(2) shall not apply unless an English
court declares that the relevant Seller was at the
date of this agreement knowingly guilty of fraud in
relation to the matter in respect of which there is
found to be a breach of Warranty and the declaration
by such court is final, binding and has not been
appealed by such Seller within 3 months of the
declaration by the court or has ceased to be capable
of appeal.
(3) Where liability in respect of a breach of a Warranty
arises and an English court has declared that a Seller
was at the date of this agreement intentionally guilty of
fraud in relation to the matter giving rise to that
liability and the declaration by that court is final,
binding and has not been appealed by such Seller within 3
months of the declaration by the court or has ceased to
be capable of appeal, that Seller shall be liable for the
whole of such liability and the other Seller shall not be
liable in respect of such breach.
(4) The provisions of subparagraph (1) shall not apply to any
Warranty Claim in respect of those matters set out in
Part D (Taxation) of Schedule 5 and any other matters so
far as they relate to Taxation and the Sellers shall not
be liable in respect of any Warranty Claim in respect of
those matters:
(a) to the extent that provision or reserve for the
matter or liability to which the Warranty Claim
relates is made in the Accounts;
(b) to the extent that it arises as a result of
transactions in the ordinary course of the normal
business of the Companies between the Accounts Date
PAGE
121
and Completion and which is not:
(i) interest or a penalty, surcharge or fine in
connection with the Taxation; or
(ii) interest or a penalty, surcharge or fine
arising as a result of a claim to carry back
advance corporation tax under section 239(3)
Taxes Xxx 0000;
(c) to the extent that it arises or is increased as a
result only of any increase in rates of Taxation or
any change in law or practice or any withdrawal of
any extra-statutory concession by a tax authority or
any change in accountancy practice or principles,
being an increase, withdrawal or change made, in any
such case, after Completion with retrospective
effect;
(d) which would not have arisen but for a voluntary act
or omission of the Purchaser or the Companies after
Completion. For this purpose "voluntary act or
omission" does not include:
(i) one carried out or effected under a legally
binding commitment created on or before
Completion other than one created by the
Licensing Agreements; or
(ii) one which is not in the ordinary course of the
normal business of the relevant company carried
on at Completion and which the Purchaser was
not aware would give rise to the Taxation in
question;
(e) to the extent it arises by reason of a voluntary
disclaimer by any of the Companies after Completion
of the whole or part of any allowance to which any
of them is entitled under Part II of the Companies
Xxxxxxxxxx Xxx 0000 the claiming of which was taken
into account in computing the provision or reserve
for Taxation in the Accounts;
(f) to the extent it arises as a result of any changes
after Completion in the bases, methods or policies
of accounting of any of the Companies;
(g) to the extent that any profits to which it is
attributable were actually earned or received by or
actually accrued to any of the Companies so as to be
retained by them but were not (in either such case)
reflected in the Accounts;
(h) to the extent it arises or is increased as a
consequence of any failure otherwise than at the
PAGE
122
request of the Sellers or either of them by the
Purchaser and/or any of the Companies to comply with
any of their respective obligations under clauses 6
(Tax Sharing Agreement), 7 (Reimbursement from third
parties), 8 (Conduct of Tax Claim), 10 (Tax
Computations and Returns), 11 (Mitigation) or 14
(VAT) of the Tax Deed; or
(i) to the extent that recovery has been made in respect
of the same claim under the Tax Deed.
6. No double recovery
If either Seller discharges a liability for a breach of a
Warranty and the Purchaser receives from a third party
any sum in respect of the matter or circumstances giving
rise to that breach, which has the effect of compensating
the Purchaser twice for that matter or circumstance
(receipt by a Company being deemed to be receipt by the
Purchaser for this purpose), the Purchaser shall, or
shall procure that the relevant Company shall reimburse
to the Seller who has discharged the liability an amount
equal to the lesser of (i) the amount of the receipt less
any reasonable costs expended by the Purchaser or the
Company in obtaining the receipt and Taxation payable in
respect of such receipt; and (ii) the amount of the
liability discharged, provided that if more than one
Seller discharges the liability concerned, the Purchaser
shall reimburse each of them pro rata to the amounts they
respectively paid to discharge the liability in question.
For the avoidance of doubt, the Purchaser shall not be
entitled to recover damages more than once in respect of
the same loss.
7. Contingent liabilities
If any breach of the Warranties arises by reason of some
liability of any Company which, at the time such a breach
is notified to each of the Sellers, is contingent only or
otherwise not capable of being quantified, then the
Sellers shall not be under any obligation to make any
payment in respect of that breach to the extent that the
liability is contingent or otherwise not capable of being
quantified, unless and until the liability ceases to be
contingent or becomes capable of being quantified, as the
case may be. In such circumstances, the proviso to
paragraph 3 of this Schedule shall be amended in relation
to that claim so as to require that legal proceedings be
commenced within 8 months from the date on which the
liability ceases to be contingent or becomes capable of
being quantified, as the case may be.
8. Third Parties and Insurance
If a Company has a right to claim:
PAGE
123
(a) against any third party; or
(b) under a policy of insurance maintained by it,
in respect of a matter which gives rise to a Warranty
Claim, the Purchaser shall procure that the relevant
Company makes a claim against that third party or under
that insurance policy (as the case may be) in respect of
that matter (in each case, a "third party claim") and
uses its reasonable endeavours to pursue the third party
claim (unless so doing would (a) result in material
expense to the Company or the Purchaser, or (b) in the
reasonable opinion of the Purchaser, result in any damage
to the business of any of the Companies or of the
Purchaser or of Coca-Cola Enterprises). The Purchaser
shall not require actual payment of damages from the
Sellers for the relevant Warranty Claim unless and to the
extent that the Purchaser believes, acting in good faith,
that the full amount of the loss resulting from the
Warranty Claim will not be recovered under the third
party claim. The obligations of the Purchaser under this
paragraph shall be without prejudice to the Purchaser's
right to make and pursue a Warranty Claim against the
Sellers, and it shall be entitled to do so before or
after it procures the Company to make a third party
claim, and it will be entitled to add the reasonable cost
of pursuing the third party claim to damages under the
Warranty Claim. The Purchaser shall keep the Sellers
informed on a regular basis of the progress of any third
party claim and shall regularly consult with the Sellers
in relation to the conduct of any third party claim. The
Purchaser shall not agree to settle any third party claim
unless, in the case of a matter giving rise to a third
party claim in relation to which only one Seller would be
liable, the Seller who would be liable shall have given
its prior written consent (such consent not to be
unreasonably withheld or delayed) or, in the case of a
matter giving rise to a third party claim in relation to
which both Sellers would be liable, both Sellers shall
have given their prior written consent (such consent not
to be unreasonably withheld or delayed).
9. Purchaser's confirmation
(1) The Purchaser confirms in good faith to each of the
Sellers that on the basis of the analysis conducted on
behalf of the Purchaser and Coca-Cola Enterprises to
date of the information which has been provided to it or
Coca-Cola Enterprises or their respective agents or to
the Purchaser's Solicitors by or on behalf of the Sellers
or by Cadbury Schweppes' Solicitors or Coca-Cola's
Solicitors:
(a) it has no current plans to give notice of a claim
under the Warranties; and
PAGE
124
(b) as far as it or Coca-Cola Enterprises is aware (and,
for this purpose only, disregarding the provisions
of paragraphs 2(1) and 2(2) of this Schedule) the
Purchaser will not have a right to make a claim on
or after Completion,
but, subject to paragraph 9(2), the giving of such
confirmation shall not prejudice in any way the rights of
the Purchaser to make any claim in the future nor shall
it prejudice any quantum of damages to which the
Purchaser may be entitled.
(2) The Purchaser shall not be entitled to make a claim for
breach of a Warranty if it or Coca-Cola Enterprises was
aware on the basis of the analysis of information
referred to in paragraph (1) at the date of this
agreement of that breach of that Warranty.
10. Reduction in consideration
Any payment made by either of the Sellers in respect of a
Warranty Claim shall (as far as possible) be deemed to be
a reduction in the purchase price payable to that Seller
under clause 3 of this agreement.
11. Arrangements between the Sellers
(1) Each Seller shall inform the other Seller of any claim
made against that Seller in respect of any alleged breach
of the Warranties and the Sellers shall consult and co-
operate with each other in good faith in relation to any
such claim. In particular, each Seller shall provide the
other Seller with any documents or information in its
possession or to which it has access that the other
Seller shall reasonably request for the purpose of
defending or otherwise dealing with any potential or
actual claim against that Seller under this agreement.
Where a Seller receives pursuant to this paragraph 11
documents or information which are confidential to the
other Seller, such Seller shall only use or disclose such
document or information for the purpose for which it has
been disclosed or made available and shall to the extent
practicable take all reasonable measures to maintain the
confidentiality thereof.
(2) Without prejudice to the rights of the Purchaser against
either of the Sellers, the Sellers agree that as between
themselves the benefits of the threshold and cap on
aggregate liability contained in paragraph 2(1) and 2(3)
of this Schedule shall be shared between them in
proportions of 51 per cent. to Cadbury Schweppes and 49
per cent. to Coca-Cola UK. Accordingly, where as a
consequence of one or both Sellers being liable for 100
per cent. of any liability, one Seller (the "Advantaged
Seller") has received more than its respective proportion
PAGE
125
of such benefit and, as a consequence thereof, the other
Seller (the "Disadvantaged Seller") has received less
than its respective proportion of such benefit, the
Advantaged Seller shall reimburse the Disadvantaged
Seller the lesser of:
(a) the amount by which the Disadvantaged Seller is or
has been liable in excess of the amount for which
the Disadvantaged Seller would have been liable had
it received its respective proportion of such
benefit; and
(b) the amount by which the liability of the Advantaged
Seller has been reduced below the amount by which
the Advantaged Seller would have been liable had it
received only its respective proportion of such
benefit.
12. Warranties A.5, A.8 and C.2
If the Purchaser shall be entitled to make a claim for a
breach of Warranty under paragraph A.8 or to make a claim
for a breach of Warranty under paragraph C.2 of Schedule
5, it shall make that claim only under paragraph A.8 or
C.2 as appropriate and, in particular, it shall not be
entitled to claim under paragraph A.5 of Schedule 5 in
respect of the matter giving rise to the claim under
paragraphs A.8 or C.2 of Schedule 5.
13. Obligation to mitigate
Nothing in this agreement shall in any way restrict or
limit the general obligation at law of the Purchaser to
mitigate any loss or damage which it may suffer in
consequence of any matter giving rise to a claim for
breach of any of the Warranties.
PAGE
126
SCHEDULE 10
Section 1
List of documents to be signed by the parties
Part 1
Coca-Cola Enterprises and/or the Purchaser
1. Disclosure Letter
2. Tax Deed
3. Notes
4. Note Instrument
5. Side Letter relating to the Notes
Part 2
Cadbury Schweppes' Group
1. Disclosure Letter
2. Tax Deed
3. Licensing Agreements
4. Termination Agreements
5. Agreement for Lease
6. Maintenance Agreement
7. Water Supply Agreement
8. Colwall Licence Letter
9. Property Management Agreement
10. Bournville Licence
11. Transfers
12. Title Deeds Undertaking
13. Insurance Services Agreement
14. Letter re. Sodastream Premises at
Peterborough
15. Side Letter relating to the Notes
16. Durham Side Letter
Part 3
Coca-Cola Group
1. Disclosure Letter
2. Tax Deed
3. Bottler's Agreement
4. Termination Agreements
PAGE
127
Part 4
CCSB
1. Termination Agreements
2. Agreement for Lease
3. Maintenance Agreement
4. Water Supply Agreement
5. Colwall Licence Letter
6. Property Management Agreement
7. Bournville Licence
8. Licensing Agreements
9. Bottler's Agreement
10. Transfers
11. Insurance Services Agreement
12. Letter re. Sodastream Premises at
Peterborough
13. Tax Deed
Section 2
Other Documents
1. Brand Letter Agreement
2. Goals and Guiding Principles Agreement
3. Actuary's Letter
4. Waiver letter in relation to dividend between Cadbury
Schweppes and Coca-Cola UK, copied to Coca-Cola
Enterprises, dated 8th August, 1996.
PAGE
128
SCHEDULE 11
CONDUCT OF PROCEEDS APPORTIONMENT APPEAL
1. The provisions of clauses 8 and 10, other than subclause
10(7), (conduct of tax claims and tax affairs) of the Tax
Deed shall not apply to the conduct of the Proceeds
Apportionment Appeal.
2. Subject to paragraphs 3, 5 and 6 below, the Purchaser
shall have the conduct of:
(a) the Proceeds Apportionment Appeal; and
(b) any and all matters relating to the Proceeds
Apportionment Appeal (including any settlement of
all or part of it).
3. Subject to paragraph 6 below, the Sellers and the
Purchaser shall pay the Costs of the Appeal or, if CCSB
pays any Costs of the Appeal, reimburse CCSB on demand
for those costs in the 1990 Percentages applying at the
time the liability for the Costs of the Appeal in
question was incurred.
4. The Purchaser shall and shall procure that CCSB and all
other Companies shall forward to the Sellers (by fax if
practicable) any correspondence, notice or other document
received from any person (other than the Sellers)
relating to the Proceeds Apportionment Appeal and shall
inform the Sellers of the contents of such
correspondence, notice or document as soon as
practicable;
5. The Purchaser shall procure that the Sellers are kept
informed of the progress of the Proceeds Apportionment
Appeal and shall procure that, so far as practicable, the
Sellers are involved in the arrangements for, and
participate in the drafting of any documents prepared in
connection with any visit, conference, consultation,
meeting or hearing relating to the Proceeds Apportionment
Appeal.
6. If, at any time before the Proceeds Apportionment Appeal
is Finally Determined, any of the Sellers or the
Purchaser (the "Withdrawing Party") notifies the others
(each a "Remaining Party") in writing that it no longer
wishes to pursue the Proceeds Apportionment Appeal (in
whole or in part):
(a) each Remaining Party shall notify the Purchaser and
CCSB in writing whether that Remaining Party wishes
to continue with the Proceeds Apportionment Appeal;
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129
(b) if the Purchaser is the Withdrawing Party and one of
the Sellers notifies the Purchaser and CCSB that it
will continue with the Proceeds Apportionment Appeal
the Purchaser shall, at the Remaining Parties'
expense, make such arrangements for the provision to
the Remaining Parties of all information and
documents in the possession of the Purchaser and its
professional advisers relating to the Proceeds
Apportionment Appeal as the Remaining Parties shall
reasonably request; or
(c) if pursuant to paragraph (a) above, each Remaining
Party notifies the Purchaser and CCSB that it will
not continue with the Proceeds Apportionment Appeal
then the Purchaser, on behalf of CCSB, shall
formally notify the Inland Revenue (and any relevant
court or tribunal) in writing that the Proceeds
Apportionment Appeal is withdrawn.
7. As soon as reasonably practicable after the Proceeds
Apportionment Appeal has been Finally Determined, the
auditors for the time being of CCSB shall certify the
amount (if any) by which the corporation tax payable by
CCSB in respect of the accounting period treated as
ending on 31st December, 1990 (before taking any account
of the set-off of advance corporation tax) as a result of
the Proceeds Apportionment Appeal being Finally
Determined, calculated in all other respects in the same
way as the corporation tax provision of Pound Sterling
12,075,000 made in the Accounts in respect of corporation
tax for the accounting period treated as ending on 31st
December, 1990, has been reduced below Pound Sterling
12,075,000. For the avoidance of doubt, the auditors
shall not take into account the decision of any tribunal
or court allowing the deduction of a provision made under
SSAP 24. The amount of the reduction shall be allocated
among the Sellers and the Purchaser in accordance with
the 1990 Percentages then applying and the Purchaser
shall pay to each Seller the amount (if any) so allocated
to it two Business Days after repayment of corporation
tax is received from the Inland Revenue in consequence of
the Proceeds Apportionment Appeal being Finally
Determined or, if later, after an adjusting payment is
made by Cadbury Schweppes under the provisions of the Tax
Sharing Agreement to repay any amount due in consequence
of the Proceeds Apportionment Appeal being Finally
Determined.
8. In this Schedule:
(1) "Costs of the Appeal" means any:
(i) legal and accountancy fees;
(ii) fees or costs of expert witnesses or other experts;
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(iii) fees of any court or other tribunal;
(iv) costs awarded to the Inland Revenue,
in each case relating to the conduct of the Proceeds
Apportionment Appeal incurred on or after Completion,
excluding any VAT;
(2) "Finally Determined" means the date on which:
(i) the time limit for an appeal against the decision of
any tribunal or court relating to the Proceeds
Apportionment Appeal expires without an appeal
against that decision having been made; or
(ii) if there is no appeal procedure available from the
decision of the court in the Proceeds Apportionment
Appeal, the decision is made; or
(iii) any formal agreement is signed between CCSB (or
any party having the conduct of the Proceeds
Apportionment Appeal on behalf of CCSB in accordance
with the provisions of this deed) and the Inland
Revenue settling the Proceeds Apportionment Appeal;
(3) "Proceeds Apportionment Appeal" means the Tax Claim which
is the estimated corporation tax assessment dated 15th
July, 1991 for the accounting period ended on 31st
December, 1990 so far as it relates to the apportionment
of sale proceeds of the factories at Fareham, Hants and
Hansons Bridge Road, Birmingham;
(4) "Purchaser's Group" means the Purchaser, its
subsidiaries, holding companies and subsidiaries of such
holding companies;
(5) "Remaining Party" has the meaning given by paragraph 6;
(6) "Withdrawing Party" has the meaning given by paragraph 6;
(7) "1990 Percentages" means in the case of Cadbury
Schweppes, 25.5 per cent. in the case of Coca-Cola UK
24.5 per cent and in the case of the Purchaser 50 per
cent, or where any of those parties has become a
Withdrawing Party, the percentages agreed between the
Remaining Parties (or pro rata to their original
percentages in the absence of agreement) or 100 per cent.
if there is only one Remaining Party.
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131
Signed by ) S/ XXXXX X. XXXXXXX
for and on behalf of ) -------------------------------
CADBURY SCHWEPPES )
PUBLIC LIMITED COMPANY )
Signed by ) S/ XXX X. XXXXXX
for and on behalf of ) -------------------------------
COCA-COLA HOLDINGS )
(UNITED KINGDOM) LIMITED )
Signed by ) S/ XXX X. XXXXXX
for and on behalf of ) -------------------------------
THE COCA-COLA COMPANY )
Signed by ) S/ XXXXX X. XXXXXXXXX
for and on behalf of ) -------------------------------
COCA-COLA ENTERPRISES INC.)
Signed by ) S/ SUMMERFIELD X. XXXXXXXX, XX.
) -------------------------------
for and on behalf of )
BOTTLING )
HOLDINGS (GREAT BRITAIN) )
LIMITED )
PAGE
