EXHIBIT
2.2
DATED
13 JANUARY, 2016 |
(1) XXXXXX
XXXXXX XXXXXXXX AND OTHERS
(2) ULTRALIFE
UK LIMITED |
SHARE
PURCHASE AGREEMENT
relating
to
ACCUTRONICS
LIMITED |
| 1. Definitions
and interpretation |
1 |
| 2. Sale
and purchase of the Shares |
10 |
| 3. Consideration |
11 |
| 4. Adjustment
of Consideration |
11 |
| 5. Completion |
11 |
| 6. Warranties
and indemnities |
12 |
| 7. Tax |
13 |
| 8. Restrictions
on the WARRANTORS |
13 |
| 9. Further
undertakings and obligations of the Sellers |
14 |
| 10. Confidential
Information |
16 |
| 11. Announcements |
16 |
| 12. Assignment
and successors in title |
16 |
| 13. Third
party rights |
17 |
| 14. The
Sellers' Representative |
17 |
| 15. Notices |
17 |
| 16. General |
17 |
| 17. Governing
law |
18 |
| schedule 1
- Sellers |
20 |
| schedule 2
- The Company |
21 |
| schedule 3
- Completion |
23 |
| schedule 4
- General Warranties |
25 |
| schedule 5
- Limitations on Sellers' liability |
52 |
| schedule 6
- Taxation |
55 |
| Part 1–
Definitions and interpretation |
55 |
| Part 2
– Tax Covenant |
58 |
| Part 3
– Tax Warranties |
65 |
| schedule 7
- Property |
73 |
| Part 1
– Leasehold |
73 |
| Part 2
– The Property Warranties |
74 |
| schedule 8
- Company Intellectual Property |
77 |
| Part 1
– Registered IPR |
77 |
| Part 2
– Unregistered Company Intellectual Property |
78 |
| Part 3
– Intellectual Property Agreements |
78 |
| Part 4
– Domain names |
79 |
| schedule 9
- Completion Accounts |
81 |
| Part 1
– Preparation and procedure |
81 |
| Part 2
– Specific accounting policies and procedures for the Completion Accounts |
82 |
| Part 3
– Pro-Forma Working Capital Statement |
83 |
| Part 4
– Pro-Forma Net Indebtedness Statement |
83 |
| Part 5
– Permitted Payments |
84 |
DATE
13 January , 2016
PARTIES
| (1) | THE
PERSONS whose names and addresses are set out in schedule 1 (the Sellers);
and |
| (2) | ULTRALIFE
UK LIMITED, a company incorporated and registered in England and Wales (company number
9907168), whose registered office is at Xxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx X0 0XX
(the Buyer). |
IT
IS AGREED
| 1. | Definitions
and interpretation |
| 1.1 | In
this Agreement the following definitions will apply: |
Accounting
Practice
the
practice of preparing accounts in compliance with all applicable laws and accounting conventions, principles and practices generally
accepted in the United Kingdom as at the date of this Agreement required to be used in the preparation of accounts which are intended
to show a true and fair view as required by the Act but restricting the accounting treatment to United Kingdom accounting standards
as specified in Financial Reporting Standards, Statements of Standard Accounting Practice and Abstracts of Recommended Practice
issued by the Urgent Issues Task Force;
Accounts
the
audited financial statements of the Company for the period ended on the Accounts Date, comprising the audited balance sheet and
audited profit and loss account together with the notes and cashflow statement relating to them and the directors' and auditors'
reports on them;
Accounts
Date
31
August 2015;
Accounts
Treatment
the
accounting policies, principles, practices, procedures, judgments, categorisations, estimations and techniques used by the Company
in the preparation of the Accounts;
Act
the
Companies Xxx 0000;
Agreed
Form
any
document in a form agreed between the Parties and, for the purpose of identification only, signed or initialled by or on behalf
of each of them;
Agreement
the
Share Purchase Agreement related to Accutronics Limited between the Parties dated as of the Effective Date
Auditors
Dains
LLP of 00 Xxxxxxx Xxx, Xxxxxxxxxx X0 0XX;
Business
Day
any
day (other than a Saturday, Sunday or public holiday) during which banks in London are open for normal business;
Buyer's
Accountants
RSM,
St. Phillip’s Point, Xxxxxx Xxx, Xxxxxxxxxx, Xxxx Xxxxxxxx X0 0XX;
Buyer's
Solicitors
Xxxxxxx
Plc of Xxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx X0 0XX;
Cash
the
amount in pounds sterling which is the aggregate of the following:
| (a) | to
the extent only that any of the same are immediately available for withdrawal or otherwise
immediately available to the Company, all deposits of the Company with any bank as at
close of business on the Completion Accounts Date but excluding any and all cash held
in bank accounts located otherwise than in the United Kingdom; |
| (b) | to
the extent only that any of the same are immediately available for withdrawal or otherwise
immediately available to the Company, cleared cash balances, liquid funds and other equivalents
of the Company with any bank or financial institution as at close of business on the
Completion Accounts Date but excluding any and all cash held in bank accounts located
otherwise than in the United Kingdom; |
| (c) | cash
in transit at close of business on the Completion Accounts Date receivable by the Company
and cheques and other lodgements received or paid into any bank account of the Company
on or before close of business on the Completion Accounts Date and, in each case, which
clear after close of business on the Completion Accounts Date; and |
| (d) | xxxxx
cash/cash in hand of the Company as at close of business on the Completion Accounts Date; |
less:
| (e) | cash
in transit as at close of business on the Completion Accounts Date paid out by the Company
and cheques issued on or before the Completion Accounts Date by the Company which are
to be cleared through the bank accounts of the Company after close of business on the
Completion Accounts Date, |
in
each case as recorded in the cash book of the Company as shall be shown in the Completion Accounts and, for the avoidance of doubt:
| (i) | any
item falling within more than one of paragraphs (a) to (d) of this definition shall only
be included once in the calculation of Cash; and |
| (ii) | Cash
shall exclude any item that is to be included in the calculation of Working Capital
in accordance with schedule 9; |
Claim
any
one or more claims made by the Buyer for breach of a General Warranty (save for the Warranties at paragraph 38 of schedule 4)
or a Property Warranty;
Company
Accutronics
Limited further details of which are set out in schedule 2;
Company
Intellectual Property
all
Intellectual Property which is used in the conduct of the Company's business at the date of this Agreement, including those items
set out in schedule 8;
Completion
completion
of the sale and purchase of the Shares in accordance with this Agreement;
Completion
Accounts
the
accounts stating the amount of the Working Capital and the Net Indebtedness prepared in accordance with schedule 9;
Completion
Accounts Date
31
December 2015;
Completion
Date
the
date on which Completion occurs pursuant to clause 3;
Computer
Equipment
all
computer hardware owned by the Company and/or used in the Company's business including all disks, disk drives, display screens,
keyboards, printers, microprocessors (whether embedded in a computer or any other piece of equipment), associated and peripheral
equipment and firmware and any other items that connect with any or all of them, together with all relevant technical documentation;
Computer
Software
all
computer software owned by the Company and/or used in the Company's business, including all executable versions of computer programs
in both source and object code form, all operating systems software comprised in the Computer Equipment and all application software
and all other software owned and/or used by the Company or which by virtue of the Company's interest in the Computer Equipment,
or in software owned and/or used by the Company, the Company is entitled to have or use or is capable of having or using;
Computer
Systems
the
Computer Software and the Computer Equipment;
Confidential
Information
all
or any information of a secret or proprietary or confidential nature (however stored) and not publicly known which is owned by
the Company or which is used in or otherwise relates to the business, customers or financial or other affairs of the Company,
including information relating to:
| (a) | the
business methods, technical processes, corporate plans, management systems, finances,
new business opportunities or development projects of the Company; |
| (b) | the
marketing or sales of any past or present or future products, goods or services of the
Company including customer and supplier names and lists and other details of customers,
suppliers, sales targets, sales statistics, market share statistics, prices, market research
reports and surveys and advertising and other promotional materials; |
| (c) | future
projects, business development or planning, commercial relationships and negotiations; |
| (d) | any
trade secrets or other information relating to the provision of any product or service
of the Company; |
| (e) | the
Company Intellectual Property; or |
| (f) | lists
of employees and details of remuneration and benefits paid to those employees; |
Consideration
the
aggregate consideration for the Shares to be paid or satisfied in accordance with clause 3;
Critical
Person
any
person who is or was an employee, agent, director, consultant or independent contractor employed, appointed or engaged by the
Company at any time within the Relevant Period who by reason of such employment, appointment or engagement and in particular his/her
seniority and expertise or knowledge of trade secrets or Confidential Information or knowledge of, or influence over the clients,
customers or suppliers of the Company is likely to be able to assist or benefit a business in or proposing to be in competition
with the Company;
CTA
2010
the
Corporation Tax Xxx 0000;
Customer
any
person who is or was at any time during the Relevant Period a client or customer of the Company for the sale or supply of Products
or Services;
Data
Protection Legislation
any
and all data protection and privacy legislation in force from time to time in those parts of the world in which the Company operates
and/or processes personal data (either directly or via a third party) including the Data Protection Xxx 0000 and the Privacy and
Electronic Communications (EC Directive) Regulations 2003;
Disclosed
fully,
fairly and accurately disclosed in the Disclosure Letter (and not elsewhere) in such manner and with sufficient detail and clarity
to enable the Buyer to assess the scope, nature and impact of the matter disclosed;
Disclosure
Documents
the
two identical bundles of documents (as listed in the schedule to the Disclosure Letter) in the Agreed Form;
Disclosure
Letter
the
letter in the Agreed Form with the same date as this Agreement from the Sellers to the Buyer relating to the Warranties;
Distance
Selling Legislation
any
and all distance selling legislation in force from time to time in those parts of the world in which the Company operates including
the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013;
Draft
Completion Accounts
a
draft of the Completion Accounts prepared in accordance with schedule 9;
E-Commerce
Legislation
any
and all e-commerce legislation in force from time to time in those parts of the world in which the Company operates including
the Electronic Commerce (EC Directive) Regulations 2002;
Effective
Date
the
date of this Agreement;
Encumbrance
any
mortgage, charge (fixed or floating), pledge, lien, option, hypothecation, restriction, right to acquire, right of pre-emption
or interest (legal or equitable) including any assignment by way of security, reservation of title, guarantee, trust, right of
set off or other third party right or any other security interest having a similar effect howsoever arising;
Environmental
Laws
all
statutes, rules, regulations, statutory instruments, treaties, directives, directions, by-laws, codes of practice, circulars,
guidance notes, orders, notices, demands or injunctions of any governmental authority or agency or any regulatory or other body,
or any common law duty of care in any jurisdiction in relation to Environmental Matters;
Environmental
Licences
every
licence, registration, permit, authorisation, approval, consent or like matter relating to Environmental Matters which is necessary
in connection with the commencement and continuation of the use of any Property or any process or activity carried on at any Property,
including any conditions or limitations imposed on, or any subsequent amendment or alteration made to, any such licence, registration,
permit, authorisation, approval or consent;
Environmental
Matters
any
of the following:
| (a) | the
release, emission, entry or introduction of any Relevant Substance into the air including
the air within buildings and other natural or man-made structures, whether above or below
ground; |
| (b) | the
discharge, release or entry of any Relevant Substance into water (whether natural or
artificial, above or below ground) including into any river, water course, lake, loch,
pond or reservoir or the surface of the river bed or of other land supporting such waters,
ground waters (as defined in section 1(12) of the EPA), sewer or the sea; |
| (c) | the
release, deposit, keeping or disposal of any Relevant Substance in or on land, whether
or not covered by the sea or other waters; |
| (d) | the
deposit, disposal, keeping, treatment, importation, exportation, transportation, handling,
processing, manufacture, collection, sorting or presence of any Relevant Substance; |
| (e) | any
deposit, disposal, keeping, treatment, importation, production or carrying of any waste,
including any substance which constitutes scrap material or any effluent or other unwanted
surplus substance arising from the application of any process or activity (including
making it re-usable or re-claiming substances from it) and any substance or article which
requires to be disposed of as being broken, worn out, contaminated or otherwise spoiled; |
| (f) | nuisance,
noise, defective premises, health and safety at work, industrial illness, industrial
injury due to environmental factors, environmental health problems, the conservation,
preservation and protection of the natural or built environment or of man or any living
organisms supported by the environment; or |
| (g) | any
other matter whatsoever affecting the environment or any part of it; |
EPA
the
Environmental Protection Xxx 0000;
Estimated
Net Indebtedness
£0;
Estimated
Working Capital
£1,641,000;
General
Warranties
the
statements in schedule 4 and clause 6.10;
Health
& Safety Laws
all
applicable statutes, statutory legislation, common law, treaties, regulations, directives, codes of practice and guidance notes
(which have legal effect) in force from time to time concerning the health and safety of those who work for the Company whether
as employees or otherwise, or are in any way affected by the activities of the Company or by persons working for or on behalf
of the Company;
Health
& Safety Matters
any
matters relating to the Company which arise under Health & Safety Laws;
Indebtedness
the
aggregate of any indebtedness of the Company outstanding as at close of business on the Completion Accounts Date (calculated or
referred to in pounds sterling), including indebtedness for borrowed monies of the Company to banks, providers of finance, other
financial institutions, the Sellers or any third party (whether by way of overdraft, loan, bond, forward sale or purchase agreement
or any other transaction having the commercial effect of borrowing and including all outstanding or accrued or due interest thereon
including any termination or repayment-related fees), including:
| (a) | any
bank debt, including any debit balances on any bank accounts, (whether or not then due
for repayment) gross of unamortised legal or other expenses in respect of such debt; |
| (b) | any
amount raised by the Company by acceptance under any acceptance credit facility; |
| (c) | any
amount raised by the Company pursuant to any note purchase facility or the issue of bonds,
notes, debentures, loan stock or any similar instrument; |
| (d) | any
amounts owed by the Company under any finance leases, hire, rental, hire purchase, credit
sale or other conditional purchase or lease of assets agreements together with interest
and related charges (excluding operating and property leases); |
| (e) | any
corporation tax (or equivalent) accruals in respect of profits generated by the Company
up to the close of business on the Completion Accounts Date, or interest accruals of
the Company (excluding deferred tax); |
| (f) | any
accrued and/or unpaid contractual, discretionary or otherwise bonus, whether related
to a sale of the Company or otherwise howsoever payable to employees or consultants of
the Company or any of them; |
| (g) | any
outstanding amount owing to any Seller or any person connected with any Seller on any
account whatsoever; |
| (h) | any
and all unpaid transaction costs in connection with the sale of the Shares in accordance
with this Agreement; and |
| (i) | any
and all deferred income, |
| (k) | any
Indebtedness that is to be included in the calculation of Working Capital in accordance
with schedule 9, as derived from the Completion Accounts; |
Initial
Consideration
£7,575,000;
Intellectual
Property
all
intellectual property rights, including:
| (a) | patents,
registered and unregistered trade and service marks, business names, domain names, copyright,
rights in designs, rights in inventions, database rights and topography rights (whether
or not registered); |
| (b) | applications
for any of the rights in (a) above, together with the right to apply for registration
of such rights; |
| (c) | know-how,
trade secrets, confidential information, technical information, customer and supplier
lists and any other proprietary knowledge and/or information of whatever nature and howsoever
arising, |
together
with any rights or types of protection of the same or of a similar nature to those listed in (a), (b) or (c) which may subsist
anywhere in the world and in each case for their full term and/or effect;
Intellectual
Property Agreement
any
licence, consent or permission to use any Intellectual Property (including any unwritten or informal arrangement) including those
set out in part 3 of schedule 8;
Losses
any
losses (including loss of profits, loss of reputation and consequential losses), claims, judgments, costs (including costs of
enforcement and legal costs), damages, awards, charges, demands, proceedings, penalties, fines, expenses and/or any other liabilities
incurred or sustained, or which may, directly or indirectly, be incurred or sustained;
<name
redacted>
<name
redacted>
Management
Accounts
the
unaudited balance sheet and profit and loss account and cashflow statement of the Company for the 15 month period ended on the
Management Accounts Date;
Management
Accounts Date
30
November 2015;
Net
Indebtedness
Indebtedness
less Cash, as calculated and agreed or determined in accordance with schedule 9 and as set out in the Net Indebtedness Statement
forming part of the Completion Accounts;
Net
Indebtedness Statement
has
the meaning given in schedule 9;
Parties
the
parties to this Agreement, and Party shall be consulted accordingly, and both terms shall be interpreted in accordance
with clause 1.2.6;
Pension
Scheme
the
group personal pension scheme administered by Royal London;
Permitted
Payments
any
payments made by the Company to the Sellers or any of them since the Completion Accounts Date and which are included in the list
of permitted payments set out in part 5 of Schedule 9;
Products
or Services
products
or services which are of the same kind as or of a materially similar kind to or competitive with any products or services sold
or supplied by the Company within the Relevant Period;
Prohibited
Activities
the
business of the Company as undertaken by the Company during the Relevant Period;
Properties
all
the leasehold properties owned or occupied by the Company, brief details of which are set out in part 1 of schedule 7 and each
of them a Property;
Property
Warranties
the
statements in part 2 of schedule 7;
Recognised
Investment Exchange
has
the meaning given in section 285(1) Financial Services and Markets Xxx 0000;
Records
together:
| (a) | accounts,
books, ledgers, financial and other records of whatsoever kind of the Company, including
all documentation relating to the contracts and employees of the Company, all invoices
and other records required for VAT purposes, tax records and all lists of customers and
suppliers of the Company in each case however stored and howsoever connected to the Company
and the Computer Systems; and |
| (b) | all
technical and sales material of the Company, including plans, technical and sales publications,
designs, drawings and any negatives, blocks, plates and other similar material; |
Relevant
Period
the
period of 12 months immediately prior to Completion;
Relevant
Substance
any
hazardous, dangerous, toxic, poisonous, noxious, offensive, radioactive, flammable, explosive, infectious or polluting substance,
including asbestos, polychlorinated biphenyls or terphenyls (PCBs or PCTs), petroleum (including crude oil any fractions of crude
oil and any petroleum produce and distillates), radon gas, batteries and any other substance or waste described or listed in or
pursuant to any Environmental Laws as hazardous, dangerous, special, toxic, radioactive, noxious or offensive and any other substance
which is included under or regulated by or pursuant to any Environmental Laws relating to matters which come within the scope
of the definition of Environmental Matters or anything made using any of those substances;
Restricted
Territory
any
territory in which the Company has carried on business during the Relevant Period;
Sellers'
Accountants
Dains
LLP of 00 Xxxxxxx Xxx, Xxxxxxxxxx, X0 0XX;
Sellers'
Representative
Xxxxxx
Xxxxx LLP of 000 Xxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxx Xxxxxxxx X00 0XX (reference PRB);
Sellers'
Solicitors
Xxxxxx
Xxxxx LLP of 000 Xxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxx Xxxxxxxx X00 0XX;
Shares
75,000
A ordinary shares of £1 each and 179,453 ordinary shares of £1 each, in the capital of the Company, comprising the
whole of the share capital of the Company;
Specific
Accounting Policies
the
specific accounting policies, principles, practices, procedures, judgments, categorisations, estimations and techniques set out
in part 2 of schedule 9;
Tax
has
the meaning given in schedule 6;
Tax
Authority
has
the meaning given in schedule 6;
Tax
Claim
has
the meaning given in schedule 6;
Tax
Covenant
the
covenants relating to Tax contained in part 2 of schedule 6;
Tax
Warranties
the
statements in part 3 of schedule 6;
TCGA
1992
the
Taxation of Chargeable Gains Xxx 0000;
Technical
Information
all
data, formulae, techniques, trade secrets, expertise, proprietary knowledge, know-how, designs, drawings, recipes, specifications,
instructional materials and other such information, of whatever nature, used by the Company in connection with its business;
UKLA
the
United Kingdom Listing Authority or any other competent authority for the time being for the purposes of Part VI Financial Services
and Markets Xxx 0000;
VAT
value
added tax within the meaning of the VATA;
VATA
the
Value Added Tax Xxx 0000;
Warranties
the
General Warranties, the Tax Warranties and the Property Warranties and references to Warranty shall be construed accordingly;
Warrantors
Xxxxxx
Xxxxxxxx and Xxxxxxx Xxxxx;
Working
Capital
the
working capital of the Company at the Completion Accounts Date, being a sterling sum equal to the aggregate of all those line
items included within the Pro-forma Working Capital Statement set out in part 3 of schedule 9 as calculated and agreed or determined
in accordance with schedule 9 and as set out in the Working Capital Statement forming part of the Completion Accounts;
Working
Capital Statement
has
the meaning given in schedule 9.
| 1.2 | In
this Agreement, a reference to: |
| 1.2.1 | a
clause or schedule is, unless otherwise stated, a reference to a clause of, or a schedule
to, this Agreement; |
| 1.2.2 | a
paragraph is, unless otherwise stated, a reference to a paragraph of a schedule; |
| 1.2.3 | a
statutory provision includes a reference to that statutory provision as replaced, modified
or re-enacted from time to time and any subordinate legislation made under that statutory
provision from time to time, in each case whether before or after the date of this Agreement
provided that, as between the Parties, no such replacement, modification or re-enactment
made after the date of this Agreement shall apply for the purposes of this Agreement
to the extent it would impose any new or extended obligation, liability or restriction
on, or otherwise adversely affect the rights of, any Party; |
| 1.2.4 | a
"subsidiary" includes a reference to a "subsidiary" and a "subsidiary
undertaking" (each as defined in the Act) and a reference to a "holding company"
includes a reference to a "holding company" and a "parent undertaking"
(each as defined in the Act); |
| 1.2.5 | a
person includes a reference to an individual, body corporate, association, government,
state, agency of state or any undertaking (whether or not having a legal personality
and irrespective of the jurisdiction in or under the law of which it was incorporated
or exists); |
| 1.2.6 | a
Party means a party to this Agreement and includes its permitted assignees and/or the
successors in title to substantially the whole of its undertaking and, in the case of
an individual, to his estate and personal representatives; |
| 1.2.7 | a
company (other than the "Company") shall be construed so as to include any
company, corporation or other body corporate, wherever and however incorporated or established; |
| 1.2.8 | writing
includes, subject to clause 15.3, any mode of reproducing words in a legible and non-transitory
form; and |
| 1.2.9 | this
Agreement or any provision of this Agreement or any other document are to this Agreement,
that provision or that document as in force for the time being and as amended from time
to time in accordance with the terms of this Agreement or that document or with the agreement
of the relevant parties (as the case may be). |
| 1.3 | The
schedules form part of this Agreement and have the same effect as if expressly set out
in the body of this Agreement and shall be interpreted and construed as though they were
set out in this Agreement. |
| 1.4 | The
contents table and headings in this Agreement are for convenience only and do not affect
the interpretation or construction of this Agreement. |
| 1.5 | Words
importing the singular include the plural and vice versa and words importing a gender
include every gender. |
| 1.6 | The
words "other", "include", "including" and "in particular"
do not limit the generality of any preceding words and any words which follow them shall
not be construed as being limited in scope to the same class as the preceding words where
a wider construction is possible. |
| 1.7 | All
agreements, obligations and liabilities on the part of the Sellers or any two or more
of the Sellers contained in or arising under this Agreement are save as expressly provided
joint and several and shall be construed accordingly. |
| 1.8 | Any
question as to whether a person is connected with another shall be determined in accordance
with section 1122 of the CTA 2010 (except that in construing section 1122 "control"
has the meaning given by section 1124 or section 450 of the CTA 2010 so that
there is control whenever section 1124 or 450 requires) which shall apply in
relation to this Agreement as it applies in relation to the CTA 2010. |
| 1.9 | Unless
specified otherwise, or where the context otherwise requires, a reference to the "Company"
shall be deemed to include a reference to each subsidiary so that, for the avoidance
of doubt but without any limitation, the Warranties, any indemnity and the Tax Covenant
shall be given in respect of and in relation to the Company and each subsidiary. |
| 1.10 | Where
in this Agreement any party gives an indemnity in favour of another party then, subject
as expressly provided otherwise in this Agreement, the obligation of the indemnifying
party shall be to make the relevant payment in full on demand and without any set-off,
counterclaim or other deduction. |
| 2. | Sale
and purchase of the Shares |
| 2.1 | Each
Seller shall sell with full title guarantee and free from any Encumbrance, and the Buyer
shall buy, the number of Shares set opposite the name of that Seller in schedule 1. |
| 2.2 | Section
6(2) Law of Property (Miscellaneous Provisions) Xxx 0000 shall not apply for the purpose
of this Agreement. |
| 2.3 | Title
to, beneficial ownership of and any risk attaching to the Shares shall pass to the Buyer
on Completion and the Shares shall be sold and purchased together with all rights and
benefits attached to or accruing to them at, or at any time after, Completion. |
| 2.4.1 | waives
any right of pre-emption over or in respect of the Shares (or any of them) which may
have been conferred on him, whether under the articles of association of the Company
or otherwise; |
| 2.4.2 | undertakes
to procure that any right of pre-emption over any of the Shares which may be vested in
any other person is waived; and |
| 2.4.3 | covenants
with the Buyer that the Shares are fully paid (or credited as fully paid) and constitute
the whole of the share capital of the Company. |
| 2.5 | The
Buyer shall not be required to complete the purchase of any of the Shares unless all
of the Shares are transferred at the same time. |
3.
Consideration
| 3.1 | The
Consideration shall be an amount equal to the Initial Consideration, as adjusted after
Completion in accordance with clause 4 and schedule 9. |
| 3.2 | The
Consideration shall be apportioned between the Sellers in the amounts set opposite their
respective names in schedule 1 but the Buyer shall not be concerned to see to the division
of the Consideration amongst the Sellers. |
| 3.3 | The
Initial Consideration shall be paid in cash at Completion on account of the Consideration
and any further payment (or repayment, as the case may be) shall be paid in accordance
with clause 4.3. |
3.4
Unless otherwise agreed in writing between the Parties, any sum due from one Party to another under any provision of this
Agreement shall be paid by telegraphic transfer of funds to the receiving Party's solicitors. The receipt of the receiving Party's
solicitors will give a full and valid discharge to the paying Party who shall not be obliged to see to the application of such
monies.
4.
Adjustment of Consideration
| 4.1 | The
Completion Accounts shall be prepared, and each of the Working Capital and Net Indebtedness
determined, in accordance with schedule 9. |
| 4.2 | The
Consideration shall be adjusted as follows: |
| 4.2.1 | if
the Working Capital is less than the Estimated Working Capital, there shall be deducted
the amount by which the Working Capital is less than the Estimated Working Capital; |
| 4.2.2 | if
the Working Capital is greater than the Estimated Working Capital, there shall be added
the amount by which the Working Capital is greater than the Estimated Working Capital; |
| 4.2.3 | if
the Net Indebtedness is less than the Estimated Net Indebtedness, there shall be added
the amount by which the Net Indebtedness is less than the Estimated Net Indebtedness;
and |
| 4.2.4 | if
the Net Indebtedness is greater than the Estimated Net Indebtedness, there shall be deducted
the amount by which the Net Indebtedness is greater than the Estimated Net Indebtedness. |
| 4.3 | Within
5 Business Days of the date on which the Completion Accounts are agreed or determined
in accordance with schedule 9 if the Consideration, adjusted in accordance with clause
4.2, is: |
| 4.3.1 | greater
than the Initial Consideration, the Buyer shall pay to the Sellers an amount equal to
the amount by which the Consideration exceeds the Initial Consideration, such amount
to be apportioned between the Sellers in the proportions set opposite their respective
names in schedule 1 (although the Buyer shall not be concerned to see to the division
of the Consideration amongst the Sellers) and to be paid in accordance with clause 3.4;
or |
| 4.3.2 | less
than the Initial Consideration, the Sellers shall repay to the Buyer an amount equal
to the amount by which the Consideration is less than the Initial Consideration, such
amount to be paid by the Sellers in the proportions set opposite their respective names
in schedule 1 and to be paid in accordance with clause 3.4 and all such payments shall
be made without any deduction or set off whatsoever. |
| 5.1 | Completion
shall take place at the office of the Buyer's Solicitors on the Effective Date when each
of the matters set out in schedule 3 shall occur. |
| 5.2 | Upon
completion of the matters referred to in schedule 3 the Buyer shall pay the Consideration
in the manner specified in clause 3.4. |
| 6. | Warranties
and indemnities |
| 6.1 | The
Sellers (other than MJF Pension Trustees Limited) severally warrant to the Buyer in the
terms of the Warranties set out in paragraph 35 of schedule 4 and clause 6.10. The Warrantors
warrant to the Buyer in the terms of the Warranties. |
| 6.2 | The
Warranties are subject only to: |
| 6.2.1 | any
matter which is Disclosed; and |
| 6.2.2 | the
provisions of schedule 5, provided that none of the limitations in schedule 5 shall apply
in respect of a breach of any of the Warranties in paragraphs 2 or 35 in schedule 4 and
clause 6.10. |
| 6.3 | The
Sellers acknowledge that the Buyer is entering into this Agreement in reliance on each
of the Warranties. |
| 6.4 | Save
as provided in clause 6.2: |
| 6.4.1 | no
information of which the Buyer has knowledge (actual, constructive or imputed) shall
prevent or limit a claim made by the Buyer for breach of clause 6.1; and |
| 6.4.2 | neither
the rights and remedies of the Buyer, nor the Sellers' liability in respect of the Warranties,
shall be affected by any investigation made by or on behalf of the Buyer into the Company. |
| 6.5 | The
Warrantors waive and may not enforce any right which they may have in respect of any
misrepresentation, inaccuracy or omission in or from any information or advice supplied
or given by the employees or officers of the Company for the purpose of assisting the
Sellers to make a representation, give a Warranty or prepare the Disclosure Letter. |
| 6.6 | Each
of the Warranties (and each sub-paragraph within each Warranty) shall be interpreted
as a separate and independent warranty so that the Buyer shall have a separate claim
and right of action in respect of every breach of each Warranty. Each Warranty shall
be construed independently and, except where this Agreement provides otherwise, is not
limited by the terms of any other Warranty or any other provision of this Agreement. |
| 6.7 | Unless
otherwise specified, where any Warranty refers to the knowledge, information, belief
or awareness of the Warrantors (or any similar expression), the Warrantors shall be deemed
to have such knowledge, information, belief and awareness as the Warrantors would have
obtained had they made all due and careful enquiry of each other, Xxxxx Xxxx, Xxxxx Xxxxxxxx,
Xxxxxx Xxxxxxxx and each senior employee in the Company who has responsibility for, or
oversight over, the particular function or area which is the subject matter of the Warranty
and the Auditors and the Sellers’ Solicitors, and no further enquiry shall be required
into the subject matter of that Warranty. |
| 6.8 | Without
limiting the rights of the Buyer or its ability to claim damages on any basis, if there
is a breach of Warranty or any of the Warranties is untrue or misleading, and: |
| 6.8.1 | the
Company incurs or becomes subject to a liability or an increase in any liability which
it would not have incurred or been subject to had the breach not occurred; or |
| 6.8.2 | the
value of any asset of the Company is less or becomes less than the value would have been
had the breach not occurred, |
then
the Warrantors undertake to the Buyer (for itself and as trustee of the benefit of this clause 6.8 for the Company) to pay to
the Buyer (or as the Buyer elects) in cash on demand a sum equal to:
| 6.8.3 | the
liability, increased liability or reduction in the value of the asset (as appropriate);
or |
| 6.8.4 | the
reduction in the value of the Shares caused by the breach. |
| 6.9 | Any
payment required to be made by the Sellers pursuant to this clause 6 shall be: |
| 6.9.2 | deemed
to be a reduction in the Consideration. |
| 6.10 | Each
Seller (other than MJF Pension Trustees Limited) severally warrants that: |
| 6.10.1 | no
bankruptcy order has been made in respect of itself nor has any petition been presented
to make itself bankrupt; |
| 6.10.2 | no
application has been made in respect of itself for an interim order under section 253
Insolvency Xxx 0000, no person has been appointed by the court to prepare a report in
respect of itself under section 273 Insolvency Act 1986 and no interim receiver has been
appointed to the property of itself under section 286 Insolvency Xxx 0000; |
| 6.10.3 | it
is not unable to pay, and there is no reasonable prospect of it being unable to pay,
any debt as those expressions are defined in section 268 Insolvency Xxx 0000; |
| 6.10.4 | it
has full power and authority, and has taken all action necessary (including obtaining
all necessary consents or approvals) to enter into and perform this Agreement and any
other deeds, agreements or documents to be entered into pursuant to this Agreement; and |
| 6.10.5 | it
is entitled to sell the Shares registered in its name with full title guarantee on the
terms of this Agreement without the consent of any third party and such sale will not
result in any breach of or default under any agreement or obligation binding upon it. |
The
provisions of schedule 6 shall apply.
| 8. | Restrictions
on the WARRANTORS |
| 8.1 | The
Warrantors severally undertake to the Buyer (for the benefit of itself and the Company)
that they will not, either solely or jointly, directly or indirectly, alone or in conjunction
with or on behalf of or through any other person and whether as a principal, shareholder,
director, employee, agent, consultant, partner, member or any other capacity, for a period
of two (2) years following the Completion Date |
| 8.1.1 | within
the Restricted Territory carry on or be engaged, concerned or interested in, or provide
technical, commercial, professional or other advice to, any other business which supplies
Products or Services in competition with the Company; |
| 8.1.2 | within
the Restricted Territory be employed, engaged, concerned or interested, directly or indirectly,
in any business which at any time during the Relevant Period has supplied products or
services to the Company; |
| 8.1.3 | do
or attempt to do anything which causes or may cause any supplier who has supplied products
or services to the Company during the Relevant Period to cease, alter or materially reduce
its supplies to the Company or to alter the terms on which it supplies the Company; |
| 8.1.4 | in
competition with the Company, solicit any order, enquiry or business in respect of any
Prohibited Activities, or for the sale or supply of any Products or Services, from any
Customer; |
| 8.1.5 | in
competition with the Company, accept any order, enquiry or business in respect of any
Prohibited Activities, or for the sale or supply of any Products or Services, from any
Customer; |
| 8.1.6 | solicit,
induce or entice away from the Company, or attempt to solicit, induce or entice away
from the Company, in any case in connection with a business in or proposing to be in
competition with the Company, a Critical Person, whether or not such person would commit
any breach of his contract of employment or engagement by leaving the service of the
Company; or |
| 8.1.7 | employ
or engage, or offer to employ or engage, in any case in connection with a business in
or proposing to be in competition with the Company, a Critical Person, whether or not
such person would commit any breach of his contract of employment or engagement by accepting
such employment or engagement. |
| 8.2 | The
Sellers severally undertake to the Buyer (for the benefit of itself and the Company)
that they will not, either solely or jointly, directly or indirectly, alone or in conjunction
with or on behalf of or through any other person and whether as a principal, shareholder,
director, employee, agent, consultant, partner, member or other capacity, at any time
after Completion, except to the extent they remain in the capacity of an employee, representative
or agent of, and at the direction of the Company: |
| 8.2.1 | hold
themselves out as having any continuing involvement with the Company; |
| 8.2.2 | do
or say anything which is, or which could reasonably be foreseen to be, harmful to the
reputation or goodwill of the Company; or |
| 8.2.3 | in
relation to a business which is, or is proposing to be, in competition with the Company,
use, whether as a company name, trading name or otherwise, the name "Accutronics"
or any other name used by the Company in connection with its business activities (or
any other names which may be confused with such names). |
| 8.3 | Each
of the restrictions contained in clauses 8.1 and 8.2 are to be treated as separate obligations,
independent of the others. |
| 8.4 | The
Parties consider the restrictions contained in clauses 8.1 and 8.2 to be reasonable as
between themselves and the public interest. If, however, any of them are found by a court
to be unreasonable or unenforceable, but would be reasonable and enforceable if deleted
in part or reduced in application, then the restrictions shall apply with such deletion
or modification as may be necessary to make it reasonable and enforceable. |
| 8.5 | Nothing
in this clause 8 shall prevent any Seller from being the holder of or beneficially interested
in any class of securities in any company if such class of securities is listed or dealt
in on any other Recognised Investment Exchange and confers not more than 3% of the votes
which can generally be cast at a general meeting of that company. |
| 8.6 | Each
of the Sellers agrees with the Buyer that he will, at the Buyer's request and cost, enter
into a direct undertaking executed as a deed with the Company whereby he will accept
restrictions corresponding to the restrictions in clauses 8.1 and 8.2. |
| 8.7 | Each
of the Sellers shall procure that any person connected with him complies with the restrictions
set out in clauses 8.1 and 8.2. |
| 9. | Further
undertakings and obligations of the Sellers |
Each
Seller severally confirms that at the date of this Agreement:
| 9.1.1 | neither
he nor any person connected with him has any claim against the Company on any account
whatsoever; |
| 9.1.2 | there
are no agreements or arrangements under which the Company has any actual, contingent
or prospective obligation to or in respect of him or any person connected with him save
in relation to the service agreements between each of the Warrantors and the Company;
and |
| 9.1.3 | any
claim which he or any person connected with him has against the Company is waived in
full, any obligation owed to him or any such connected person by the Company is released
and each Seller severally indemnifies the Buyer and the Company against all Losses which
the Buyer or the Company incurs or suffers, directly or indirectly, in any way whatsoever
in connection with any such claim by or obligation to such Seller (other than any claim
by either Warrantor pursuant to his service agreement). |
| 9.2.1 | Each
Seller severally covenants with the Buyer that he will at his own cost do everything
possible to give the Buyer full and unrestricted legal and beneficial title to the Shares
transferred by him and to give effect to the provisions of this Agreement including,
on receiving the Buyer's request: |
| (a) | doing
and executing, or arranging for the doing and executing of, each act, document and thing
necessary to implement this Agreement; and |
| (b) | giving
to the Buyer all information they possess or to which they have access relating to the
Company's business and allowing the Buyer to copy any document containing that information. |
| 9.2.2 | Immediately
following Completion the Sellers shall (and shall procure that any other person shall)
send to the Buyer at its registered office for the time being all records, correspondence,
documents, files, memoranda and other papers belonging to the Company and which are not
located at a Property or delivered at Completion (whether or not such documents are referred
to in schedule 3). |
| 9.3 | Dealing
with Shares pending registration |
| 9.3.1 | Each
Seller severally undertakes to the Buyer that for so long as he remains the registered
holder of any of the Shares after Completion he will: |
| (a) | hold
such Shares and the dividends and other distributions of profits or surplus or other
assets declared, paid or made in respect of such Shares after Completion and all rights
arising out of or in connection with such Shares in trust for the Buyer; |
| (b) | deal
with and dispose of such Shares and all such dividends, distributions and rights as the
Buyer may direct; |
| (c) | vote
at all meetings which they are entitled to attend as the registered holder of such Shares
in such manner as the Buyer shall direct; and |
| (d) | execute
all instruments of proxy or other documents which the Buyer may require to enable the
Buyer to attend and vote at any such meeting. |
| 9.3.2 | For
the purpose of giving effect to clause 9.3.1 each of the Sellers severally appoints the
Buyer (acting by any of its directors from time to time) to be his attorney in his name
and on his behalf to exercise all or any of the rights in relation to the Shares as the
Buyer in its absolute discretion sees fit from immediately after Completion to the day
on which the Buyer or its lawful nominee is registered in the register of members of
the Company as the holder of the relevant Shares, including: |
| (a) | receiving
notice of, attending and voting at a general meeting, class meeting or other meeting
of the Company; |
| (b) | completing
and returning any meeting requisition, form of proxy, consent to short notice, written
resolution or other document required to be signed by the registered holder of the Shares; |
| (c) | dealing
with, and giving directions as to, any moneys, securities, benefits, documents, notices
or other communications (in whatever form) arising by right of the Shares or received
in connection with the Shares from the Company or any other person; and |
| (d) | executing,
delivering and doing all deeds, instruments and acts in that Seller's name as may be
done in the Seller's capacity as the registered holder of the relevant Shares |
and
for that purpose each Seller consents to the Company sending any written resolutions, notices or other communications in respect
of the Shares registered in his name to the Buyer. The power of attorney granted by this clause 9.3.2 is granted by each Seller
to secure the interest of the Buyer in the Shares and, accordingly, shall be irrevocable. For the avoidance of doubt, only after
Completion will the votes attaching to the Shares be exercisable by the Buyer under the power of attorney granted by this clause
9.3.2.
| 10. | Confidential
Information |
| 10.1 | Each
of the Sellers severally undertakes with the Buyer (for itself and for the benefit of
the Company) that he will: |
| 10.1.1 | not
use or disclose to a person Confidential Information he has or acquires; and |
| 10.1.2 | make
every effort to prevent the use or disclosure of Confidential
Information. |
| 10.2 | Clause
10.1 does not apply to: |
| 10.2.1 | disclosure
of Confidential Information to a director, officer or employee of the Buyer or the Company
whose function requires him to have the Confidential Information; |
| 10.2.2 | use
or disclosure of Confidential Information required to be used or disclosed by law or
by London Stock Exchange plc or by any governmental or regulatory body but only to the
extent required by law, and with advance or contemporaneous notice of same to Buyer; |
| 10.2.3 | disclosure
of Confidential Information to an adviser for the purpose of advising the Sellers but
only on terms that clause 10.1 applies to use or disclosure by the adviser; or |
| 10.2.4 | Confidential
Information which becomes publicly known except by a breach of clause 10.1. |
11.
Announcements
| 11.1 | Subject
to clauses 10 and 11.2, no Party shall make or authorise any public announcement or other
communication or circular concerning the terms of any matter contemplated by or ancillary
to this Agreement without the prior written consent of the other Party such consent not
to be unreasonably withheld or delayed. |
| 11.2.1 | make
or authorise an announcement required by law or by the UKLA, London Stock Exchange plc,
any Recognised Investment Exchange or any regulatory or governmental body (whether or
not such requirement has the force of law) provided that: |
| (a) | such
Party has consulted with and taken into account the requirements of the other Party;
and |
| (b) | such
Party has used reasonable endeavours to obtain confidentiality undertakings from any
relevant securities exchange or regulatory or governmental body; and |
| 11.2.2 | make
a communication to their professional advisers in connection with advice relating to
the interpretation of this Agreement, proceedings relating to the enforcement of the
terms of this Agreement or otherwise. |
| 12. | Assignment
and successors in title |
| 12.1 | No
Party shall assign, transfer, charge, make the subject of a trust or deal in any other
manner with this Agreement or any of its rights under this Agreement or purport to do
any of the same without the prior written consent of the other Party except that the
Buyer may assign at any time the benefit of any provision to which it is entitled from
time to time: |
| 12.1.1 | to
any company which is for the time being a subsidiary or holding company of the Buyer,
or another subsidiary of any such holding company, provided that and subject to the condition
that if any such company ceases to be such a holding company or subsidiary then the Buyer
shall procure that upon such cessation the benefit of any relevant provision shall be
reassigned or transferred back to the Buyer; or |
| 12.1.2 | by
way of security to any financial institution(s) which has or have agreed to advance credit
facilities to the Buyer to assist in the acquisition contemplated by this Agreement, |
provided
that no assignee shall be entitled to greater damages or other compensation than that to which the Buyer would have been entitled
had it not assigned the benefit of those provisions.
| 12.2 | This
Agreement shall be binding upon and shall survive for the benefit of the personal representatives
and successors-in-title of each party. |
| 13.1 | Subject
to clauses 12.2 and 13.3, a person who is not a party to this Agreement shall have no
rights under the Contracts (Rights of Third Parties) Xxx 0000 to enforce or rely on a
provision of this Agreement. No Party may hold itself out as trustee of any rights under
this Agreement for the benefit of any third party unless specifically provided for in
this Agreement. |
| 13.2 | The
Company, any person to whom the benefit of any provision of this Agreement is assigned
in accordance with clause 12.1 and each person falling within the category of persons
described in clause 12.2 is entitled under the Contracts (Rights of Third Parties) Xxx
0000 to enforce any term of this Agreement which confers (expressly or impliedly) any
benefit on any such person. |
| 13.3 | The
employees of the Company may enforce the provisions of clause 6.5. |
| 14. | The
Sellers' Representative |
| 14.1 | Any
consent, agreement, direction or waiver given or made by the Sellers' Representative
for the purpose of this Agreement shall be binding upon all of the Sellers. |
| 14.2 | Delivery
of any notice, document or payment required to be made to the Sellers or any of them
pursuant to this Agreement may be made to the Sellers' Representative whose receipt for
such delivery or payment shall be an absolute discharge of the party making the same
who shall not be concerned as to the destination of such delivery or the application
of such payment (as the case may be). |
| 14.3 | The
Sellers authorise the Sellers' Representative to act in the way contemplated by this
Agreement and to take such decisions as he shall at his entire discretion determine and,
provided he or it acts in good faith, the Sellers' Representative shall have, and accepts,
no liability to any of the Sellers or to any other person other than the Buyer in connection
with or as a result of anything which the Sellers' Representative does, refrains from
doing or neglects or omits to do in connection with any matter relating to the Agreement. |
| 15.1 | Any
notice given pursuant to this Agreement shall be in writing signed by, or on behalf of,
the person issuing the notice. Any notice shall be delivered (i) by hand; (ii) by prepaid
certified mail (return receipt required); or: (iii)by reputable express courier to: |
| 15.1.1 | in
the case of each Seller, his address set out in schedule 1; and |
| 15.1.2 | in
the case of the Buyer, its registered office address for the time being marked for the
attention of Xxxxxx X. Xxxx, Chief Financial Officer, with a copy to Xxxx X. Xxxxxxxxx,
General Counsel, or their successors, |
or,
in relation to any Party, such other address for service in the United Kingdom as that Party may from time to time notify to the
others.
| 15.2 | In
the absence of evidence of earlier receipt, a notice served in accordance with clause
15.1 shall be deemed to have been received at the time of actual delivery to the address
referred to in clause 15.1 or the time of refusal to accept delivery. |
| 15.3 | For
the avoidance of doubt, notice given under this agreement shall not be validly served
if sent by fax or e-mail. |
| 16.1 | Except
where this Agreement provides otherwise, each Party shall pay its own costs (including
in relation to financial, accounting and legal advice) incurred in relation to the negotiation,
preparation, execution and performance of this Agreement and the matters referred to
in this Agreement. |
| 16.2 | This
Agreement, together with any documents in the Agreed Form and all documents entered into
or to be entered into pursuant to the terms of this Agreement, constitutes the entire
agreement between the Parties with respect to all matters referred to in this Agreement.
This Agreement supersedes and extinguishes all previous agreements between the Parties
relating to such matters, other than in relation to any fraud or fraudulent misrepresentation. |
| 16.3 | No
variation to this Agreement shall be effective unless made in writing and signed by or
on behalf of all the Parties. The Buyer and the Sellers shall not be required to obtain
the consent of the Company or any other third party on whom a benefit is conferred under
this Agreement to the termination or variation of this Agreement or to the waiver or
settlement of any right or claim arising under it. |
| 16.4 | Each
provision of this Agreement is severable and distinct from the others. If at any time
any provision of this Agreement is or becomes unlawful, invalid or unenforceable to any
extent or in any circumstances for any reason, it shall to that extent or in those circumstances
be deemed not to form part of this Agreement but (except to that extent or in those circumstances
in the case of that provision) the legality, validity and enforceability of that and
all other provisions of this Agreement shall not be affected in any way. |
| 16.5 | If
any provision of this Agreement is found to be unlawful, invalid or unenforceable in
accordance with clause 16.4 but would be lawful, valid or enforceable if some part of
the provision were deleted, the provision in question shall apply with such modification(s)
as may be necessary to make it lawful, valid or enforceable. |
| 16.6 | The
failure or delay in exercising a right or remedy provided by this Agreement or by law
does not constitute a waiver of that (or any other) right or remedy. No single or partial
exercise, or non-exercise or non-enforcement of any right or remedy provided by this
Agreement or by law prevents or restricts any further or other exercise or enforcement
of that (or any other) right or remedy. |
| 16.7 | The
Buyer may release or compromise the whole or any part of the liability of any one or
more of the Sellers under any provision of this Agreement, or grant to any Seller time
or other indulgence, without affecting the liability of any other Seller. No waiver by
the Buyer of, or delay in enforcing, any of the provisions of this Agreement shall release
any Seller from full performance of his remaining obligations under this Agreement. |
| 16.8 | The
Buyer's rights, powers and remedies contained in this Agreement are cumulative and not
exclusive of any rights, powers and remedies provided by law. |
| 16.9 | Except
to the extent that they have been performed or where this Agreement provides otherwise,
the obligations contained in this Agreement remain in force after Completion. |
| 16.10 | This
Agreement may be executed in any number of counterparts, each of which when executed
and delivered shall be an original. All the counterparts shall together constitute one
and the same agreement, which shall be deemed executed when counterparts executed by
all of the Parties are delivered. |
| 17.1 | This
Agreement shall be governed by and interpreted in accordance with the laws of England
and Wales. Non-contractual obligations (if any) arising out of or in connection with
this Agreement (including its formation) shall be governed by the laws of England and
Wales. |
| 17.2 | Subject
to schedule 9, the Parties agree to submit to the exclusive jurisdiction of the English
Courts in relation to any claim or matter (whether contractual or non-contractual) arising
under this Agreement or any of the documents in the Agreed Form. |
| 17.3 | Each
party irrevocably waives any objection which it might at any time have to the English
Courts being nominated as the forum to decide any suit, action or proceedings, and to
settle any disputes, which may arise out of or in connection with this Agreement (including
non-contractual disputes and claims) and agrees not to claim that the English Courts
are not a convenient or appropriate forum. |
THE
PARTIES have executed this Agreement as a deed and delivered it on the date first set out above
schedule 1
Sellers
| Name
and address |
Number
and class of Shares sold |
Initial
Consideration
(£) |
Proportion
of Consideration
(%) |
| XXXXXX
XXXXXX XXXXXXXX of <Address redacted> |
50,000
ordinary |
1,488,487 |
19.65 |
| INTRINSIC
EQUITY LIMITED of Xxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx X0 0XX |
65,000
ordinary |
1,935,033 |
25.55 |
| MJF
PENSION TRUSTEES LIMITED of 0 Xx Xxxxxxx Xxxxxx, Xxxxxxxxxx X0 0XX and XXXXX XXXXXXX XXXXXXX of <Address redacted> as trustees of the Xxxxxxx J Field SIPPS (X X Xxxxxxx a/c) |
60,000
ordinary |
1,786,184 |
23.58 |
| XXXXXXX
XXXXX of <Address redacted> |
4,453
ordinary |
132,564 |
1.75 |
| CATAPULT
GROWTH FUND LIMITED PARTNERSHIP of 00-00 Xxxxxxxx Xxxxx, Xxxxxxxx on the Hill, Xxxxxx Xxxxxxx, Xxxxxxxxxxxxxx XX00
0XX |
75,000
A ordinary |
2,232,730 |
29.47 |
| TOTAL |
|
7,575,000 |
100 |
schedule 2
The
Company
| Name |
Accutronics
Limited |
| Registered
number |
06999250 |
| Previous
names |
None |
| Date
of incorporation |
24.08.2009 |
| Place
of incorporation |
England
and Wales |
| Registered
office address |
Xxxx
00 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx-xxxxx-Xxxx, Xxxxxxxxxxxxx XX0 0XX |
| Share
capital |
£254,453
divided into 75,000 A ordinary shares of £1 each and 179,453 ordinary shares of £1 each, registered as follows: |
| |
Shareholder |
No.
of shares |
| |
Xxxxxx
Xxxxxx Xxxxxxxx |
50,000
Ordinary |
| |
Intrinsic
Equity Limited |
65,000
Ordinary |
| |
MJF
Pension Trustees Limited and Xxxxx Xxxxxxx Xxxxxxx as trustees of the Xxxxxxx J Field SIPPS (X X Xxxxxxx a/c) |
60,000
Ordinary |
| |
Xxxxxxx
Xxxxx |
4,453
Ordinary |
| |
Catapult
Growth Fund Limited Partnership |
75,000
A Ordinary |
| Directors |
Xx
Xxxxxxx Xxxxx
Xx
Xxxxx Xxxxx Xxxxxxxx
Mr
Xxxxxx Xxxxxx Xxxxxxxx |
| Accounting
reference date |
31.08 |
| Last
accounts made up to |
The
Accounts Date |
| Last
annual return made up to |
24.08.2015 |
| Auditors |
The
Auditors |
| Bank |
Nat
West Bank, 00 Xxxx Xxxxxx, Xxxxxxxxx Under Lyme, Staffordshire ST5 1PN |
| Charges |
Date
registered |
Document |
Chargee |
| |
01.10.2009 |
Debenture |
Catapult
Growth Partnership Limited |
| |
18.09.2009 |
Debenture |
Fortis
Commercial Finance Limited |
| VAT
number |
977134002 |
| Tax
district and reference number |
Cumbernauld
586/KA36501 |
| |
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schedule 3
Completion
| 1. | Items
for delivery by the Sellers |
The
Sellers shall deliver to the Buyer:
| 1.1 | duly
executed transfers of the Shares in favour of the Buyer (or such other person as the
Buyer directs); |
| 1.2 | the
certificates for the Shares (or a duly executed indemnity in the Agreed Form in respect
of any missing, lost or destroyed certificates); |
| 1.3 | such
waivers or consents as the Buyer may require to enable full beneficial ownership of the
Shares to vest in the Buyer or its nominee and for the Buyer or its nominee to be registered
as the holder of the Shares; |
| 1.4 | a
certified copy of any power of attorney under which this Agreement or any document to
be delivered to the Buyer pursuant to this schedule 3 has been executed; |
| 1.5 | the
common seal (if any), certificate of incorporation, certificate(s) of incorporation on
change of name (if any) and statutory books of the Company (including each register,
minute book and other book required to be kept under the Act) made up to the date of
Completion; |
| 1.6 | the
written resignation in the Agreed Form of Xxxxx Xxxxxxxx as a director of the Company; |
| 1.7 | a
duly executed MR04 in the Agreed Form evidencing the discharge and release of all security
and guarantees of the Company to Catapult Growth Fund Limited Partnership; |
| 1.8 | evidence
in a form satisfactory to the Buyer that all guarantees, bonds and indemnities, securities
or Encumbrances given by the Company in respect of the indebtedness, liabilities or obligations
of any of the Sellers or any person connected with any of the Sellers have been released; |
| 1.9 | in
relation to each bank account maintained by the Company: |
| 1.9.1 | a
statement for that account as at the close of business on the Business Day immediately
prior to Completion, and a statement reconciling those balances with the cash book of
the Company as at Completion; |
| 1.9.2 | a
copy of the mandate for that account; and |
| 1.9.3 | all
cheque books in respect of that account; |
| 1.10 | all
credit, debit or other cards in the name of or for the account of the Company in the
possession of any person resigning from his office or employment on Completion; |
| 1.11 | all
Companies House web filing service details for the Company, including the relevant sign
in e-mail address, security code and company authentication code; |
| 1.12 | the
deeds, certificates, motor vehicle leases and other documents of title to the assets
of the Company (other than the Property), including registration certificates and files
for applications and oppositions or other registry proceedings in respect of the Company
Intellectual Property together with all applicable documentation and information relating
to the domain names listed in part 4 of schedule 8; |
| 1.13 | the
leases relating to the Properties; |
| 1.14 | evidence
in a form satisfactory to the Buyer that debts and accounts between the Company and the
Sellers or any person connected with any of them have been fully paid; |
| 1.15 | a
letter duly executed on behalf of Artemis Services Limited, varying a consultancy agreement
dated 31 March 2015 and made between Artemis Services Limited and the Company. |
The
Sellers shall procure that a board meeting of the Company is held at which:
| 2.1 | the
share transfers referred to in paragraph 1.1 above are approved, subject only to stamping; |
| 2.2 | such
persons as the Buyer may nominate as directors are appointed; |
| 2.3 | its
registered office is changed to Xxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx X0 0XX; |
| 2.4 | its
accounting reference date is changed to 31 December; and |
| 2.5 | existing
authorities and instructions to bankers in respect of the operation of the Company's
bank accounts are revoked and new authorities and instructions are issued in such terms
as the Buyer may require. |
| 3. | Obligations
of the Buyer |
The
Buyer shall:
| 3.1 | deliver
to the Sellers a duly executed copy of the Disclosure Letter; |
| 3.2 | deliver
to the Sellers a certified copy of board minutes of the Buyer authorising the acquisition
of the Shares on the terms of this Agreement and the execution and delivery of this Agreement
and any agreements or documents required to be executed and delivered by the Buyer pursuant
to the terms of this Agreement; |
schedule 4
General
Warranties
INTENTIONALLY
OMITTED
| 2.1 | The
Shares are fully paid or credited as fully paid and constitute the whole of the share
capital of the Company. |
| 2.2 | No
Share was allotted at a discount. |
| 2.3 | The
Sellers are the only legal and beneficial owners of the Shares. There is no Encumbrance
on, over or affecting any of the Shares or any unissued shares, debentures or other securities
of the Company nor is there any agreement, arrangement or obligation to create or give
an Encumbrance in relation to any of the Shares or any unissued shares, debentures or
securities of the Company. |
| 2.4 | No
person has the right (whether exercisable now or in the future and whether contingent
or not) to call for the issue, allotment, conversion, redemption, repayment, sale or
transfer of any shares, debentures or other securities of the Company. |
| 2.5 | None
of the Shares was, or represents assets which were the subject of a transfer at an undervalue
(within the meaning of Part IX or Part VI Insolvency Act 1986) within the 5 years immediately
prior to the date of this Agreement. |
| 2.6 | There
is no litigation, arbitration, prosecution, administrative or other legal proceedings
or dispute in existence or threatened against any of the Sellers or the Company in respect
of the Shares or any unissued shares, debentures or securities of the Company or the
Sellers' entitlement to dispose of the Shares and so far as the Warrantors are aware
there is no fact or circumstance which might give rise to any such proceedings or dispute. |
| 3.1 | No
shares in the capital of the Company have been issued, nor has any transfer of shares
been registered, otherwise than in accordance with the articles of association of the
Company in force at the relevant time. |
| 3.2 | Each
necessary permission for each issue and transfer of shares has been validly obtained
and any stamp duty or other tax payable upon such issue or transfer has been paid. |
| 3.3 | The
Company has not at any time: |
| 3.3.1 | purchased
or redeemed or agreed to purchase or redeem any shares of any class of its share capital; |
| 3.3.2 | otherwise
reduced or agreed to reduce its share capital or any class of its share capital; or |
| 3.3.3 | issued
any shares for a consideration payable otherwise than in cash. |
| 3.4 | There
are no rights of pre-emption over or restrictions relating to the transfer of the Shares
(whether contained in the Company's articles of association or otherwise) which could
apply on the sale of the Shares to the Buyer. |
| 4.1.1 | The
Company is a limited company incorporated under English law and has been in continuous
existence since incorporation. |
| 4.1.2 | The
Company has not been a subsidiary of any body corporate (wherever incorporated) at any
time since its incorporation. |
| 4.2.1 | The
Company has not at any time been, and will not at Completion be, the owner or registered
holder of any share, loan capital, interest or equity in, or other security of, any body
corporate (wherever incorporated) nor has it agreed to become the owner or registered
holder of any such share, loan capital, interest, equity or other security. |
| 4.2.2 | The
Company has never had a participating interest in any other company or undertaking. |
| 5.1 | The
only directors of the Company are the persons listed in schedule 2. |
| 5.2 | No
person is a shadow director of the Company. |
| 6.1 | A
true, complete and accurate copy of the memorandum and articles of association of the
Company at the date of this Agreement is included in the Disclosure Documents, which
memorandum and articles of association contain all documents required to accompany them
under section 36 of the Act. |
| 6.2 | The
Company has at all times carried on its business and affairs in accordance with its constitution
(at the relevant time). |
| 6.3 | Each
register, minute book and other book which the Company is required by law to keep has
been properly kept and contains a true, complete and accurate record of the matters which
it is required to record. No notice has been received or allegation made that a register
or book is incorrect or should be rectified. |
| 6.4 | The
Company, its directors, officers and employees have all complied with all the provisions
of the Act in relation to the activities of the Company, and all returns, particulars,
resolutions and other documents required by the provisions of the Act to be delivered
on behalf of the Company to the Registrar of Companies or to any other authority, organisation,
person or body: |
| 6.4.1 | have
been properly made, delivered and filed; |
| 6.4.2 | were
true, complete and accurate; and |
| 6.4.3 | were
submitted within the relevant time period. |
| 6.5 | Neither
the Company nor any class of its members has passed any resolution at annual general
meetings which was special business. |
| 6.6 | There
is no written resolution of the Company with a circulation date prior to the date of
this Agreement which has not yet been passed by the members or else lapsed in accordance
with the Act. |
| 6.7 | All
dividends and distributions declared, made or paid by the Company have been declared,
made or paid in accordance with its constitution (at the relevant time), all applicable
legislation and any agreement or arrangement made with any third party regulating the
payment of dividends and distributions by the Company, true, complete and accurate copies
of which agreements or arrangements are included in the Disclosure Documents. |
| 6.8 | The
Company has not given any power of attorney or other authority by which a person may
enter into an agreement, arrangement or obligation on the Company's behalf (other than
an authority for a director, other officer or employee to enter into an agreement in
the normal and ordinary course of his duties). |
The
information set out in schedules 1, 2, 7 (other than part 5 of schedule 7) and 8 to this Agreement is true, complete, accurate
and not misleading in all respects.
The
Accounts (a true, complete and accurate copy of which is included in the Disclosure Documents):
| 8.1.1 | comply
with the Act and all other relevant statutes and statutory instruments; |
| 8.1.2 | have
been prepared in accordance with generally accepted accounting principles and practices
in the United Kingdom at the date on which the Accounts were approved by the directors; |
| 8.1.3 | comply
with all financial reporting standards adopted or issued by The Accounting Standards
Board applicable to a United Kingdom company as at the date on which the Accounts were
approved by the directors; |
| 8.1.4 | have
been audited by an auditor or firm of accountants qualified to act as auditors in the
United Kingdom and the auditor's report on the Accounts is unqualified; |
| 8.1.5 | show
a true and fair view of the financial position and state of affairs of the Company as
at the Accounts Date and of its profit (or loss) and cash flow for the financial period
ended on that date; |
| 8.1.6 | have
been prepared on a basis wholly consistent with that used for the preparation of the
Company's accounts for the last three financial periods; and |
| 8.1.7 | have
been filed and laid before the Company in general meeting in accordance with the requirements
of the Act. |
| 8.2.1 | Full
provision or reserve has been made in the Accounts for all Tax assessed or liable to
be assessed on the Company, or for which the Company is accountable, in respect of: |
| (a) | profits,
gains or income earned, arising, accruing or received (or deemed to arise, accrue or
to have been earned or received for any purpose); |
| (b) | transactions
effected or deemed to have been effected; and |
| (c) | distributions
made or deemed to have been made |
in
each case as at the Accounts Date.
| 8.2.2 | Full
provision has been made in the Accounts for deferred Tax in accordance with generally
accepted accounting principles and practices in the United Kingdom. |
The
results shown by the Accounts were not materially affected by:
| 8.3.1 | transactions
of a nature not usually undertaken by the Company; |
| 8.3.2 | transactions
or circumstances of an extraordinary, exceptional or non-recurring nature; or |
| 8.3.3 | charges
or credits relating to prior or subsequent financial periods. |
| 8.4 | Valuation
of stock and long-term contract balances |
In
the Accounts:
| 8.4.1 | stock
(except long-term contract balances) was valued in the same way as in the three preceding
financial years and on the basis of the lower of cost or net realisable value based on
a physical stock count; and |
| 8.4.2 | the
long-term contract balances were valued in the same way as in the three preceding financial
years and on the basis of net cost less foreseeable losses and payments on account. |
The
value of the fixed assets of the Company shown in the Accounts is at cost less depreciation deducted from time to time in a consistent
manner and there has been no revaluation of such fixed assets since their acquisition.
| 8.6 | Off
balance sheet financing |
The
Company has not engaged in any financing (including incurring any borrowing or indebtedness in the nature of acceptances or acceptance
credits) of a type which would not be required to be shown or reflected in the Accounts.
| 8.7.1 | There
have been no reports concerning the Company by financial or management consultants within
the three years ending on the date of this Agreement. |
| 8.7.2 | There
have been no management recommendation letters received by the Company or its board of
directors from any auditor. |
| 8.8 | Auditor
liability limitation agreements |
The
Company has not at any time entered into a liability limitation agreement (as defined in section 534 of the Act) with its auditors
and there is no arrangement or agreement in place to do so.
| 9.1 | The
Management Accounts (a true, complete and accurate copy of which is included in the Disclosure
Documents): |
| 9.1.1 | have
been prepared with due care and attention; |
| 9.1.2 | have
been prepared in accordance with good management accounting practice on a basis consistent
with previous management accounts prepared by the Company; |
| 9.1.3 | accurately
reflect the financial position and state of affairs of the Company as at the Management
Accounts Date; |
| 9.1.4 | fairly
reflect the trading and profit of the Company for the period from the Accounts Date to
the Management Accounts Date; and |
| 9.1.5 | are
consistent with the accounting records of the Company. |
| 9.2 | The
results shown by the Management Accounts were not materially affected by: |
| 9.2.1 | transactions
of a nature not usually undertaken by the Company; |
| 9.2.2 | transactions
or circumstances of an extraordinary, exceptional or non-recurring nature; |
| 9.2.3 | charges
or credits relating to any prior or subsequent periods; or |
| 9.2.4 | any
change in the accounting policies or practices from those applied in the preparation
of previous management accounts of the Company. |
| 10.1.1 | are
in the Company's possession; |
| 10.1.2 | have
at all times been fully and properly kept; |
| 10.1.3 | have
at all times been kept in accordance with the law and generally accepted principles,
standards and practices relating to all matters recorded in them; |
| 10.1.4 | are
complete and accurate in respect of what should ordinarily be contained in them; and |
| 10.1.5 | properly
record all transactions entered into by the Company. |
| 10.2 | None
of the Records are recorded, stored, maintained, operated or otherwise dependent upon
or held by any means which are not under the exclusive ownership and direct control of
the Company. |
| 10.3 | No
notice or allegation has been received or made that any of the Records are incorrect
or should be rectified. |
| 11. | Business
since the Accounts Date |
Since
the Accounts Date:
| 11.1 | the
Company's business has been carried on in the normal and ordinary course without any
interruption and substantially in the same manner (including nature and scope) and so
as to maintain it as a going concern; |
| 11.2 | there
has been no adverse change in the turnover, the financial or trading position and trading
has remained in line with the current year's budget and so far as the Warrantors are
aware there is no fact or circumstance which might give rise to any such adverse change; |
| 11.3 | the
Company has not, other than in the normal and ordinary course of its business: |
| 11.3.1 | acquired
or disposed of, or agreed to acquire or dispose of, any business or asset; or |
| 11.3.2 | assumed
or incurred, or agreed to assume or incur, a liability, obligation, expense or capital
expenditure (whether, in any case, actual or contingent); |
| 11.4 | none
of the fixed assets of the Company shown in the Accounts or acquired by the Company since
the Accounts Date has been lost, damaged or destroyed; |
| 11.5 | the
Company has not made, or agreed to make, any material price reductions or allowances
or price increases on sales of stock or the provision of its services; |
| 11.6 | the
value of the Company's net assets has not been reduced below that shown in the Accounts; |
| 11.7 | the
Company has not incurred any expense or made any payment otherwise than in the normal
and ordinary course of business and all payments received by the Company have been paid
into the Company's bank account and appear in the appropriate books of account; |
| 11.8 | the
Company has not borrowed any money which it has not repaid (other than in the normal
and ordinary course of its business within limits agreed with the Company's bankers)
and no loan to or loan capital of the Company has been repaid, in whole or in part, or
has become due and payable or liable (with or without notice or lapse of time or both)
to be declared due and payable; |
| 11.9 | the
Company has not been adversely affected by the termination, or a change in the terms,
of an important agreement or by the loss of or material reduction in orders from a customer
or the loss of or material reduction in any source of supply and so far as the Warrantors
are aware without having made external enquiry there is no fact or circumstance which
might give rise to any such adverse effects; |
| 11.10 | the
Company has not paid or declared any dividend or other distribution, whether of capital
or income; |
| 11.11 | the
Company has not created, allotted, issued or acquired any share or loan capital, or made
an agreement or arrangement or undertaken an obligation to do any of those things; |
| 11.12 | no
resolution of the members of the Company (or any class thereof) has been passed; and |
| 11.13 | no
payments have been made by the Company to or on behalf of any of the Sellers (or any
person connected with any of the Sellers) other than the payment of salaries in the normal
and ordinary course of business and at the rates set out in the Disclosure Letter. |
| 12.1 | Each
asset included in the Accounts or acquired by the Company since the Accounts Date (other
than stock disposed of in the normal and ordinary course of business) and each asset
used by the Company or which is in the reputed ownership of the Company is: |
| 12.1.1 | legally
and beneficially owned by the Company free from any Encumbrance; |
| 12.1.2 | where
capable of possession, in the possession or under the control of the Company; and |
| 12.1.3 | situated
in the United Kingdom. |
| 12.2 | The
Company has not sold or transferred or agreed to sell or transfer any of the assets referred
to in paragraph 12.1 and the Company has not granted or agreed to grant any Encumbrance
on or over any such assets. There has been no exercise or purported exercise of a claim
for any Encumbrance on or over any of those assets and there is no dispute directly or
indirectly relating to any of those assets. |
| 12.3 | None
of the assets referred to in paragraph 12.1 has been purchased on terms that title does
not pass to the Company until full payment is made by it to the supplier. |
| 12.4 | All
plant, machinery, vehicles and equipment owned or used by the Company: |
| 12.4.1 | are
in a good and safe state of repair and condition and are in full working order; and |
| 12.4.2 | have
been regularly and properly maintained. |
| 12.5 | The
Company does not make use of any asset which is not included in the Accounts. |
| 12.6 | True,
complete and accurate copies of all material assets of the Company that are covered by
maintenance contracts with independent specialist contractors are included in the Disclosure
Documents. |
| 12.7 | The
asset registers of the Company, true, complete and accurate copies of which are included
in the Disclosure Documents, comprise a true, complete and accurate record of all the
plant, machinery, vehicles and equipment owned or used by the Company. |
| 13. | Hire
purchase and leased assets |
| 13.1 | A
true, complete and accurate list of all the assets (the Leased Assets) used by
the Company which are subject to a lease or hire, hire purchase, credit sale or conditional
sale agreement, together with true, complete and accurate copies of all the contracts,
agreements or arrangements to which those assets are subject, is included in the Disclosure
Documents. |
| 13.2 | So
far as the Warrantors are aware, no circumstance has arisen or is likely to arise in
relation to any Leased Asset whereby the rental payable has been or is likely to be increased
outside of those permitted by the respective lease documentation. |
| 13.3 | All
payments due under the relevant lease or hire, hire purchase, credit sale or conditional
sale agreement in respect of the Leased Assets have been paid on the relevant due dates
and such payments are fully up to date. |
| 13.4 | There
are maintenance contracts with independent specialist contractors in respect of each
Leased Asset which the Company is obliged to maintain or repair under the relevant lease
or hire, hire purchase, credit sale or conditional sale agreement, true, complete and
accurate copies of which contracts are included in the Disclosure Documents. |
| 14.1 | The
Company's stock (which term shall, in this paragraph 14, include raw materials, components,
parts, work in progress, finished and partly finished goods and packaging material consumables)
is: |
| 14.1.1 | not
excessive and is adequate for the normal requirements of its business having regard to
current orders and reasonably anticipated orders; |
| 14.1.2 | so
far as the Warrantors are aware of satisfactory quality and in good condition; and |
| 14.1.3 | so
far as the Warrantors are aware not damaged, slow moving, obsolete, unusable, or of limited
value. |
| 14.2 | None
of the stock referred to in the Accounts has realised an amount less than the value that
was placed on it in the Accounts. |
| 14.3 | So
far as the Warrantors are aware all items of stock which are stored within containers
or in other packaged form are properly labelled or marked and correspond accurately with
the descriptions of the stock on such labels or markings or in the stock records to which
such labels or markings clearly refer. |
| 14.4 | So
far as the Warrantors are aware the Company's stock complies with all applicable laws,
regulations, standards (including United Kingdom and European Union standards) in which
the Company’s products are commonly sold. |
| 15.1 | No
debt shown in the Accounts or the Company's accounting records is overdue by more than
12 weeks or is the subject of an arrangement not made in the normal and ordinary course
of business. |
| 15.2 | No
debt which was included in the balance sheet to the Accounts or which has arisen since
the Accounts Date, has been realised for less than its full face value, has been released,
deferred, subordinated or written off or so far as the Warrantors are aware has become
irrecoverable in whole or in part. |
| 15.3 | A
true, complete and accurate list of all debts owed to the Company as at the close of
business on the Business Day prior to the date of this Agreement is included in the Disclosure
Documents, none of them is subject to dispute, counterclaim or set off nor so far as
the Warrantors are aware is there any fact or circumstance which might give rise to any
such dispute, counterclaim or set off. |
| 15.4 | The
Company is not entitled to the benefit of any debt shown in the Accounts or the Company's
accounting records otherwise than as the original creditor and is not, and has not agreed
to become, a party to any factoring or discounting arrangement in respect of such debts. |
| 15.5 | No
debt owed to the Company has arisen otherwise than as a result of the supply of goods
and/or services by the Company in the normal and ordinary course of its business. |
| 16.1.1 | The
Company Intellectual Property is valid and enforceable and so far as the Warrantors are
aware nothing has been done or omitted to be done by which it may cease to be valid. |
| 16.1.2 | The
Company Intellectual Property is legally and beneficially owned by the Company alone,
free from any licence, Encumbrance, restriction on use or disclosure obligation or is
licensed to the Company, as exclusive licensee, pursuant to an Intellectual Property
Agreement. |
| 16.1.3 | No
Intellectual Property in relation to which any third party has any right, title or interest
is used in or required for or by the Company's business, save that which is the subject
of an Intellectual Property Agreement. |
| 16.1.4 | All
moral rights subsisting in relation to the Company Intellectual Property have been irrevocably
and unconditionally waived. |
| 16.1.5 | The
Company has not granted and is not obliged to grant a licence, assignment or other right
in respect of any of the Company Intellectual Property. |
| 16.2 | Claims
and infringements |
| 16.2.1 | The
Company Intellectual Property is not and so far as the Warrantors are aware will not
be, the subject of a claim or opposition from any person (including an employee or former
employee of the Company) as to title, validity, enforceability, entitlement or otherwise. |
| 16.2.2 | There
is, and has been, no civil, criminal, arbitration, administrative or other proceeding,
including any infringement proceedings, or any other dispute in any jurisdiction concerning
any of the Company Intellectual Property to which the Company is or has been a party.
No civil, criminal, arbitration, administrative or other proceeding concerning any of
the Company Intellectual Property is pending or threatened by or against the Company.
So far as the Warrantors are aware no fact or circumstance exists which might give rise
to a proceeding of that type. |
| 16.2.3 | The
activities, processes, methods, products or services carried out, used, manufactured,
dealt in or supplied on or before the date of this Agreement by the Company: |
| (a) | so
far as the Warrantors are aware do not involve the unlicensed use of a third party's
Intellectual Property or confidential information; |
| (b) | so
far as the Warrantors are aware do not at the date of this Agreement, nor so far as the
Warrantors are aware did they at the time carried out, used, manufactured, dealt in or
supplied, infringe the Intellectual Property (including moral rights) of another person;
and |
| (c) | have
not given, and so far as the Warrantors are aware will not give, rise to a claim against
the Company or a liability to pay compensation in relation to the Intellectual Property
of a third party. |
| 16.2.4 | So
far as the Warrantors are aware no third party has made, is making or is likely to make
any unauthorised use of any of the Company Intellectual Property or so far as the Warrantors
are aware has infringed or is infringing any Company Intellectual Property. |
| 16.2.5 | Neither
the Company nor so far as the Warrantors are aware any other contracting party to any
Intellectual Property Agreement or any other agreement in relation to the Company Intellectual
Property is in breach of such agreement. |
| 16.3 | Adequacy
of Company Intellectual Property |
| 16.3.1 | The
Company Intellectual Property comprises all the Intellectual Property necessary for the
Company to operate its business as carried on at the date of this Agreement. |
| 16.3.2 | There
is no Company Intellectual Property or Intellectual Property Agreement, due to lapse,
expire or terminate within the next three calendar years, the loss, termination or expiry
of which would cause material adverse effect to the Company. |
| 16.3.3 | All
Company Intellectual Property will either be owned by the Company, or available for use
subject to an Intellectual Property Agreement and so far as the Warrantors are aware
none of these rights shall be adversely affected by anything contemplated by this Agreement. |
| 16.4 | Creation
of Intellectual Property |
All
Company Intellectual Property created, concerned, developed or discovered by any persons retained, commissioned, employed or otherwise
engaged by the Company from time to time is fully vested in the Company and no claim for compensation under section 40 Patents
Act 1977 (or otherwise under any analogous or equivalent legislation anywhere in the world) has been made or so far as the Warrantors
are aware is likely to be made against the Company in relation to the Company Intellectual Property by any person retained, commissioned,
employed or otherwise engaged by the Company from time to time.
| 16.5 | Dealings
in and maintenance of Company Intellectual Property |
| 16.5.1 | Any
use of Company Intellectual Property by any third party is subject to an Intellectual
Property Agreement, details of which are set out in the Disclosure Letter and a true,
complete and accurate copy of which is included in the Disclosure Documents. The Company
has not authorised any use of, or granted any rights under the Company Intellectual Property
other than as set out in the Disclosure Letter. |
| 16.5.2 | Nothing
has been done or omitted to be done by the Company which jeopardises the validity, subsistence
or enforceability of any Company Intellectual Property or any Intellectual Property Agreement
concerning the Company Intellectual Property. |
| 16.5.3 | All
Intellectual Property Agreements concerning the Company Intellectual Property, which
are material to the Company's business as at the date of this Agreement are valid and
in force (and where applicable have been recorded at the relevant registry). Details
of those agreements are set out in the Disclosure Letter and true, complete and accurate
copies of them are included in the Disclosure Documents. |
| 16.5.4 | No
Intellectual Property Agreement is one: |
| (a) | in
respect of any Intellectual Property other than the Company Intellectual Property; or |
| (b) | under
the terms of which the Company is, or may become, liable to pay a royalty or similar
charge. |
| 16.5.5 | All
material documents concerning title to and interest in the Company Intellectual Property
(including registration certificates) form part of the records of the Company and will
be delivered to the Buyer at Completion. |
| 16.5.6 | The
Company has received no adverse opinion either from its advisors or from any applicable
registry in respect of an application for any Company Intellectual Property, the failure
to gain registration of which would adversely affect the Company. |
| 16.5.7 | The
Company has taken reasonable steps to maintain and protect the Company Intellectual Property. |
| 17. | Confidential
Information and Technical Information |
| 17.1 | The
Confidential Information and Technical Information is legally, beneficially and solely
(but not jointly) owned by the Company, free from any licence, Encumbrance or restriction
on use. |
| 17.2 | The
Confidential Information and Technical Information has at all times been kept strictly
confidential by the Company and so far as the Warrantors are aware this confidentiality
has not at any time been breached. |
| 17.3 | The
Company has not disclosed any Confidential Information or Technical Information to any
person except where such disclosure was properly made in the normal and ordinary course
of the Company's business pursuant to a legally binding confidentiality agreement (the
details of which are set out in the Disclosure Letter and a true, complete and accurate
copy of which is included in the Disclosure Documents) which requires the recipient to
keep such information confidential, to use it only for the purpose for which it was disclosed
by the Company and which prevents the recipient from further disclosing it. |
| 18.1 | The
Company is the owner of all elements of the Computer Equipment free from all Encumbrances. |
| 18.2 | The
functions of the Company's business dependent on the Computer Systems, or in connection
with which the Computer Systems are or have been used, are set out in the Disclosure
Letter and the Computer Systems have sufficient capacity for the efficient carrying on
of the Company's business as at the date of this Agreement. |
| 18.3 | Full
details of the Computer Equipment and of all Computer Software are set out in the Disclosure
Letter and true, complete and accurate copies of all licences, maintenance agreements,
escrow agreements and (where the warranties have not expired) development agreements
in respect of that Computer Software are included in the Disclosure Documents. The licences
of that Computer Software have been complied with in all material respects by the Company
and any restrictions in those licences do not adversely affect the present conduct of
the Company's business. |
| 18.4 | All
Intellectual Property in all Computer Software used by the Company (except that which
is licensed to the Company as referred to in paragraph 18.3) is owned by the Company. |
| 18.5 | Full
details of all maintenance and support agreements in place in respect of the Computer
Systems are set out in the Disclosure Letter and true, complete and accurate copies are
included in the Disclosure Documents. The maintenance and support provided under those
agreements has been and remains sufficient for the full uninterrupted use of the Computer
Systems. |
| 18.6 | The
individual components and items which together constitute the Computer Systems are compatible
with each other and are not to any material extent redundant. |
| 18.7 | The
Company's employees at the date of this Agreement include a sufficient number of persons
who are sufficiently technically competent and appropriately trained to ensure the proper
operation and use of the Computer Systems. The Computer Systems are sufficiently documented
to enable their full and proper use without reliance on the special knowledge or memory
of any person. |
| 18.8 | No
third party has any right to prevent the Company from continuing to use the Computer
Systems except pursuant to provisions contained in the documents referred to in paragraph
18.3 and no such right has arisen or been purportedly exercised. |
| 18.9 | None
of the Company's records, systems, controls, data or information are recorded, stored,
maintained, operated or otherwise wholly or partly dependent upon or held by any means
(including any electronic, mechanical or photographic process whether computerised or
not) which (including all means of access to or from such records, systems, controls,
data or information) are not under the exclusive ownership and direct control of the
Company. |
| 18.10 | The
Company has a disaster recovery plan in respect of damage to or destruction of some or
all of the Computer Systems which is prudent and which is designed to permit all of the
critical functions of the Company's business which are run on the Computer Systems to
be restored within 24 hours, the balance of functions being restored within 48 hours. |
| 18.11 | The
Company has prudent procedures in place which are designed to ensure the security of
the Computer Systems and data stored on it including by the use of properly administered
and run password protection, data encryption, up to date industry standard virus checking
software and procedures for taking and storing on site (at least once every 12 hours)
and off site (at least once every 24 hours) back up copies of the Computer Software and
all data stored on the Computer Equipment. |
| 18.12 | The
Company is not a party to a facilities management agreement (whether as a provider or
a recipient of services) nor is the Company a subscriber to or provider of bureau, out
sourcing or similar services. |
| 18.13 | In
the 12 month period immediately preceding the date of this Agreement, the Company has
not suffered any failures or breakdowns of any of the Computer Systems. |
| 18.14 | The
Company has in its possession or control all executable versions of all Computer Software
in both source and object code except that which is licensed to the Company as referred
to in paragraph 18.3. |
| 18.15 | The
Computer Software is able to perform: |
| 18.15.1 | all
the monetary transactions of the Company's business in euro in addition to sterling;
and |
| 18.15.2 | any
conversion and rounding requirements necessary to give effect to the substitution of
sterling by the euro as the currency of the United Kingdom in accordance with all applicable
legislation and regulations. |
| 19.1 | The
Disclosure Documents contain true, complete and accurate copies of: |
| 19.1.1 | all
current or unperformed (in whole or in part) contracts with a cost or value of £100,000
or greater to which the Company is a party, whether or not in the normal and ordinary
course of business. For the avoidance of doubt, a contract shall not be unperformed for
the purpose of this warranty solely by reference to the fact that any limitation period
under any warranty provided by the Company has not expired; |
| 19.1.2 | details
of all orders with a cost or value of £100,000 or greater received by the Company
which are in any respect outstanding. |
| 19.2 | No
tender, quotation or offer has been made by the Company which is outstanding otherwise
than in the normal and ordinary course of business. |
| 19.3 | The
Company is not a party to or subject to any contract, agreement, transaction or arrangement
or subject to any liability which: |
| 19.3.1 | is
of an unusual, onerous or abnormal nature or is not of an entirely arms' length nature; |
| 19.3.2 | is
outside the normal and ordinary course of business: |
| 19.3.3 | is
for a fixed term of more than six months or for an indefinite term incapable of termination
in accordance with its terms on not more than 90 days' notice served by the Company at
any time; |
| 19.3.4 | is
of a long term nature (that is unlikely to have been fully performed in accordance with
its terms within six months of the date on which it was entered into); |
| 19.3.5 | involves
an aggregate outstanding expenditure by the Company of more than £100,000; |
| 19.3.6 | cannot
be readily performed by the Company without undue expenditure or application of money,
effort or personnel; |
| 19.3.7 | constitutes
a sale or purchase, option or similar agreement, arrangement or obligation affecting
the Company's business or any of its assets (save for the sale of the Company’s
stock in trade in the ordinary course of the Company's business); |
| 19.3.8 | is
one by which the Company grants or is granted sole or exclusive rights; |
| 19.3.9 | is
a distributorship, agency, franchise or management agreement or arrangement; |
| 19.3.10 | involves
payment by any party by reference to fluctuations in the index of retail prices or any
other index or in a currency other than sterling; |
| 19.3.11 | is
for a loan, guarantee, indemnity or suretyship; |
| 19.3.12 | so
far as the Warrantors are aware is of a loss making nature (that is likely to result
in a loss to the Company on completion of the Company's obligations); |
| 19.3.13 | involves,
or is likely to involve, the manufacture, sale or supply of goods or the supply of services
the aggregate sales value of which will be more than 5% of the Company's turnover for
the preceding financial year; |
| 19.3.14 | so
far as the Warrantors are aware has or is likely to have a material effect on the financial
or trading position of the Company; or |
| 19.3.15 | confers
or purports to confer a benefit or right on any person who is not a party to the relevant
contract, agreement or arrangement. |
| 19.4 | All
the contracts, agreements or arrangements to which the Company is a party and which are
not fully discharged by performance are so far as the Warrantors are aware in full force
and effect and so far as the Warrantors are aware constitute valid and binding obligations
on the parties to such contracts, agreements and arrangements which are enforceable in
accordance with their terms. |
| 19.5 | Neither
the Company nor the Warrantors have any knowledge of the invalidity of, or a ground for
termination, avoidance or repudiation of, a contract, agreement or arrangement to which
the Company is a party. No party with whom the Company has entered into a contract, agreement
or arrangement has given notice of its intention to terminate, or so far as the Warrantors
are aware has sought to repudiate or disclaim, the contract, agreement or arrangement.
The Company has not received written notice of any actual or proposed changes to the
prices or other material terms of any contracts, agreements or arrangements to which
it is a party. |
| 19.6 | The
contracts, agreements and arrangements entered into by the Company have been duly complied
with by the Company, and so far as the Warrantors are aware no party to such a contract,
agreement or arrangement is in breach of any such contract, agreement or arrangement
and so far as the Warrantors are aware there is no fact or circumstance which might give
rise to a such breach by any party to such a contract, agreement or arrangement (other
than the Company). No contract, agreement or arrangement to which the Company is a party
is the subject of any dispute or claim and so far as the Warrantors are aware there is
no fact or circumstance which might give rise to any such dispute or claim. |
| 19.7 | So
far as the Warrantors are aware, there has been no delay, negligence or other default
on the part of the Company and no event has occurred which, with the giving of notice
or passage of time, could constitute a breach by the Company of any of its obligations
under any contract, agreement or arrangement to which it is a party. |
| 19.8 | So
far as the Warrantors are aware none of the other parties to any contract, agreement
or arrangement to which the Company is a party is entitled to: |
| 19.8.1 | exercise
any set off or counterclaim; or |
| 19.8.2 | to
delay or withhold payment of any monies falling due under that contract, agreement or
arrangement; or |
| 19.8.3 | to
make payment to any party other than the party specified in such contract, agreement
or arrangement. |
| 19.9 | The
Company has not been a party to a transaction to which sections 190, 197, 198, 201, 203
or 223 of the Act apply. |
| 19.10 | The
Company has not, within the 5 year period prior to Completion, paid any compensation
to a third party agent in accordance with the terms of the Commercial Agents (Council
Directive) Regulations 1993, and/or the national implementing legislation of the European
Directive relating to Self Employed Commercial Agents (861/653/EE) in other European
Union member states. So far as the Warrantors are aware there is no fact or circumstance
which might give rise to a claim for such compensation being made against the Company. |
| 20. | Joint
ventures and partnerships |
| 20.1 | The
Company is not, nor has it agreed to become, a member of any joint venture, consortium,
European Economic Interest Grouping, partnership or other unincorporated association
or a party to any agreement or arrangement for sharing profit, commissions or other income. |
| 20.2 | The
Company is not a member of any partnership, trade association, society or other group,
whether formal or informal, and whether or not having a separate legal identity and no
such body is relevant to or has any material influence over the Company. |
| 21.1.1 | The
Company does not carry on business under licence or otherwise than as principal. |
| 21.1.2 | The
Company does not use any name for any purpose other than its full corporate name. |
| 21.1.3 | The
Company does not have, and has not conducted any part of its business through, any branch,
place of business or agency outside the United Kingdom. The Company does not have any
substantial assets outside the United Kingdom. |
| 21.1.4 | No
agent, distributor, representative, supplier or other party (not being an employee) is
entitled to any fixed or varying payment or credit in connection with the Company's business
past, present or future. |
| 21.1.5 | During
the year ending on the date of this Agreement no substantial customer or supplier of
the Company has: |
| (a) | stopped,
or indicated an intention to stop, trading with or supplying the Company; |
| (b) | reduced,
or indicated an intention to reduce, its trading with or supplies to the Company; or |
| (c) | changed,
or indicated an intention to change, the terms on which it is prepared to trade with
or supply the Company (other than normal price and quota changes). |
| 21.2.1 | No
customer (including any person connected with such customer) accounts for more than 5%
of the aggregate value of all sales made by the Company in the 12 months ending on the
date of this Agreement. |
| 21.2.2 | Except
for a condition or warranty implied by law or contained in its standard terms of business
or otherwise given in the normal and ordinary course of business, so far as the Warrantors
are aware, the Company has not given a condition or warranty, or made a representation,
in respect of goods manufactured or sold (or agreed to be manufactured or sold), or services
supplied (or agreed to be supplied), by it nor has the Company accepted an obligation
that could give rise to a liability after the goods have been manufactured or sold, or
services have been supplied, by it. |
| 21.3.1 | No
supplier (including any person connected with such supplier) accounts for more than 5%
of the aggregate value of all purchases made by the Company in the 12 months ending on
the date of this Agreement. |
| 21.3.2 | No
amount owing by the Company to a creditor has been due for more than four weeks. A true,
complete and accurate list of all creditors of the Company as at the close of business
on the Business Day prior to the date of this Agreement is included in the Disclosure
Documents. |
| 21.3.3 | No
supplier to the Company is entitled to charge interest in respect of any monies owed
to it by the Company. The Company has no liability (whether actual or contingent) for
unpaid interest in respect of the late payment of any invoice or other liability paid
or settled prior to Completion. |
| 22. | Defective
products or services |
| 22.1 | So
far as the Warrantors are aware the Company has not manufactured, sold or supplied goods
or services: |
| 22.1.1 | which
are or were or will become faulty or defective; or |
| 22.1.2 | which
do not comply with any warranties or representations expressly or impliedly (whether
by statute, common law or otherwise) made by it;; or |
| 22.1.3 | which
do not comply with any applicable regulations, standards and requirements. |
| 22.2 | Full
details of all customer claims, complaints or returns relating to the Company that have
occurred during the 12 months ending on the date of this Agreement are contained in the
Disclosure Letter. There are no outstanding claims against the Company in respect of
defects in quality or delays in delivery or completion of contracts or deficiencies of
design or performance of equipment or otherwise relating to liability for goods manufactured,
sold or supplied, or services supplied, or to be so manufactured, sold or supplied by
the Company and so far as the Warrantors are aware no such claims have been threatened
or are anticipated. |
| 22.3 | The
Company has no outstanding liability or obligation where it has admitted a liability
or accepted an obligation to service, repair, maintain, take back or otherwise do or
not do anything in respect of any goods manufactured, sold or supplied, or services supplied,
by the Company. |
| 22.4 | The
Company has not received and is so far as the Warrantors are aware not likely to receive
a prohibition notice, a notice to warn or a suspension notice under the Consumer Protection
Xxx 0000. |
| 23. | Data
protection and privacy |
| 23.1 | The
Company has at all times fully complied with, and at the date of this Agreement fully
complies with, the Data Protection Legislation including: |
| 23.1.1 | the
data protection principles; |
| 23.1.2 | the
requirements relating to notification of processing of personal data; |
| 23.1.3 | data
subject access requests; |
| 23.1.4 | the
obtaining of appropriate consents for direct marketing; and |
| 23.1.5 | the
creation and regular maintenance of appropriate suppression lists. |
| 23.2 | Full
details of the Company's registration under the Data Protection Xxx 0000 are set out
in the Disclosure Letter. |
| 23.3 | No
information notice or enforcement notice or other correspondence has been received by
the Company from the Information Commissioner or any other competent authority or industry
body alleging non-compliance or requiring compliance with the Data Protection Legislation
and so far as the Warrantors are aware there is no fact or circumstance that might give
rise to the issue of such notices or correspondence. |
| 23.4 | There
is no claim or action, or so far as the Warrantors are aware any fact or circumstance
that might give rise to a claim or action, against the Company for non-compliance with
the Data Protection Legislation. |
| 24. | Distance
selling and e-commerce |
| 24.1 | The
Company has at all times fully complied with, and at the date of this Agreement fully
complies with, the Distance Selling Legislation including: |
| 24.1.1 | the
provisions relating to the provision of information; and |
| 24.1.2 | the
provisions relating to cancellation periods. |
| 24.2 | The
Company has at all times fully complied with and currently complies with the E-Commerce
Legislation including: |
| 24.2.1 | the
provisions relating to the technical steps the customer must follow to conclude the contract;
and |
| 24.2.2 | the
provisions relating to the provision of information. |
| 24.3 | No
correspondence has been received by the Company from the Competition and Markets Authority
(or any predecessor) or any other competent authority or industry body alleging non-compliance
or requiring compliance with the Distance Selling Legislation or the E-Commerce Legislation
and so far as the Warrantors are aware there is no fact or circumstance that might give
rise to such correspondence. |
| 24.4 | There
is no claim or action, or so far as the Warrantors are aware any fact or circumstance
that might give rise to a claim or action, against the Company for non-compliance with
the Distance Selling Legislation or the E-Commerce Legislation. |
| 25.1 | Neither
the Company, a Seller, nor so far as the Warrantors are aware a person for whose acts
or defaults the Company may be vicariously liable is involved, or has during the five
(5) years ending on the date of this Agreement been involved, in a civil, criminal, arbitration,
administrative or other proceeding in any jurisdiction. No civil, criminal, arbitration,
administrative or other proceeding in any jurisdiction is so far as the Warrantors are
aware pending or has been threatened by or against the Company or a person for whose
acts or defaults the Company may be vicariously liable. |
| 25.2 | There
is no fact or circumstance which might give rise to a civil, criminal, arbitration, administrative
or other proceeding in any jurisdiction involving the Company or a person for whose acts
or defaults the Company may be vicariously liable nor so far as the Warrantors are aware
has the Company been concerned or involved in any act, event or omission which may give
rise to such matters after the date of this Agreement. |
| 25.3 | There
is no outstanding judgment, order, decree, arbitral award or decision of a court, tribunal,
arbitrator or governmental agency in any jurisdiction against the Company or a person
for whose acts or defaults the Company may be vicariously liable. |
| 26.1.1 | The
Company has at all times carried on its business and used and dealt with its assets in
compliance with all applicable legal and administrative requirements, laws and regulations
whether of the United Kingdom or elsewhere. |
| 26.1.2 | There
has been no violation of, or default with respect to, any statute, regulation, directive,
order, decree or judgement of any court or any governmental agency of the United Kingdom
(or any other country in which the Company conducts business) by the Company. |
| 26.1.3 | Neither
the Company nor any officer nor so far as the Warrantors are aware any employee of the
Company has committed any criminal, illegal or unlawful act or breach of contract or
any legislation. |
| 26.1.4 | The
Company does not carry on (and has not, at any time when not an authorised person under
Part III Financial Services and Markets Xxx 0000, carried on) a regulated activity in
the United Kingdom within the meaning of section 22 Financial Services and Markets Xxx
0000. |
| 26.1.5 | The
Company is not and has not at any time been engaged in any activity governed by any consumer
credit laws. |
| 26.1.6 | There
is no outstanding liability for any industrial training levy or for any other statutory
or governmental levy or charge in relation to the Company or any present or former employees. |
| 26.2.1 | The
Company is not currently, nor has it ever been, the subject of any governmental or other
investigation, enquiry or disciplinary proceeding in any jurisdiction, no such investigation,
enquiry or proceeding is pending or threatened and so far as the Warrantors are aware
there is no fact or circumstance which might give rise to any such investigation, enquiry
or proceeding. |
| 26.2.2 | So
far as the Warrantors are aware no report has been made about the Company and/or its
directors or employees to the National Crime Agency. |
| 26.3.1 | Neither
the Sellers, the Company, any person for whose acts or defaults the Company may be vicariously
liable nor any associated person of the Company (as defined in section 8 Bribery Act
2010) has: |
| (a) | induced
a person to enter into an agreement or arrangement with the Company by means of an unlawful
or immoral payment, contribution, gift, or other inducement; |
| (b) | offered
or made an unlawful or immoral payment, contribution, gift or other inducement to a government
official or employee; |
| (c) | engaged
in any activity, practice or conduct which would constitute an offence under the Xxxxxxx
Xxx 0000; or |
| (d) | directly
or indirectly made an unlawful contribution to a political activity. |
| 26.3.2 | The
Company has in place adequate procedures (in accordance with the guidance published by
the Secretary of State under section 9 Bribery Act 2010) designed to prevent any associated
person (as referred to in paragraph 26.3.1 above) from bribing another person for the
Company's benefit. |
| 26.3.3 | The
Company has not: |
| (a) | acquired
any asset with monies representing the proceeds of crime; or |
| (b) | at
any time received monies representing the proceeds of crime. |
| 26.3.4 | The
Shares were not purchased or subscribed for by the Sellers with monies representing the
proceeds of crime. |
| 26.4 | Brokerage
or commissions |
No
person is entitled to receive from the Company a finder's fee, brokerage or commission in connection with this Agreement or anything
contained in it and the Company is not liable to pay to any of its directors, employees, agents or advisors any sum whatsoever
in connection with the sale of the Shares.
| 27.1 | For
the purposes of this paragraph 27, Permit shall mean a permit, licence, consent,
approval, certificate, qualification, specification, registration or other authorisation,
or a filing of a notification, report or assessment, necessary in any jurisdiction for: |
| 27.1.1 | the
proper and effective operation of the Company's business; |
| 27.1.2 | the
Company's ownership, possession, occupation or use of any of its assets; |
| 27.1.3 | the
manufacture, sale or supply of any goods or services by the Company; or |
| 27.1.4 | the
marketing of such goods or services. |
| 27.2 | The
Company has obtained and so far as the Warrantors are aware complied with the terms and
conditions of each Permit, full details of which are set out in the Disclosure Letter
and true, complete and accurate copies of which are included in the Disclosure Documents. |
| 27.3 | Each
Permit is in full force and effect and is unconditional or subject only to a condition
that has been satisfied (and nothing more remains to be done under the condition). No
expenditure or work is or so far as the Warrantors are aware will be necessary to comply
with, maintain or obtain a Permit. There is no indication that any Permit might be revoked,
suspended, cancelled, varied or not renewed and so far as the Warrantors are aware each
action required for the renewal or extension for each Permit has been taken. No Permit
and no condition to which any Permit is subject is personal to the Sellers and so far
as the Warrantors are aware there is no fact or circumstance which indicates that equivalent
Permits (on no less favourable terms) would not be granted to the Company following the
acquisition of the Shares by the Buyer. |
| 28.1 | So
far as the Warrantors are aware the Company has complied with all of its obligations
and duties under all Health & Safety Laws, and so far as the Warrantors are aware
the activities of the Company are and have always been carried on in accordance with
all relevant Health & Safety Laws. |
| 28.2 | There
are no civil, criminal, arbitration or administrative actions, claims or proceedings
pending or threatened against the Company arising from or relating to any Health &
Safety Laws and so far as the Warrantors are aware there is no fact or circumstance which
might lead to such actions, claims or proceedings. |
| 28.3 | The
Company has not received any communication from any regulatory authority with regard
to any alleged breach of Health & Safety Laws and there have been no complaints,
investigations, enquiries, requests for information or other formal or informal indications
of any possible claims or legal actions in respect of Health & Safety Matters from
any person including any neighbour, current or former employee, or regulatory authority. |
| 28.4 | The
Company has not been, and is not currently being, investigated by any person, regulatory
body, local authority, court or competent organisation in relation to Health & Safety
Matters, and so far as the Warrantors are aware there is no fact or circumstance which
could result in the Company being subject to any such investigation. |
| 29.1 | The
activities of the Company are, and have at all times, been carried on in compliance with
all relevant Environmental Laws. |
| 29.2 | Full
details of all Environmental Licences obtained by the Company are set out in the Disclosure
Letter, together with all amendments to or variations from such licences. No other Environmental
Licences are required by the Company. |
| 29.3 | All
fees payable in relation to any such Environmental Licences have been paid and so far
as the Warrantors are aware there has been no default in the observance of the Environmental
Licence by the Company, its officers, employees, consultants or agents. No application
for an Environmental Licence is pending. |
| 29.4 | No
steps have been taken for the revocation, cancellation, withdrawal, variation or surrender
of any Environmental Licence and so far as the Warrantors are aware no fact or circumstance
exists which might give rise to any revocation, cancellation, withdrawal, amendment,
variation or restriction upon transfer of any Environmental Licence or which would prevent
compliance with any of its terms. |
| 29.5 | The
Company has not received any claim, notice, requirement or complaint from any person,
regulatory body, court or competent organisation in respect of Environmental Matters
which: |
| 29.5.1 | might
prevent the continued use of any part of a Property in the manner and for the purpose
for which it is now being used; |
| 29.5.2 | requires
any remedial work to a Property or the clearance or removal from a Property of any Relevant
Substance; or |
| 29.5.3 | alleges
any breach of Environmental Laws, |
and
so far as the Warrantors are aware there is no fact or circumstance which might give rise to any such claim, notice, requirement
or complaint.
| 29.6 | There
has been no deposit, keeping, tipping, storage, treating, importing, exporting, transporting,
processing, manufacture, collection or production of any Relevant Substance at, above,
upon, in, under, to or from any Property by the Company. |
| 29.7 | The
Company has received no notice or complaint of leaching or migration of any Relevant
Substance into any land adjoining any Property or of any unauthorised emission, release
or discharge of any Relevant Substance from any Property. |
| 29.8 | So
far as the Warrantors are aware there is, and has been, no underground storage tank at
any Property. |
| 29.9 | So
far as the Warrantors are aware no process or activity has been carried on at any Property
by the Company which has caused, will cause or may cause pollution of the environment
or harm to human health (in each case within the meaning of the EPA) or will result in
a legally enforceable obligation on the Company in respect of such pollution or harm
to human health. |
| 29.10 | So
far as the Warrantors are aware no process or activity has been carried on at any Property
by the Company which has resulted in any water standing on or running through either
any Property or any site adjacent to any Property (whether a natural or man-made watercourse
or by percolation). |
| 29.11 | The
Company currently satisfies the conditions attaching to authorisations required under
section 6 of the EPA. |
| 29.12 | No
works have been carried out at any Property during the period of the Company’s
occupation in relation to Environmental Matters by any statutory authority in respect
of which such authority is entitled to recover its costs. |
| 29.13 | The
Company does not meet the qualifying criteria for, and is not required to participate
in, the CRC Energy Efficiency Scheme established by the CRC Energy Efficiency Scheme
Order 2010. |
| 30.1 | The
Company is not nor has it ever been a party to any agreement, arrangement or practice,
nor has it engaged in any course of conduct or practice which: |
| 30.1.1 | has
been the subject of any enquiry or investigation under the Fair Trading Xxx 0000, the
Competition Xxx 0000 or the Enterprise Xxx 0000 or under any competition or anti-trust
law anywhere in the world; |
| 30.1.2 | so
far as the Warrantors are aware infringes or has infringed the Competition Xxx 0000 or
the Enterprise Xxx 0000 (whether or not it was or is exempted or excluded under the Competition
Act 1998); |
| 30.1.3 | so
far as the Warrantors are aware infringes or has infringed Article 101(1) Treaty of the
Functioning of the European Union (TFEU) (previously Article 81 of the EC Treaty)
(whether or not it is or was exempted under Article 101(3) of TFEU (previously Article
81(3) of the EC Treaty)) or Article 102 of TFEU (previously Article 82 of the EC Treaty); |
| 30.1.4 | so
far as the Warrantors are aware infringes or has infringed any competition, anti-trust
or restrictive trade practices law, rule or regulation anywhere in the world; |
| 30.1.5 | is
or has been the subject of any measure, including any undertaking or commitment on the
part of the Company to, or any requirement, decision or order of, the Restrictive Practices
Court, the Competition and Markets Authority (or any predecessor), the Secretary of State
for Business, Innovation and Skills (or any predecessor), the European Commission, the
Court of Justice of the European Communities or the Competition Appeal Tribunal or to
any other competition or regulatory authority, tribunal or court anywhere in the world;
or |
| 30.1.6 | is
or has been the subject of any fine or penalty, imposed or threatened to be imposed,
for any reason including infringement of any law, regulation, administrative provision
or similar matter relating to fair competition, anti-trust, monopolies, mergers or similar
matters by the European Commission, the Competition and Markets Authority (or any predecessor)
or any authority, court or tribunal of competent jurisdiction of any country having jurisdiction
in anti-trust matters. |
| 30.2 | Neither
the Company nor any of its directors, agents or employees has made any application to
the European Commission or any other competition authority for a declaration of inapplicability,
for negative clearance, for leniency or for a letter of comfort in respect of any agreement,
decision or practice relating to the business of the Company. |
| 30.3 | The
Company has not received a notice of any breach by it of any competition, anti-trust,
anti-restrictive trade practice or consumer protection law, rule or regulation anywhere
in the world nor is it, or has it ever been, under or subject to or required or invited
to participate in, any investigation, enquiry, report or order by or by reference to
any regulatory authority under any such law, rule or regulation. |
| 30.4 | The
Company is not a party or otherwise bound under the terms of any agreement or arrangement
which restricts the Company's freedom to carry on the whole or any part of its business
or to use or exploit any of its assets in any part of the world as it thinks fit. |
| 30.5 | The
Company has not received, nor is it due to receive, any aid granted by a member state
of the European Union or through state resources within the meaning of Article 107 of
the TFEU (previously article 87(1) of the EC Treaty). |
| 30.6 | The
Company has not within the last two years been party to any merger, concentration or
other similar arrangement which was capable of review by any anti-trust or similar authorities
in any jurisdiction. |
| 31.1 | Full,
complete and accurate particulars of all insurance and indemnity policies maintained
by the Company or in which the Company has an interest (together, the Policies),
including all endorsements on such Policies, are set out in the Disclosure Letter. |
| 31.2 | Each
of the Policies is valid and enforceable and is not void or voidable. Neither the Company,
nor any director, or so far as the Warrantors are aware any employee or agent of the
Company, has done anything or omitted to do anything which might make any of the Policies
void or voidable. |
| 31.3 | All
premiums due in respect of such Policies have been duly and punctually paid and the Company
has not done or omitted to do anything which might result in an increase in the premium
payable under any of the Policies. |
| 31.4 | The
Company has not at any time been refused any insurance. |
| 31.5 | The
Company has never received a report or recommendation from its insurance brokers or other
advisors which has not been implemented in full. |
| 31.6 | So
far as the Warrantors are aware the Company has not failed to disclose to an insurer
in relation to any insurance policy any information which such insurer would consider
to be material for disclosure. |
| 31.7 | There
is no claim outstanding under any of the Policies and so far as the Warrantors are aware
there is no fact or circumstance which might give rise to such a claim. |
| 31.8 | The
Company has not acquired any benefit under any policy of insurance otherwise than as
original beneficial owner. |
| 32.1.1 | In
this paragraph 32 Employees shall mean all the employees, workers, officers, consultants
and/or agents of the Company. |
| 32.1.2 | The
Company is not a party to any consultancy contract. |
| 32.1.3 | There
is no employment contract between the Company and any of its Employees which cannot be
terminated by one months' notice or less without giving rise to a claim for damages or
compensation (other than a statutory redundancy payment or statutory compensation for
unfair dismissal). The Company has not received notice of resignation from any Employee. |
| 32.1.4 | There
is no employment or consultancy contract or other contract of engagement between the
Company and any person which is in suspension or has been terminated but is capable of
being revived or enforced or in respect of which the Company has a continuing obligation. |
| 32.1.5 | The
Disclosure Documents contain details of: |
| (a) | the
total number of the Company's Employees including details of those who are on maternity
leave or absent because of disability or other long-term leave of absence and (in each
case) have or may have a right to return to work with the Company; |
| (b) | the
name, date of start of employment, period of continuous employment, salary and other
benefits, grade and age of each Employee and, where an Employee has been continuously
absent from work for more than one month, the reason for the absence; |
| (c) | the
terms of the contract of each Employee; |
| (d) | information
of any disciplinary procedure taken against an Employee within the two years ending on
the date of this Agreement in; and |
| (e) | information
of any grievance procedure taken by an Employee within the two years ending on the date
of this Agreement. |
| 32.1.6 | Since
the Accounts Date: |
| (a) | the
basis of the remuneration payable to the Employees has not altered and the Company is
not obliged to increase, nor has it made provision to increase, the total annual remuneration
payable to its Employees; and |
| (b) | no
alterations have been made in the terms of employment or conditions of service of any
of the Employees or in the pension or other benefits of any of the Employees or any past
officer or employee of the Company or any of their dependants or in the terms of any
agreement or arrangement (whether written or unwritten and whether binding or not) with
any trade union, employee representative or body of employees or their representatives. |
| 32.1.7 | The
Company owes no amount to any Employee or former Employee (or his dependant) other than
for accrued remuneration or reimbursement of business expenses which, to the extent due,
have been paid or discharged in full. |
| 32.1.8 | There
is no agreement or arrangement between the Company and an Employee or former Employee
with respect to his employment, his ceasing to be employed or his retirement which is
not included in the written terms of his employment or previous employment. The Company
has not provided, or agreed to provide a gratuitous payment, loan or benefit to an Employee
or to any of his dependants. |
| 32.1.9 | The
Company has maintained up-to-date, full and accurate records regarding each of its Employees
(including details of terms of employment, payments of statutory sick pay and statutory
maternity pay, income tax and social security contributions, disciplinary and health
and safety matters and termination of employment). |
| 32.1.10 | The
Company has not entered into any agreement and no event has occurred which may involve
the Company in the future acquiring any undertaking or part of one such that the Transfer
of Undertakings (Protection of Employment) Regulations 2006 may apply in relation to
such agreement or event. |
| 32.1.11 | The
Company has not dismissed any person in contemplation of this transaction or in the 12
month period immediately preceding the date of this Agreement. |
| 32.1.12 | No
outstanding offer of employment has been made by the Company to any person nor has any
person accepted an offer of employment made by the Company but not yet commenced such
employment. |
| 32.1.13 | So
far as the Warrantors are aware none of the Employees is disabled for the purposes of
the Equality Xxx 0000. |
| 32.1.14 | All
of the Employees have the right to work in the UK and so far as the Warrantors are aware
the Company has complied with all of its obligations in this regard. |
| 32.1.15 | There
are no temporary workers within the Company's business. In relation to any temporary
workers the details of whom are Disclosed against this warranty, the Company has so far
as the Warrantors are aware complied with its obligations pursuant to the Agency Workers
Regulations 2010. |
| 32.1.16 | So
far as the Warrantors are aware the Seller has at all times calculated and paid holiday
pay to the Employees correctly in accordance with the Working Time Directive, the Working
Time Regulations 1998 and current case law (including Lock v British Gas Plc and
Bear Scotland). |
| 32.2 | Payments
on termination |
Except
as Disclosed in the Accounts, the Company has not:
| 32.2.1 | incurred
a liability for breach or termination of an employment contract including a redundancy
payment, protective award or compensation for wrongful dismissal, unfair dismissal or
failure to comply with an order for the reinstatement or re-engagement of an Employee; |
| 32.2.2 | incurred
a liability for breach or termination of a consultancy agreement where such liability
remains outstanding; |
| 32.2.3 | made
or agreed to make a payment or provided or agreed to provide a benefit to an Employee
or former Employee (or to any of his dependants) or made any other agreement or arrangement
in connection with the actual or proposed termination or retirement or suspension of
employment or variation of an employment contract; or |
| 32.2.4 | so
far as the Warrantors are aware incurred a liability in respect of any accident or injury
which is not covered by insurance; or |
| 32.2.5 | received
notice of claim from an Employee or former Employee indicating a potential liability
in respect of any of the foregoing. |
| 32.3.1 | The
Company has complied with: |
| (a) | each
obligation imposed on it by, and each order and award made under, statute, the Treaty
of Rome, TFEU, EC Directive, regulation, code of conduct and practice, collective agreement,
custom and practice relevant to the relations between it and its Employees or a trade
union or the terms of employment of its Employees; |
| (b) | each
recommendation made by the Advisory, Conciliation and Arbitration Service and each award
and declaration made by the Central Arbitration Committee; |
| (c) | the
provisions of the Employment Rights Xxx 0000 in relation to its Employees; |
| (d) | each
obligation under the Working Time Regulations 1998, in particular, as to the hours worked
by its Employees and as to its record-keeping obligations; and |
| (e) | the
provisions of the Information and Consultation of Employees Regulations 2004. |
| 32.3.2 | There
are no enquiries or investigations existing, pending or threatened affecting the Company
in relation to any Employee or former Employee by the Equality and Human Rights Commission,
the Health and Safety Executive or any other body with similar functions or powers in
relation to workers. |
| 32.4 | Redundancies
and transfer of business |
| 32.4.1 | Within
the year ending on the date of this Agreement the Company has not: |
| (a) | given
notice of redundancies to the relevant Secretary of State or started consultations with
a trade union under Chapter II of Part IV Trade Union and Labour Relations (Consolidation)
Xxx 0000 or failed to comply with its obligations under Chapter II of Part IV of that
Act; or |
| (b) | been
a party to a relevant transfer (as defined in the Transfer of Undertakings (Protection
of Employment) Regulations 2006) or failed to comply with a duty to inform and consult
employee representatives or a trade union under those Regulations. |
| 32.4.2 | No
Employee is entitled or potentially entitled to any enhanced redundancy payment and/or
early retirement benefits, whether on the grounds of redundancy or otherwise. |
| 32.5.1 | The
Company has no agreement or arrangement with and does not recognise a trade union, works
council, staff association or other body representing any of its Employees. |
| 32.5.2 | The
Company is not involved in, and so far as the Warrantors are aware no fact or circumstance
exists which might give rise to, a dispute with a trade union, works council, staff association
or other body representing any of its Employees. |
| 32.5.3 | The
Company has not received any formal request under the Information and Consultation of
Employees Regulations 2004. |
| 32.5.4 | No
collective agreements affect any Employee's terms and conditions of employment. |
The
Company does not have and is not proposing to introduce a share incentive, share option, profit sharing, bonus, commission or
other incentive scheme for any of its Employees.
| 32.7.1 | There
are no legal or other proceedings between the Company on the one hand and any Employee
or former Employee on the other hand nor are any such proceedings pending or threatened. |
| 32.7.2 | So
far as the Warrantors are aware there is no fact or circumstance which might give rise
to any such proceedings referred to in paragraph 32.7.1 above. |
| 32.7.3 | No
court or Tribunal case, claim or action has been brought by any Employee or former Employee
against the Company within the two years ending on the date of this Agreement. |
In
this paragraph 33, the following expressions shall have the following meanings:
Disclosed
Scheme
the
Pension Scheme and every other arrangement disclosed in the Disclosure Letter in relation to this paragraph 33;
Employees
the
Company's employees, directors, former employees and former directors; and
Relevant
Benefits
pensions,
allowances, lump sums or other benefits payable on or after termination of service, retirement, death, during periods of sickness
or incapacity or in similar circumstances.
| 33.1 | Save
for under the Disclosed Scheme, the Company does not have any legal, voluntary or moral
obligation to pay, contribute towards or meet the cost of any Relevant Benefits for the
benefit of or in respect of any person. No proposal, announcement or assurance has been
given to any Employee as to the introduction, continuance, increase or improvement of
or the payment of a contribution towards any Relevant Benefits. |
| 33.2 | Full
details of the Disclosed Scheme have been provided to the Buyer including (but not limited
to) complete and correct copies of: |
| 33.2.1 | all
resolutions, policies and other documents establishing, governing or relating to the
Disclosed Scheme; |
| 33.2.2 | all
announcements, member booklets, notices and other explanatory literature issued to members
of the Disclosed Scheme and copies of letters or other documents relating to any special
arrangements under the Disclosed Scheme for individual members or groups of members;
and |
| 33.2.3 | a
list of all Employees who are members of the Disclosed Scheme together with all of the
data and particulars necessary to establish the benefits payable or contingently payable
to or in respect of them under the Disclosed Scheme; |
as
well as details of any proposed changes to any of the information contained in the above documents.
| 33.3 | There
is no obligation to provide benefits under or make contributions to the Disclosed Scheme
except as revealed in the documents provided to the Buyer and no discretion or power
has been or will before Completion be exercised under the Disclosed Scheme to: |
| 33.3.1 | augment
benefits in respect of any of the Employees; |
| 33.3.2 | admit
to membership an Employee who would not otherwise have been eligible for membership of
the Disclosed Scheme; |
| 33.3.3 | provide
in respect of a member a benefit which would not otherwise have been provided in respect
of such member; or |
| 33.3.4 | pay
a contribution to the Disclosed Scheme in respect of an Employee which would not otherwise
have been paid. |
| 33.4 | All
death in service and disability benefits (other than refunds of contributions) which
may be payable to or in respect of any of the Employees are fully insured under a policy
with an insurance company authorised to carry on long-term insurance business under the
Financial Services and Markets Xxx 0000 and all premiums payable in respect of such policies
have been paid. So far as the Warrantors are aware there is no reason why such policies
might be invalidated or why the insurance company might seek to avoid liability under
them. No special terms including as to premiums have been imposed in relation to that
insurance. |
| 33.5 | All
amounts payable by the Company, to or in respect of the Disclosed Scheme have been paid.
All employer and employee contributions to the Disclosed Scheme have been made promptly
at the time that they were due. The Disclosure Letter sets out the rates at which the
Company's and Employees' contributions to the Disclosed Scheme are being paid and how
they are calculated. |
| 33.6 | No
employer other than the Company participates in the Disclosed Scheme. |
| 33.7 | There
are no disputes, proceedings, claims or actions in progress, pending or threatened (other
than routine claims for benefits) in relation to the Disclosed Scheme or otherwise in
relation to the Company's provision (or failure to provide) Relevant Benefits to Employees
(including complaints to the Pensions Ombudsman or investigations by the Pensions Regulator)
and so far as the Warrantors are aware there are no existing circumstances likely to
give rise to any such disputes, proceedings, claims or actions. |
| 33.8 | The
Disclosed Scheme is a money purchase scheme (as defined in section 181(1) of the Pension
Schemes Act 1993) and the benefits currently, prospectively and contingently payable
under the Disclosed Scheme (other than those which are fully insured) are solely the
benefits which can be provided by the funds available in respect of each member under
the Disclosed Scheme. |
| 33.9 | The
Disclosed Scheme is a registered pension scheme as defined in section 150(2) of the Finance
Xxx 0000 and so far as the Warrantors are aware there are no circumstances which would
give HM Revenue & Customs reason to withdraw such registration. |
| 33.10 | The
Disclosed Scheme does not distinguish between members on grounds of age in the provision
of benefits relating to periods of service on or after 1 December 2007 except to the
extent that such different treatment falls within one or more of the excepted rules,
practices, actions or decisions set out in the Equality (Age Exceptions for Pension Schemes
Order) 2010. |
| 33.11 | The
Company and the Disclosed Scheme have not at any time treated an Employee less favourably
in the provision of Relevant Benefits or access to the Disclosed Scheme on the grounds
of gender, disability, race, sexual orientation, religious belief, marital status, hours
of work or fixed-term or temporary agency worker status. |
| 33.12 | So
far as the Warrantors are aware the Disclosed Scheme has at all times been administered
in accordance with the provisions of all relevant statutes, regulations and other overriding
legal requirements and in accordance with the powers and provisions of the Disclosed
Scheme and with due regard to the general requirements of law. |
| 33.13 | The
Company has complied in all material respects with its obligations under the Disclosed
Scheme. |
| 33.14 | The
Company has not at any time participated in any occupational pension scheme (as defined
in section 1 of the Pension Schemes Act 1993). |
| 33.15 | The
Company is not or has not in the six years prior to Completion been an associate of or
connected with (within the meaning of sections 435 and 249 respectively of the Insolvency
Act 1986) any person who is an employer in relation to a pension scheme to which sections
38 to 51 of the Pensions Xxx 0000 apply. |
| 33.16 | In
relation to any Employee whose contract of employment transferred to the Company from
another employer in circumstances where the Transfer of Undertakings (Protection of Employment)
Regulations 1981 or the Transfer of Undertakings (Protection of Employment) Regulations
2006 applied: |
| 33.16.1 | the
Company has complied with its obligations under sections 257 and 258 of the Pensions
Xxx 0000 and Regulations thereunder; and |
| 33.16.2 | no
such Employee had rights or entitlements under an occupational pension scheme in respect
of their employment prior to the transfer other than rights relating solely to benefits
for old age, invalidity or survivors (within the meaning of regulation 10(2) of the Transfer
of Undertakings (Protection of Employment) Regulations 2006. |
| 33.17 | The
Company has at all times complied with its obligations under Part I of the Welfare Reform
and Pensions Xxx 0000 including (but not limited to), prior 1 October 2012, providing
access to a designated stakeholder pension scheme. |
| 33.18 | The
Company has complied with its automatic enrolment obligations as required by the Pensions
Xxx 0000 and associated legislation. No notices, fines or other sanctions have been issued
by the Pensions Regulator and no instances of non-compliance with the automatic enrolment
obligations have been notified to the Pensions Regulator in respect of the Company. Full
details of this compliance are set out in the Disclosure Letter, including (but not limited
to): |
| 33.18.1 | any
documents relating to the Company's staging date; |
| 33.18.2 | copies
of any correspondence between the Company and the Pensions Regulator regarding auto-enrolment,
including details of its registration in accordance with regulation 3 of the Employers'
Duties (Registration and Compliance) Regulations 2010; |
| 33.18.3 | copies
of any records kept in accordance with regulations 5-8 of The Employers' Duties (Registration
and Compliance) Regulations 2010 in respect of the Employees; |
| 33.18.4 | if
a personal pension scheme was used as a "qualifying scheme", copies of any
agreements between the provider and the jobholder under section 26 of the Pensions Xxx
0000; |
| 33.18.5 | details
of any Employees who have opted out and copies of any opt-out letters in respect of those
employees; and |
| 33.18.6 | a
copy of any certification under section 28 of the Pensions Xxx 0000. |
| 34.1.1 | The
Disclosure Letter sets out full details of all investment, deposit and bank accounts
maintained by or on behalf of the Company and of the banks or other financial institutions
at which those accounts are kept. |
| 34.1.2 | A
statement of the credit or debit balances on each of the accounts referred to in paragraph
34.1.1 as at a date not more than two Business Days prior to the date of this Agreement
is included in the Disclosure Documents, together with statements showing and reconciling
those statements with the cash book balances of the Company at the date of this Agreement.
Since such statements there have been no payments out of any such accounts except for
routine payments in the normal and ordinary course of business. |
| 34.2.1 | Full
details of all overdrafts, loans or other financial facilities outstanding or available
to the Company are set out in the Disclosure Letter, whether or not such facilities are
of a type which would be required to be shown in or reflected in the Accounts (including
any indebtedness for moneys borrowed or raised under any acceptance credit, bond, note,
xxxx of exchange or commercial paper, finance, lease, hire purchase agreement, trade
bills (other than those on terms normally obtained) forward sale or purchase agreement
or conditional sale agreement or other transaction having the commercial effect of a
borrowing) and true, complete and accurate copies of all documents relating to such matters
are included in the Disclosure Documents. |
| 34.2.2 | So
far as the Warrantors are aware neither the Sellers nor the Company has done anything
whereby the continuance in full force and effect of the facilities referred to in paragraphs
34.1.1 and 34.2.1 might be affected or prejudiced. |
| 34.2.3 | The
total amount borrowed by the Company does not exceed any limitations on the borrowing
powers of the Company contained in: |
| (a) | the
Company's constitution; or |
| (b) | any
debenture or other deed or document binding on the Company. |
| 34.2.4 | The
Company has not incurred any indebtedness other than in the normal and ordinary course
of business. |
| 34.2.5 | The
Company does not have outstanding, nor has it agreed to create or issue, any loan capital. |
| 34.3 | Guarantees,
indemnities and Encumbrances |
| 34.3.1 | The
Company is not a party to and is not liable (including contingently) under a guarantee,
indemnity or other agreement to secure or incur a financial or other obligation with
respect to another person's obligation. |
| 34.3.2 | No
part of the loan capital, borrowing or indebtedness in the nature of borrowing of the
Company is dependent on the guarantee or indemnity of, or security provided by, another
person. |
| 34.3.3 | The
Company does not have outstanding any Encumbrance or any obligation (including a conditional
obligation) to create any Encumbrance. |
| 34.4.1 | No
event has occurred or been alleged which: |
| (a) | constitutes
an event of default, or otherwise gives rise to an obligation to repay, under an agreement
relating to borrowing or indebtedness in the nature of borrowing (or will do so with
the giving of notice or lapse of time or both); or |
| (b) | will
lead to an Encumbrance constituted or created in connection with borrowing or indebtedness
in the nature of borrowing, a guarantee, an indemnity or other obligation of the Company
becoming enforceable (or will do so with the giving of notice or lapse of time or both), |
and
so far as the Warrantors are aware there is no fact or circumstance which might give rise to any such obligation to repay or to
any such Encumbrance becoming enforceable.
| 34.4.2 | The
Company has not repaid any sum in the nature of borrowings in advance of any due date. |
The
Company has not made a loan which remains outstanding.
The
Company is not liable to repay an investment or other grant or subsidy made to it by a body (including the Department of Business,
Innovation and Skills or any predecessor). So far as the Warrantors are aware no fact or circumstance (including the execution
and performance of this Agreement) exists which might entitle a body to require repayment of, or refuse an application by the
Company for, the whole or part of a grant or subsidy.
| 35.1 | No
order or application has been made or resolution passed for the winding up of the Company
or for the appointment of a provisional liquidator to the Company. |
| 35.2 | No
petition has been presented and no application has been made to court for an administration
order in respect of the Company and no notice of an intention to appoint an administrator
of the Company has been given or filed. |
| 35.3 | No
receiver or receiver and manager has been appointed of the whole or part of the Company's
business or assets. |
| 35.4 | No
voluntary arrangement has been proposed under section 1 Insolvency Xxx 0000 in respect
of the Company. No compromise or arrangement has been proposed, agreed to or sanctioned
under part 26 of the Act in respect of the Company. |
| 35.5 | The
Company is not insolvent or unable to pay its debts within the meaning of section 123
Insolvency Xxx 0000. The Company has not stopped paying its debts as they fall due. |
| 35.6 | No
distress, execution or other process has been levied on an asset of the Company. |
| 35.7 | There
is no unsatisfied judgment or court order outstanding against the Company. |
| 35.8 | None
of the Company's assets have been the subject of a transaction at an undervalue within
the meaning of Part IX or Part VI Insolvency Xxx 0000. |
| 35.9 | No
action is being taken by the Registrar of Companies to strike the Company off the register. |
| 35.10 | The
Company has not suffered any equivalent or analogous proceedings or orders to any of
those described above in this paragraph 35 under the law of any other jurisdiction. |
Neither
the execution and delivery nor the performance of this Agreement or of a document or agreement entered into pursuant to this Agreement
or of any obligation under it will:
| 36.1 | conflict
with or constitute or result in a breach of or default under or require the consent of
a person under: |
| 36.1.1 | any
governmental, public or contractual obligation which is binding upon the Company or any
Seller, including the provisions of any Encumbrance to which the Company or any Seller
is a party or by which any of the Shares or the Company's assets are bound or subject; |
| 36.1.2 | any
court order, judgment, decree, award or injunction which is binding upon the Company
or any Seller or by which any of the Shares or the Company's assets are bound or subject;
or |
| 36.1.3 | an
agreement, arrangement or obligation to which the Company or any Seller is a party or
a legal or administrative requirement in relation to the Company or any Seller in any
jurisdiction; |
| 36.2 | result
in the Company losing the benefit of an asset, licence, grant, subsidy, right or privilege
which it enjoys at the date of this Agreement in any jurisdiction; |
| 36.3 | relieve
any person from any obligation under any contract, agreement or arrangement to which
the Company is a party or entitle any person to terminate any such obligation or any
right or benefit enjoyed by the Company under any such contract, agreement or arrangement; |
| 36.4 | result
in the creation, imposition, crystallisation or the enforcement of any Encumbrance on
or over any of the Company's assets; or |
| 36.5 | make
the Company liable to offer for sale, transfer or otherwise dispose of or purchase or
otherwise acquire any assets, including shares held by it in other bodies corporate under
their articles of association or any agreement or arrangement. |
| 37.1 | The
business of the Company is not carried on by or for the benefit of any person other than
the Company. |
| 37.2 | None
of the Warrantors nor any person connected with any of the Warrantors is, or has at any
time in the five years prior to the date of this Agreement, been involved, engaged or
interested in any other company or business which in any way overlaps or competes with,
or is likely to compete with, or has in any way affected the trading results and performance
of the Company. |
| 37.3 | There
is, and during the three years ending on the date of this Agreement there has been, no
agreement or arrangement (legally enforceable or not) affecting the Company to which
a Seller is or was a party and in which a Seller, a director or former director of the
Company or a person connected with any of them is or was interested in any way, other
than a bona fide contract of employment made between the Company and a Seller or a director
or former director of the Company in the normal and ordinary course of business. |
| 37.4 | There
is no amount owing by the Company to any Seller, director or former director of the Company
(or any person connected with any such Seller, director or former director) nor does
any Seller, director or former director of the Company (or any person connected with
any such Seller, director or former director) have any claims against the Company on
any account whatsoever including claims for compensation for loss of office, unfair dismissal
or redundancy. |
| 37.5 | There
is no amount owing to the Company from any Seller, director or former director of the
Company (or any person connected with any such Seller, director or former director) nor
does the Company have any claims against any Seller, director or former director of the
Company (or any person connected with any such Seller, director or former director) on
any account whatsoever. |
| 38.1 | Save
for Permitted Payments, since the Completion Accounts Date: |
| 38.1.1 | no
transfers of value outside the ordinary course of business (including, without limitation,
dividends, distributions, returns of capital and any acquisition or disposal of assets)
have been made to or on behalf of any of the Sellers (or any person connected with a
Seller) by the Company; |
| 38.1.2 | no
debt or other amount owing to the Company by any of the Sellers (or any person connected
with a Seller) has been waived, forgiven or otherwise released (in whole or in part);
and |
| 38.1.3 | no
indemnity or waiver or discharge of any liability has been granted by the Company in
favour of any of the Sellers (or any person connected with a Seller). |
| 38.2 | The
Company has not entered into any agreement or arrangement with any of the Sellers (or
any person connected with a Seller) in connection with any of the matters referred to
in paragraph 38.1 of this schedule. |
schedule 5
Limitations
on Sellers' liability
| 1.1 | The
Warrantors shall not be liable in respect of a Claim unless the amount that would otherwise
be recoverable from the Warrantors (but for this paragraph 1.1) in respect of that Claim
exceeds £10,000. |
| 1.2 | The
Warrantors shall not be liable in respect of a Claim unless and until the amount that
would otherwise (but for this paragraph 1.2) be recoverable from the Warrantors in respect
of that Claim when aggregated with any other amount or amounts recoverable in respect
of all other Claims (excluding any amounts in respect of a Claim for which the Warrantors
have no liability by virtue of paragraph 1.1 above) exceeds £100,000, in which
event the Warrantors shall be liable for the whole of such amount and not merely the
excess. |
| 1.3 | The
aggregate liability of the Warrantors for all Claims and any Tax Claims shall not exceed
£125,000 and the liability of each Warrantor shall not exceed the consideration
receivable by him. |
| 1.4 | The
liability of MJF Pension Trustees Limited (and its officers and directors) shall be limited
to the value of the assets of the Xxxxxxx J Field SIPPS (X X Xxxxxxx a/c) from time to
time and will cease immediately should Xxxxx Xxxxxxx Xxxxxxx cease to be a member of
the Xxxxxxx J Field SIPPS. |
| 1.5 | The
aggregate liability of each Seller for any claim under clause 6.10 of this Agreement
shall not exceed the consideration received by that Seller. |
| 2.1 | The
Warrantors shall not be liable for a Claim (other than under clause 6.10 of this Agreement)
unless the Buyer gives the Sellers' Representative written notice summarising the nature
of the Claim (insofar as it is known to the Buyer) and as far as is reasonably practicable
an estimate of the amount claimed: |
| 2.1.1 | in
the case of a Claim for breach of any of the Warranties in part 3 of schedule 6 within
a period of seven years of Completion; or |
| 2.1.2 | in
the case of any other Claim or claim pursuant to paragraph 38 of paragraph 4, on or before
the second anniversary of Completion. |
| 2.2 | The
Sellers (including without limitation the Warrantors) shall not be liable for a claim
under clause 6.10 of this Agreement unless the Buyer gives the Sellers’ Representative
written notice summarising the nature of the claim (insofar as it is known to the Buyer)
and as far as is reasonably practicable an estimate of the amount claimed within a period
of six years of Completion. |
| 2.3 | A
Claim notified in accordance with paragraph 2.1 or 2.2, which is not previously satisfied,
settled or withdrawn, shall be deemed to have been withdrawn and waived in full by the
Buyer unless proceedings in respect of that Claim have been both issued and served on
the Sellers' Representative within the period of 12 months starting on the day such claim
was notified to the Sellers' Representative. |
The
Buyer is not entitled to recover damages or otherwise obtain payment, reimbursement or restitution (whether under the Warranties,
Tax Covenant or otherwise) more than once in respect of the same liability or loss.
Nothing
in this Agreement restricts or limits the Buyer's general obligation at law to mitigate any loss or damage which it may incur
in consequence of a matter giving rise to a Claim.
Notwithstanding
any other provision of this Agreement, nothing in this schedule 5 or any other provision of this Agreement shall apply to exclude
or limit the liability of the Warrantors to the extent that a Claim arises or is increased by reason of (or the delay in discovery
of which results from) any fraud or fraudulent misrepresentation or dishonest or wilful misconduct by or on behalf of the Warrantors.
| 6. | PROVISION
MADE IN COMPLETION ACCOUNTS |
The
Warrantors shall have no liability in respect of any Claim if and to the extent that any allowance, provision or reserve was made
in the Accounts or Completion Accounts in respect of the matter or circumstances giving rise to the Claim.
| 7. | RECOVERY
FROM THIRD PARTIES |
| 7.1 | In
the event that the Buyer or the Company is at any time entitled to recover or otherwise
claim reimbursement from a third party in respect of any matter or circumstance giving
rise to a Claim the following provisions shall apply: |
| 7.1.1 | the
liability of the Warrantors in respect of the related Claim shall be reduced by the amount
(if any) actually recovered from the relevant third party (less all reasonable costs,
charges and expenses incurred by the Buyer or the Company in recovering that sum), or
extinguished if the amount recovered exceeds the amount of the relevant Claim; and |
| 7.1.2 | if
the Warrantors make a payment to the Buyer in respect of a Claim and the Buyer or the
Company subsequently recovers from a third party a sum which is referable to that Claim,
the Buyer shall promptly repay to the Warrantors the lower of: |
| (a) | the
amount recovered from such third party (less all reasonable costs, charges and expenses
incurred by the Buyer or the Company in recovering that sum); and |
| (b) | the
amount paid to the Buyer by the Warrantors in respect of the relevant Claim. |
| 7.2 | If
any amount is repaid to the Warrantors in accordance with paragraph 7.1.2, the amount
so repaid shall be deemed to have never been paid by the Warrantors to the Buyer. |
| 7.3 | The
Buyer will and will procure that the Company will: |
| 7.3.1 | use
all commercially reasonable good faith efforts to seek reimbursement from insurance providers
and/or third parties before making any claim; and |
| 7.3.2 | not
intentionally or voluntarily take or neglect to take action to the extent same would
be outside the normal course of business, for the purpose of creating a Claim. |
The
Warrantors shall not be liable in respect of any Claim to the extent that it arises, or its value is increased, as a result of
a change in any law, legislation, rule or regulation (including any new law, legislation, rule or regulation) that comes into
force or otherwise takes effect after the date of this Agreement.
The
Warrantors shall not be liable in respect of any Claim to the extent that the matter or circumstance giving rise to such Claim
arises, occurs or is otherwise attributable to, or the Warrantors’ liability pursuant to such Claim is increased as a result
of:
| 9.1 | any
voluntary act, omission, transaction or arrangement of the Buyer or the Company (or its
directors, employees or agents in each case other than the Warrantors themselves) on
or after Completion except where such act, transaction, omission or arrangement was: |
| 9.1.1 | carried
out or effected pursuant to a legally binding obligation entered into on or before the
date of this Agreement; or |
| 9.1.2 | in
the ordinary course of business of the Company as carried on at Completion; or |
| 9.2 | any
voluntary act, omission, transaction or arrangement carried out at the request or with
the consent of the Buyer before Completion; or |
| 9.3 | any
change in the accounting bases, policies, practices or methods applied in preparing any
accounts or valuing any assets or liabilities of the Company introduced or having effect
after Completion (other than to the extent necessary to comply with the law or UK GAAP
applying and in force on or prior to Completion). |
| 10. | CONDUCT
OF THIRD PARTY CLAIMS |
| 10.1 | The
provisions of this paragraph 10 shall apply in the event that any third party brings
or makes (or threatens to bring or make) any claim, demand, action or proceedings against
any of the Buyer or the Company which may reasonably be considered likely to give rise
to a Claim (a Third Party Claim). |
| 10.2 | In
the event of a Third Party Claim, the Buyer shall: |
| 10.2.1 | as
soon as reasonably practicable give written notice of the Third Party Claim to the Warrantors,
specifying the nature of the Third Party Claim; |
| 10.2.2 | keep
the Warrantors informed of the progress of, and all material developments in relation
to, the Third Party Claim; |
| 10.2.3 | provide
the Warrantors (at their cost) with copies of all material information and correspondence
relating to the Third Party Claim; and |
| 10.2.4 | give
(and cause each member of the Buyer's Group to give) the Warrantors and their professional
advisers access at reasonable times (and on reasonable prior notice) to its premises
and personnel, and to any relevant assets, accounts, documents or records within its
control, for the purposes of enabling the Warrantors to assess the Third Party Claim
and to exercise their rights under this paragraph 10.2. |
The
Buyer shall not have any right of set-off (howsoever arising) in respect of any Claim or claim under the Tax Covenant and all
sums payable by the Buyer to the Sellers under this Agreement shall be paid in full without set-off, counterclaim or other deduction.
The
Buyer agrees that rescission shall not be available as a remedy for any breach of this Agreement and the Buyer shall not be entitled
to rescind or terminate this Agreement.
schedule 6
Taxation
Part 1–
Definitions and interpretation
In
this schedule, in addition to the words and expressions defined in clause 1.1, the following definitions shall apply:
Accounts
Relief
any
Relief which was:
| (a) | treated
as an asset of the Company in the Completion Accounts; or |
| (b) | taken
into account in computing (and so reducing or eliminating) any provision for deferred
tax which appears in the Completion Accounts or which but for such Relief would have
appeared in the Completion Accounts; |
and
for this purpose Accounts Relief shall include any Relief, which the Company has assumed is available to it and has been utilised
in the Completion Accounts whether or not at the time of such utilisation the Company was actually entitled to any such Relief;
Assessment
for Tax
any
assessment notice demand letter or other document issued or action taken by or on behalf of any person, authority or body or the
submission of any form, return or computation relating to Tax from which it appears that the Warrantors are or may be subject
to a Tax Claim;
Auditors
the
auditors or, in the absence of auditors, the accountants for the time being of the Company;
Buyer's
Tax Group
the
Buyer and any other company or companies (other than the Company) which are at any time treated as members of the same group as,
or otherwise connected or associated with, the Buyer for any Tax purposes;
CTIP
the
Corporation Tax (Instalment Payment) Regulations 1998 (SI 1998/3175);
Event
any
act, transaction omission or change in circumstance (whether or not the Company is a party to such act, transaction or omission)
and includes (without limitation) the sale and purchase of the Shares pursuant to this Agreement, any change in the residence
of any person for the purposes of Tax, the death or dissolution of any person, the expiry of any time period, membership of or
ceasing to be a member of any group or partnership, the accrual or receipt of any income, profit or gains, the declaration or
payment of any dividend or other distribution, failure to distribute, any transfer, payment, loan or advance, the incurring of
any loss or expenditure or any other event which is treated or is otherwise regarded as having occurred for the purposes of Tax;
Group
Relief
any
relief surrendered or claimed or capable of being surrendered or claimed pursuant to part 5 CTA 2010 or pursuant to any other
legislation available for use between members of the same group of companies for Tax purposes;
income,
profits or gains
shall
include income, profits or gains (including capital gains) of any description or from any source and income, profits, or gains
which are deemed to be earned accrued or received for any Tax purpose;
Loss
in
relation to a Relief, the reduction, modification, loss, clawback, counter-action, disallowance, cancellation, non-availability
or non existence (in whole or in part) of that Relief or right to repayment of Tax or a failure to obtain Accounts Relief or to
receive the benefit of a right to repayment of Tax to which the Company was or assumed it was entitled and Lost shall be construed
accordingly;
New
Relief
any
Relief which arises after the Completion Accounts Date in the ordinary course of business, any Relief which arises after Completion
and any Relief at any time to the Buyer or any member of the Buyer's Tax Group;
PAYE
the
mechanism prescribed by Tax Legislation for the charge, collection, assessment, recovery and making of deductions from or in respect
of the following:
| (a) | sums
to which part 11 of ITEPA 2003 and regulations under section 684 of ITEPA 2003 apply,
and |
| (b) | Class
1, Class 1A and Class 1B contributions referred to in section 1(2) of the Social Security
Contributions and Benefits Xxx 0000; |
Relief
any
loss, relief, allowance, exemption, set-off, deduction, credit, or relief from or against or available in respect of Tax or in
the computation of income profits or gains for the purposes of Tax or any right to a repayment of Tax including any repayment
supplement;
SDLT
stamp
duty land tax;
SDRT
stamp
duty reserve tax;
Tax
all
forms of tax, duty, impost, levy, withholding, deduction, governmental charge (whether national or local) in the nature of tax
(but for the avoidance of doubt excludes uniform business rates, water rates, community charge and council tax) whenever created
enacted or imposed and whether of the United Kingdom or elsewhere and any amount payable to any person or Tax Authority as a result
of any enactment relating to Tax together with all related penalties, fines, charges, surcharges, costs and interest including
(without limitation) fines, charges, surcharges, costs and interest relating to a failure to provide any return or information
or register for the purpose of any such Tax;
Tax
Authority
HM
Revenue and Customs or any other governmental, statutory, state, regional, provincial or local government authority body or official
(whether within or outside the United Kingdom) involved in the assessment, collection or administration of Tax (and any predecessor
to such authority or body);
Tax
Claim
any
claim under the Tax Covenant or for breach of any of the Tax Warranties;
Tax
Legislation
any
primary or secondary statute, instrument, enactment, order, law, by-law or regulation making any provision for or in relation
to Tax;
Tax
Liability
any
liability to make an actual payment of or an amount in respect of Tax, whether or not such liability is also or alternatively
a liability of or chargeable against or attributable to, any other person and whether or not the Company shall or may have a right
of recovery or reimbursement against any other person;
Tax
Saving
the
reduction in any actual liability of the Company in respect of corporation tax (for which the Warrantors would not have otherwise
been liable under this Tax Covenant) through the use of a Relief arising solely as a result of a Tax Liability in respect of which
the Warrantors have made payment in full under this Tax Covenant;
VAT
Regulations
the
Value Added Tax Regulations 1995 (SI 1995/2518).
| 2.1 | Reference
to the result of any Event or Events on or before Completion includes the combined result
or results of any two or more Events the first or some or part of which took place on
or before Completion provided that at least one Event which takes place before Completion
occurs outside the ordinary course of business of the Company as carried on at Completion
and the Event or Events which take place after Completion occur inside the ordinary course
of business of the Company as carried on at Completion or pursuant to a legally binding
obligation of the Company incurred prior to Completion. |
| 2.2 | For
the purposes of this Agreement, where any document is not (or is not properly) stamped,
the stamp duty (together with any accrued interest and/or penalties) required to be paid
in order that such document be fully and properly stamped shall, notwithstanding that
the Company may be under no legal obligation to stamp that document, be treated as a
liability of the Company arising on the date when the document was executed and "Tax
Liability" shall be construed accordingly. |
| 2.3 | Abbreviated
references to Acts in this agreement have the meaning given to them by section 1174 of
the CTA 2010 or section 1312 CTA 2009. |
| 2.4 | Without
limiting the generality of the expression, reference in this schedule to anything “in
the ordinary course of business” does not include: |
| 2.4.1 | an
Event which results in the Company becoming liable for Tax for which it is not primarily
liable; |
| 2.4.2 | the
acquisition, disposal or supply or deemed acquisition, disposal or supply of any asset,
goods, service or facility (including a loan of money or the letting, hiring or licensing
of tangible property) in a transaction which is not entered into at arm’s length; |
| 2.4.3 | the
making of a distribution or deemed distribution for Tax purposes; |
| 2.4.4 | the
creation, cancellation or reorganisation of any share or loan capital or any company
becoming or ceasing to be a member of a group of companies for any Tax purpose other
than any Events envisaged by this agreement; |
| 2.4.5 | the
failure by the Company to deduct, charge, recover or account for Tax; |
| 2.4.6 | an
Event giving rise to a liability or potential liability under Part XVII ICTA (tax avoidance),
section 29 or section 36 TMA 1970, schedule 9A VATA 1994 (anti-avoidance provisions;
groups) or Part V of schedule 18 FA 1998 (Revenue determinations and assessments) or
schedule 28AA ICTA (provision not at arm’s length) or Part 4 of TIOPA 2010 (Transfer
pricing); |
| 2.4.7 | a
transaction or arrangement which includes, or a series of transactions or arrangements
which includes, any step or steps having no commercial or business purpose apart from
the avoidance of a liability to Tax; and |
| 2.4.8 | any
failure to pay any Tax Liability arising before Completion, to the extent that such failure
give rise to any interest, fine, penalty, charge or surcharge in connection with that
Tax Liability. |
Part 2
– Tax Covenant
| 1.1 | Subject
as provided in this schedule, the Warrantors hereby jointly and severally covenant with
the Buyer to pay to the Buyer an amount equal to: |
| 1.1.1 | any
Tax Liability of the Company which has arisen or arises as a consequence of or in connection
with any Event which occurred on or before Completion; |
| 1.1.2 | any
Tax Liability of the Company which would have arisen (and in respect of which the Warrantors
would have been liable under this schedule) but for the setting-off of an Accounts Relief
or a New Relief against that Tax Liability or (as the case may be) against the income,
profits or gains which would have given rise to that Tax Liability; |
| 1.1.3 | any
Accounts Relief Lost or (where the Accounts Relief Lost was a deduction from or set-off
against income, profits or gains) the Tax which would (on the basis of the rates of Tax
current at the date of the Loss and assuming that the Company would have been able to
utilise fully that Accounts Relief) have been saved but for the Loss; |
| 1.1.4 | any
liability of the Company to make a payment (or to surrender a Relief) under any indemnity,
covenant, agreement, guarantee or charge entered into by the Company on or before Completion
and pursuant to which the Company has agreed to pay an amount in respect of (or surrender
a Relief to reduce or extinguish) any Tax Liability of any other person in which case
the Tax Liability shall be the amount of such payment (or the value of the Relief as
the case may be); |
| 1.1.5 | any
Tax Liability of the Company which has arisen or arises as a consequence of or in connection
with any Event which occurred on or before Completion and as a result of any person (other
than the Company) failing to discharge or pay any liability for Tax; |
| 1.1.6 | any
Tax Liability whenever arising, including liability for payments in respect of Tax, which
arises solely as a result of the relationship (before Completion) for Tax purposes of
the Company with any person other than a member of the Buyer's Tax Group; |
| 1.1.7 | any
Tax Liability of the Company or the Buyer in respect of Inheritance Tax which: |
| (a) | is
at, or becomes after, Completion as a result of a transfer of value (or deemed transfer
of value) on or before Completion, a charge on any of the shares or assets of the Company
or gives rise to a power to sell, mortgage or charge any of the shares or assets of the
Company; or |
| (b) | arises
as a result of a transfer of value occurring or being deemed to occur on or before Completion
(whether or not in conjunction with the death of any person whenever occurring) which
increased or decreased the value of the estate of the Company; |
| 1.1.8 | any
Tax Liability which arises at any time and requires the Company to account for income
tax or national insurance contributions in respect of any option or other right to acquire
securities granted on or before Completion by the relevant group member or any other
person or in respect of the exercise of such option or right or in respect of any employment-related
securities (as defined for the purposes of part 7 ITEPA 2003) acquired whether or not
as a result of the exercise of such a right or option or the sale of such employment
related securities; |
1.1.9
any Tax Liability of the Company arising in connection with or by reference to Part 7A of ITEPA 2003 (introduced by
the Finance Xxx 0000 with effect from 6 April 2011) including any liability arising at any time as a consequence of or in respect
of or by reference to any payments or loans made to, any assets made available or transferred to, or any assets earmarked, however
informally, for the benefit of, any employee or former employee of the Company or any Subsidiary, or for the benefit of any relevant
person, by an employee benefit trust or another third party where the arrangement giving rise to the charge was entered into at
a time when the third party was acting on the instructions of, or for the benefit of, the Warrantors or an associate of any of
the Warrantors;
1.1.10
any Tax Liability of the Company arising in connection with or related to underpayments of PAYE in connection with
any pension scheme contributions of, or on behalf of, the Company's employees which occurred on or before Completion;
| 1.1.11 | any
Tax Liability of the Company arising in connection with or by reference to any payments
to the Warrantors under this agreement (other than Permitted Payments); |
| 1.1.12 | any
costs and expenses properly incurred by the Buyer and/or the Company in connection with: |
| (a) | any
liability or amount for which the Warrantors are liable under any of paragraphs 1.1.1
to 1.1.11 inclusive, including the costs and expenses of investigating, assessing or
contesting any Assessment for Tax in respect of such liability or amount; or |
| (b) | taking
or defending any action in relation to a Tax Claim such costs and expenses to include
reasonable compensation for time spent on such matters by employees of the Buyer or the
Company. |
| 1.2 | In
determining for the purposes of this schedule whether a charge on or a power to sell,
mortgage or charge any of the shares or assets of the Company exists at any time, the
fact that any Tax is not yet payable or may be paid by instalments shall be disregarded
and such Tax shall be treated as becoming due and the charge or power to sell, mortgage
or charge as arising on the date of the transfer of value or other Event on or in respect
of which it becomes payable or arises. |
| 1.3 | The
provisions of section 213 (Refund by instalments) IHTA 1984 shall not apply to any payment
falling to be made under this schedule. |
| 2. | Limitations
on the Warrantors' Liability |
| 2.1 | The
covenants contained in paragraph 1 shall not extend to any Tax Liability or other amount
payable by the Warrantors under this schedule to the extent that: |
| 2.1.1 | such
Tax Liability or other amount was paid or discharged on or before the Completion Accounts
Date; |
| 2.1.2 | specific
provision or reserve (other than by way of a provision for deferred tax) in respect of
that Tax Liability or other amount was made in the Completion Accounts; |
| 2.1.3 | such
Tax Liability or other amount arises in the ordinary course of business of the Company
between the Completion Accounts Date and Completion but only to the extent that the income,
profits or gains arising during that period have been retained by the Company at Completion
save for Permitted Payments; |
| 2.1.4 | such
Tax Liability would not have arisen but for a voluntary act, transaction or omission
of the Company carried out after Completion which the Company knew or ought reasonably
to have known would give rise to such liability but excluding any act: |
| (a) | carried
out or omitted pursuant to a legally binding obligation entered into by the Company on
or before Completion or imposed on the Company by any regulation or requirement having
the force of law or for the purpose of avoiding or mitigating a penalty which may be
imposed by such legislation or requirement; |
| (b) | which
consists of communicating information to any Tax Authority or which consists of any disclosure
to a Tax Authority or other government, state, municipal, local or federal regulatory
authority; |
| (c) | occurring
in the ordinary course of business of the Company; |
| (d) | carried
out or occurring with the written approval of the Sellers or pursuant to this agreement
or any document executed pursuant to this agreement; or |
| (e) | which
consists of the presentation by the Company of any document for stamping; |
| 2.1.5 | such
Tax Liability arises or is increased as a direct result of: |
| (a) | any
change in Tax Legislation or the published practice of any Tax Authority; or |
| (b) | any
increase in the rate of Tax; |
(in
each case enacted after Completion, with retrospective effect).
| 2.1.6 | recovery
(less costs and expenses) has been made by the Buyer under the Agreement in respect of
the same subject matter; |
| 2.1.7 | such
Tax Liability or other amount arises or is increased or any provision or reserve in respect
of the Tax Liability in the Completion Accounts is insufficient as a result of any change
after Completion in the bases, methods or policies of accounting of the Company except
in order to comply with generally accepted accounting principles in force at Completion; |
| 2.1.8 | such
Tax Liability or other amount would not have arisen or would have been reduced or eliminated
but for any claim, election, surrender or disclaimer made or notice or consent given
or any other thing done, after Completion (other than one, the making, the giving or
doing of which is required pursuant to the terms of this agreement or was taken into
account in computing any provision for Tax in the Completion Accounts) under, or in connection
with the provisions of any enactment or regulation relating to Tax by the Company or
any member of the Buyer’s Group save where such claim, election, surrender, disclaimer,
notice, consent or other thing done is required to comply with any legislation in force
at Completion; |
| 2.1.9 | such
Tax Liability or other amount would not have arisen or would have been reduced or eliminated
but for the failure or omission by the Company or any member of the Buyer’s Group
to make any claim, election, surrender or disclaimer or give any notice, or consent or
do any other thing under or in connection with, the provision of any enactment or regulation
relating to Tax at Completion the making, giving or doing of which was taken into account
in computing any provision in the Completion Accounts and the requirement to make such
claim, election, surrender or disclaimer or give notice, consent or other thing was notified
by the Warrantors to the Buyer at least 20 Business Days before the expiry of any deadline
relevant to the measure in question; |
| 2.1.10 | any
Relief (other than an Accounts Relief or a New Relief) is available to the Company to
set against or otherwise mitigate the Tax Liability or other amount (or is for no consideration
made available by the Sellers to the Company); |
| 2.1.11 | such
tax Liability or other amount would not have arisen but for a cessation or any major
change in the nature or conduct of any trade carried out on or by the Company being a
change or cessation occurring on or after Completion; |
| 2.1.12 | such
Tax Liability or other amount has been made good by insurers other than W&I insurance
or otherwise compensated for without cost to the Buyer or the Company; |
| 2.1.13 | such
Tax Liability is one of interest and/or penalties arising under the Corporation Tax (Instalment
Payment) Regulations 1998 (SI 1998/3175) as a result of or in consequence of income,
profits or gains earned accrued or received after Completion insofar as the relevant
underpayment was an underpayment due to a bona fide estimate made before Completion of
the amount of income, profits or gains by reference to which payments of corporation
tax were calculated; or |
| 2.1.14 | such
Tax Liability or other amount consists of stamp duty or stamp duty reserve tax payable
on the transfer or agreement to transfer the Shares pursuant to the Agreement. |
| 2.2 | None
of the limitations on liability or other exclusions provided for in this paragraph 2
or paragraph 3 or in the Agreement as far as applicable to the Tax Warranties or the
Tax Covenant shall apply where the Tax Liability is attributable to conduct described
in paragraph 43 of schedule 18 to the FA 1998 or arises from a failure to comply with
an obligation under section 309, 310 or 313 FA 2004 to disclose information about a Tax
avoidance scheme to which the Company has been a party. |
The
Warrantors shall not be liable in respect of a Tax Liability unless they have received from the Buyer written notice of the Assessment
for Tax which relates to that Tax Liability within seven years from Completion.
The
Buyer shall in its absolute discretion decide whether to make a claim under the Tax Covenant, the Tax Warranties or both.
Subject
to paragraphs 1 to 3, the Buyer shall be entitled to make a claim under this Tax Covenant notwithstanding that the Buyer had knowledge
(whether actual constructive or implied) on or before Completion of that Tax Liability (or the matter giving rise to the Tax Liability).
| 6.1 | If,
at the Warrantors' request and expense, the Auditors determine that the Company has obtained
a Tax Saving the Buyer shall on demand repay to the Warrantors the lesser of: |
| 6.1.1 | the
amount of the Tax Saving (as determined by the Auditors); and |
| 6.1.2 | the
amount paid by the Warrantors in respect of the Tax Liability which gave rise to the
Tax Saving, less any reasonable costs and expenses incurred by the Buyer or the Company
in respect of that Tax Liability. |
| 6.2 | The
Company will be entitled to use, in priority to any Relief which gives rise to a Tax
Saving, any other Relief available to it (including by way of surrender by another company
to it) to reduce or eliminate any liability to make an actual payment of corporation
tax. |
| 6.3 | The
Company will not obtain a Tax Saving until the last date upon which it would have been
obliged to make an actual payment of corporation tax which has been reduced or eliminated
in order to avoid interest thereon. |
| 6.4 | In
determining whether the Company has obtained a Tax Saving, the Auditors will act as experts
and not as arbitrators and their determination will (in the absence of manifest error)
be conclusive and binding on the parties. |
| 6.5 | If
the Buyer becomes aware that there is or may be a Tax Saving it shall (or shall procure
that the Company shall) as soon as reasonably practicable inform the Warrantors of the
fact and the amount of the Tax Saving. |
| 7. | Deductions,
Withholdings and Tax |
With
reference to any payments made by the Warrantors under this schedule:
| 7.1 | Save
only as may be required by law all sums payable by the Warrantors shall be paid free
of all deductions or withholdings whatsoever or of any rights of counterclaim or set-off. |
| 7.2 | If
any deduction or withholding is required by law to be made from any payment, or (if ignoring
any available Relief) the Buyer is subject to Tax in respect of any payment, the Warrantors
shall pay such additional sum as is necessary to ensure that the net amount received
and retained by the Buyer (after taking account of such deduction or withholding or Tax)
will leave the Buyer with the same amount as it would have been entitled to receive in
the absence of any such requirement to make a deduction or withholding for or payment
of Tax. |
| 8. | Amount
of Tax Liability |
The
amount of any Tax Liability or other amount shall be as follows:
| 8.1 | to
the extent that a Tax Liability or other amount involves a liability of the Company to
make an actual payment or increased payment of Tax or in respect of Tax, the amount of
such payment or increased payment; |
| 8.2 | to
the extent that a Tax Liability or other amount involves a liability of the Company to
make a payment or increased payment of Tax or in respect of Tax which would have arisen
but for being satisfied, avoided or reduced by any Accounts Relief or New Relief, the
amount of Tax or other amounts which the Accounts Relief or New Relief in fact saves; |
| 8.3 | to
the extent that a liability involves the Loss of any Accounts Relief (other than a right
to a repayment of Tax) the amount of Tax or other amounts which the use of the Accounts
Relief would have saved had the Accounts Relief been used by the Company in the period
in which the relevant Tax Authority first disallows, withdraws, claws-back, reduces,
restricts or modifies the Accounts Relief (on the assumption that the Company would have
had sufficient profits or was otherwise in a position actually to use the Accounts Relief);
and |
| 8.4 | to
the extent that liability involves the Loss of a Relief consisting of a right to a repayment
of Tax, the amount of the repayment so Lost. |
Where
the Warrantors become liable to make a payment pursuant to the provisions of this schedule, the due date for the making of that
payment in cleared funds shall be the date falling ten Business Days after the date on which the Company or (as the case may be)
the Buyer has notified the Warrantors of the amount of the payment required to be made or, if later:
| 9.1 | in
the case of a liability within paragraphs 1.1.1, 1.1.5, 1.1.6, 1.1.7, 1.1.8, 1.1.9, 1.1.10
and 1.1.11 of this part the day before the last date on which the payment of Tax in question
may be paid to the relevant Tax Authority in order to avoid incurring a liability to
interest or a charge fine or penalty in respect of that Tax Liability; or |
| 9.2 | in
the case of the Loss or set-off of a Relief (being a right to repayment of Tax) within
paragraphs 1.1.2 or 1.1.3 of this part the date on which such repayment would have been
received but for the Loss or set-off; or |
| 9.3 | in
the case of the Loss or set-off of a Relief (other than a right to repayment of Tax)
within paragraphs 1.1.2 or 1.1.3 of this part the last date on which the Tax Liability
which (but for the Loss or set-off) would have been payable could have been paid to the
relevant Tax Authority in order to avoid incurring a liability to interest or a charge
fine or penalty in respect of that Tax Liability; or |
| 9.4 | in
the case of a liability within paragraph 1.1.4 of this part the day on which the payment
giving rise to the liability falls due; |
| 9.5 | in
the case of a liability within paragraph 1.1.12 of this part the second Business Day
before such costs and expenses become due and payable or are otherwise incurred by the
Buyer and/or the Company. |
| 10. | Interest
on Late Payments |
If
any monies due under this schedule are not paid in full on the due date for payment, they will bear interest at a rate 4% per
annum above the base lending rate of the Bank from time to time in force, such interest to be paid monthly in arrears on the last
business day of each month. Interest will accrue and be payable both before and after judgment and, if not paid when due, will
be compounded and itself bear interest in accordance with this paragraph 10.
Any
payment by the Warrantors under this schedule shall (so far as possible) be treated as a reduction in the consideration paid for
the Shares provided that nothing in this paragraph 11 shall limit or exclude the liability of the Warrantors under this Agreement.
| 12.1 | If
the Buyer or the Company receives an Assessment for Tax which is likely to give rise
to a liability of the Warrantors under this Tax Covenant, the Buyer shall (or shall procure
that the Company shall) as soon as reasonably practicable and in any event not later
than 10 Business Days before the expiry of any deadline relevant to responding to or
appealing against an Assessment for Tax give notice of such Assessment for Tax to the
Sellers' Representative giving details of the nature and quantum of the Assessment for
Tax insofar as available at the time notice is given (but for the avoidance of doubt,
such notice shall not be a condition precedent to the liability of the Warrantors under
this Tax Covenant). |
| 12.2 | If
the Warrantors indemnify and secure the Company and the Buyer and all other members of
the same group of companies as the Buyer to the reasonable satisfaction of the Buyer
against all losses, costs, damages and expenses (including interest on overdue Tax and
additional Tax) which may be incurred as a result, the Buyer shall (and shall procure
that the Company shall), at the Warrantors' cost and expense in accordance with any reasonable
instructions of the Sellers' Representative promptly given by notice to the Buyer seek
to avoid, dispute, resist, appeal, compromise or defend such Assessment for Tax provided
always that: |
| 12.2.1 | the
Warrantors agree to pay to the Buyer and the Company an amount equal to any costs and
expenses (excluding recoverable VAT) which are incurred by either the Buyer and/or the
Company in taking such action (together with the Tax which is the subject matter of the
claim (the Disputed Tax) where it is necessary to pay the Disputed Tax in order
to resist or otherwise deal with the Tax Claim) in cleared funds within 15 Business Days
after service by the Buyer to the Warrantors of notice that such costs and expenses have
been incurred together with a copy of the relevant invoice (or, in relation to the Disputed
Tax, at least 2 Business Days before the date on which the Disputed Tax is required to
be paid). For the purpose of this paragraph 12.2.1, “incurred” means the
earlier of the date on which payment has been made in respect of those costs and expenses
or the date on which an invoice has been received in respect of those costs or expenses
by either the Buyer and/or the Company; |
| 12.2.2 | the
Buyer and the Company shall be free to take such action as they may in their absolute
discretion think fit and without prejudice to their rights and remedies under this schedule
if, having given the Sellers' Representative notice pursuant to paragraph 12.1 the Buyer
has not, within 10 Business Days of service of such notice received instructions from
the Sellers' Representative , in accordance with the provisions of this paragraph 12.2
to resist the Assessment for Tax; |
| 12.2.3 | the
Buyer and the Company shall not be obliged to comply with any instruction of the Sellers'
Representative which involves contesting any Assessment for Tax before any court or other
appellate body (excluding the Tax Authority in question) unless the Warrantors provide
the Buyer with the written opinion of tax counsel of at least ten years' call in the
relevant practice area to the effect that such contest will, on the balance of probabilities,
be successful; |
| 12.2.4 | the
Buyer and the Company shall not in any event be obliged to comply with any instruction
of the Sellers' Representative to make a settlement or compromise of an Assessment for
Tax which is the subject of a dispute or agree any matter in the conduct of such dispute
which is likely materially to increase the future liability of the Company or the Buyer
in respect of Tax or which the Buyer reasonably considers will be materially prejudicial
to the business or Tax affairs of the Company or to which the Buyer objects on any other
reasonable ground; or |
| 12.2.5 | the
Buyer and the Company shall be entitled to admit, compromise, settle, discharge or otherwise
deal with an Assessment for Tax on such terms as it, in its absolute discretion, thinks
fit |
| (a) | if
the deadline prescribed by Tax Legislation for making an appeal against the Assessment
for Tax or any decision of a court or tribunal in respect of such Assessment for Tax
has expired; |
| (b) | if
any Tax Authority alleges conduct described in paragraph 43 of schedule 18 to the FA
1998 in relation to any Tax Liability of the Company or there is a failure to comply
with sections 309, 310 or 313 FA 2004; |
| (c) | if
any action or step is taken or legal proceedings are commenced to put any of the Warrantors
into bankruptcy or appoint an interim receiver pursuant to section 286 Insolvency Act
1986 or to enter into arrangements with their creditors pursuant to part VIII Insolvency
Xxx 0000; or |
| (d) | the
Warrantors have not paid an amount equal to the costs and expenses (excluding recoverable
VAT) and/or the Disputed Tax (if relevant) incurred by either the Buyer and/or the Company
in accordance with paragraph 12.2.1 within the required time for payment. |
| 12.3 | Neither
the Company nor the Buyer shall be required to delegate the conduct of any action to
be taken to the Warrantors or any professional adviser or agent of the Warrantors. |
| 12.4 | The
Buyer shall keep the Sellers' Representative informed of the progress of any dispute
or appeal of any Assessment for Tax conducted by the Buyer at the request of the Sellers'
Representative and shall provide the Sellers' Representative as soon as reasonably practicable
with copies of all material correspondence and other documents relating to such dispute
or appeal. |
| 12.5 | The
provisions of this paragraph 12 shall apply mutatis mutandis to any Assessment for Tax
or breach of warranty which is likely to give rise to a claim under the Tax Warranties. |
| 13. | Recovery
from Third Parties |
| 13.1 | If
the Buyer or the Company recovers from any other person (including a Tax Authority but
excluding the Buyer, any member of the same group of companies as the Buyer or any officer
or employee of any such company) any amount which is referable to a Tax Liability in
respect of which the Warrantors have made a payment under this schedule, the Buyer will
repay to the Warrantors the lesser of: |
| 13.1.1 | the
sum recovered (less any reasonable costs and expenses incurred by the Company and/or
the Buyer or any other member of the same group of companies as the Buyer in recovering
that sum and any tax payable on the receipt of the same); and |
| 13.1.2 | the
amount paid by the Warrantors pursuant to the provisions of this schedule less any amount
paid in respect of costs and expenses under paragraph 1.1.12 of this part in respect
of the Tax Liability and any amount previously repaid to the Warrantors under any provision
of this agreement or otherwise. |
| 13.2 | If
the Buyer or the Company becomes aware that it is entitled to recover any amount mentioned
in paragraph 13.1, the Buyer will as soon as reasonably practicable give notice of that
fact to the Warrantors and provided that the Warrantors indemnify and secure the Buyer
or the Company and all other members of the same group of companies as the Buyer to the
reasonable satisfaction of the Buyer against all losses, costs, damages and expenses
(including additional Tax) which may be incurred thereby, the Buyer shall procure that
the Company, at the Warrantors' cost and expense shall take such action as the Warrantors
may reasonably and promptly request to effect such recovery. |
| 13.3 | The
action which the Warrantors may request the Company to take under paragraph 13.2 does
not include: |
| 13.3.1 | any
action which the Buyer reasonably considers to be materially prejudicial to the business
or Tax affairs of the Buyer and/or the Company or any other member of the same group
of companies as the Buyer or to which the Buyer objects on any other reasonable ground;
or |
| 13.3.2 | any
action where any Tax Authority alleges conduct described in paragraph 43 of Schedule
18 to FA 1998 in relation to any Tax Liability of the Company; or |
| 13.3.3 | allowing
the Warrantors to undertake conduct of any action necessary to effect the recovery of
the amount in question. |
| 13.4 | The
Warrantors agree to pay to the Buyer and the Company an amount equal to any reasonable
costs and expenses (excluding recoverable VAT) which are incurred by either the Buyer
and/or the Company in taking such action as is required by the Warrantors pursuant to
paragraph 13.2 in cleared funds within 10 Business Days after service by the Buyer to
the Warrantors of notice that such costs and expenses have been incurred together with
a copy of the relevant invoice. For the purpose of this paragraph 13.4 “incurred”
means the earlier of the date on which payment has been made in respect of those costs
and expenses or the date on which an invoice has been received in respect of those costs
or expenses by either the Buyer and/or the Company. |
| 13.5 | For
the purpose of this paragraph any costs or expenses incurred at the request or with the
acquiescence of the Warrantors shall be deemed to be reasonably incurred. |
| 14.1 | Any
liability of the Warrantors under this schedule or for breach of any of the Tax Warranties
may in whole or in part be released, compounded or compromised by the Buyer in its absolute
discretion or time or indulgence may be given by the Buyer in its absolute discretion
as regards the Warrantors who are under liability without in any way prejudicing or affecting
its rights against the Warrantors under the same or a like liability whether joint and
several or otherwise. |
| 14.2 | No
delay or omission of the Buyer in exercising any right, power or privilege under this
schedule or in relation to the Tax Warranties shall impair such right, power or privilege
or be construed as a waiver of such right, power or privilege and any single or partial
exercise of any such right, power or privilege shall not preclude the further exercise
of any right, power or privilege. |
The
Warrantors shall not plead any of the provisions of the Limitation Xxx 0000 in defence against a Tax Claim.
Part 3
– Tax Warranties
| 1.1 | The
Company has duly and properly made all claims disclaimers elections and surrenders and
given all notices and consents and done all other things in respect of Tax the making
giving or doing of which was assumed to have been made for the purposes of the Accounts.
All such claims, disclaimers, elections, surrenders, notices, consents and other things
have been accepted as valid by the relevant Tax Authority and none have been revoked
or otherwise withdrawn or so far as the Warrantors are aware are likely to be revoked
or otherwise withdrawn. There are no claims, disclaimers, elections, notices or consents
where the time limit for action required expires within three months of the date of this
Agreement. |
| 1.2 | The
Company has duly and punctually made or submitted all returns, computations, notices,
registrations and accounts which ought to have been made for the purposes of Tax (including
all returns, documents or information in respect of PAYE and National Insurance) and
all such returns (and all other information supplied to any Tax Authority for such purpose): |
| 1.2.1 | were
at the time when they were submitted complete, correct and up-to-date and remain complete
and correct in all material respects; |
| 1.2.2 | have
not been disputed or resulted in a request for further information by the Tax Authority
concerned (other than routine enquiries concerning the corporation tax computations of
the Company, all of which have now been satisfactorily answered); and |
| 1.2.3 | so
far as the Warrantors are aware there are no facts or circumstances likely to give rise
to any dispute, discrepancy or claim relating to Tax in respect of any financial period
prior to the date of this Agreement. |
| 1.3 | The
Tax affairs of the Company have never been the subject of investigation or enquiry by
any Tax Authority and no Tax Authority has indicated that it intends to investigate the
Tax Affairs of the Company. So far as the Warrantors are aware there are no facts or
circumstances likely to give rise to any such investigation. |
| 1.4 | The
Company has duly and punctually paid all Tax which it has become liable to pay and is
not, nor has it been under any liability to pay any fine, charge, surcharge penalty or
interest in connection with any Assessment for Tax and there is no Tax the payment of
which has been postponed or otherwise affected by agreement, concession, dispensation
or arrangement (whether formal or informal) with the relevant Tax Authority or by virtue
of any right under the Tax Statutes or the practice of any Tax Authority. |
| 1.5 | The
Company has not been concerned in any transaction to which any of the following provisions
have been or will be applied: |
| 1.5.1 | sections
135 to 137 (inclusive) (Company reconstructions) TCGA 1992; |
| 1.5.2 | sections
733 to 742 CTA 2010 (counteraction of corporation tax advantage); |
| 1.5.3 | section
139 (Reconstruction involving transfer of business) TCGA 1992; |
| 1.5.4 | section
192 (tax exempt distributions) TCGA 1992 and sections 1073 to 1099 CTA 2010 (demergers); |
| 1.5.5 | sections
1033 to 1048 CTA 2010 (purchase of own shares); |
| 1.5.6 | part
18 CTA 2010 (transactions in land); and |
| 1.5.7 | part
00 XXX 0000 (xxxx and lease-back etc.). |
| 1.6 | The
Company has (to the extent required by law) preserved and retained in its possession
complete and accurate records relating to its Tax affairs (including PAYE and National
Insurance records, VAT records and records relating to transfer pricing) and has sufficient
records relating to past events to calculate the profit, gain, loss, balancing charges
or allowances or any reliefs (all for Tax purposes) which would arise on any disposal
or on the realisation of any assets owned at the Accounts Date or acquired since that
date. |
| 1.7 | The
Disclosure Letter contains full details, including any applicable time limits for the
making thereof, of every claim, election or disclaimer taken into account in any returns
or in the Accounts which are still required to be made by the Company. |
| 2.1 | Provision
has been made and shown (or disclosed of by way of note) in the Accounts for deferred
Tax or any contingent liability to Tax. |
| 2.2 | Since
the Accounts Date no disposal or other event has taken place which, had it been planned
at the Accounts Date, should have been reflected in the provision for deferred tax contained
in the Accounts. |
| 3. | Deductions
and Withholdings |
The
Company has made all deductions and withholdings in respect of, or on account of, any Tax (including amounts to be deducted under
PAYE) from any payments made by it which it is obliged or entitled to make and (to the extent required to do so) has accounted
in full to the relevant Tax Authority for all amounts so deducted or withheld and has (to the extent required by law) duly provided
certificates of deduction of tax to the recipients of payments from which deductions have been made.
| 4.1 | The
Company has never been resident or had a branch, agency, place of business, any permanent
establishment (within the meaning of section 1141 CTA 2010) or subsidiary incorporated
outside the United Kingdom and has never carried out any trading activities outside the
United Kingdom for the purposes of any Tax Legislation. |
| 4.2 | The
Company has never been (nor is it liable to be) assessed to Tax as the agent or representative
of any person not resident in the United Kingdom. |
| 4.3 | The
Company does not and has never held shares in a company which is not resident in the
United Kingdom and which would be a close company if it were resident in the United Kingdom,
in circumstances that any chargeable gain accruing to that other company could be apportioned
to the Company under section 13 TCGA 1992. |
| 4.4 | The
Company is not liable to register with any Tax Authority outside the United Kingdom for
the purpose of paying or administering any Tax. |
| 5.1 | The
Company is not and has not at any time been a close investment holding company within
the meaning of section 34 CTA 2010. |
| 5.2 | The
Company has not at any time during the period of seven years ending on the date of this
agreement made any payment which falls to be treated as a distribution under section
1064 CTA 2010 (certain expenses of close companies treated as distributions). |
| 5.3 | The
Company has not made or waived any loan, advance or payment or given any consideration
which could fall to be chargeable to tax under chapter 3 of part 10 CTA 2010 (charge
to tax in case of loan to a participator) and which have remained outstanding at any
time during the period of seven years ending on the date of this Agreement and the Company
has not released or written off or agreed to write off the whole of any such loans or
advances. |
| 5.4 | The
Company has not made any transfers of value (as specified in section 94(1) IHTA 1984)
and there has been no variation in the Company’s share or loan capital within section
98 (Effect of alterations of capital) IHTA 1984. The Company is not liable for any Tax
under section 199 (Dispositions by transferor) IHTA 1984. |
| 6. | Corporation
Tax – Profits and Losses |
| 6.1 | Since
the Accounts Date: |
| 6.1.1 | no
Event has occurred which has given or may give rise to any liability to Tax (or would
or may have given rise to a liability to Tax but for the availability of a Relief) other
than corporation tax on trading profits of the Company (and not chargeable gains, balancing
charges or deemed income or profits) arising from transactions entered into in the ordinary
course of business of the Company as carried on at the Accounts Date; and |
| 6.1.2 | no
expense has been incurred and the Company is under no obligation to incur any expenditure
which is not deductible by the Company in computing its taxable profits for corporation
tax purposes for its current accounting period. |
| 6.2 | All
losses of the Company are trading losses and are available to be carried forward and
set off against income from the same trade in succeeding periods. |
| 6.3 | Since
the Accounts Date the Company has not made and is under no obligation under which it
is, or at any time may become, liable to make any payment of an income nature which has
not been and will or may not be allowable in full for corporation tax purposes or which
may be disallowed as a deduction, as a set-off or as a charge on income or otherwise
be unrelieved for corporation tax purposes by reason of the provisions of chapter 4 part
3 (Trade profits rules restricting deductions) and sections 103 (Sums recovered under
insurance policies) and 231 (Deductions for expenses under section 232) CTA 2009, sections
82, 1244 and 1253 CTA 2009 (Contributions to local enterprise agencies etc), section
1301 (annual payments for non-taxable consideration) CTA 2009, part 6 CTA 2010 (charitable
donations), part 4 TIOPA 2010 (transfer pricing), part 00 XXX 0000 (xxxx and leaseback)
or section 443 (restriction of relief for payments of interest) CTA 2009 or otherwise. |
| 6.4 | The
Company has not during the period beginning six years before Completion discontinued
a trade in circumstances such that its closing trading stock and work in progress falls
to be valued at open market value as provided for in section 164(4) CTA 2009 (basis of
valuation of trading stock. |
| 6.5 | No
change of ownership of the Company has taken place in circumstances such that chapter
2 of part 14 CTA 2010 (disallowance of trading losses) or chapter 3 part 14 CTA 2010
(company with investment business restrictions on relief) have been or may be applied
to deny relief for a loss or losses incurred by the Company and, within the period of
three years ending with the date of this agreement, there has been no major change in
the nature of conduct of any trade or business carried on the Company, nor has the scale
of the activities in any trade or business carried on the Company at any time become
small or negligible for the purposes of those sections. |
| 6.6 | Neither
the Company nor any associated company of the Company owns any intangible asset which
was acquired from another company which was at the time a member of a group of companies
for the purposes of section 780 (Deemed realisation and reacquisition at market value)
CTA 2009. |
| 6.7 | Neither
the Company nor any company which was a member of the same group of companies at the
Company at the relevant time has made any claim under chapter 7 part 8 (roll-over relief
in case of realisation and reinvestment) CTA 2009 or section 777 (roll-over relief on
reinvestment – application to group member) CTA 2009. |
| 7.1 | The
sum which would be allowed as a deduction from the consideration under section 38 (Acquisition
and disposal costs etc.) TCGA 1992 of each asset of the Company (other than trading stock)
if disposed of on the date of this Agreement would not be less than (in the case of an
asset held on the Accounts Date) the book value of that asset shown or included in the
Accounts or (in the case of an asset acquired since the Accounts Date) an amount equal
to the consideration given for its acquisition. |
| 7.2 | No
transaction has been entered into by the Company in circumstances falling within section
17 (disposals and acquisitions treated as made at market value) TCGA 1992 and the Company
is not entitled to any capital loss to which section 18(3) (transactions between connected
persons) TCGA 1992 may apply. |
| 7.3 | The
Company has not been a party to or involved in any transaction to which sections 29 –
34 (value shifting) TCGA 1992 may be applicable. |
| 7.4 | Neither
the Company nor any company which was a member of the same group of companies as the
Company at the relevant time has made any claim under sections 152 to 157 inclusive TCGA
1992 (replacement of business assets) or sections 175 (replacement of business assets
by member of a group) or 247 (roll-over relief on compulsory acquisition) TCGA 1992. |
| 7.5 | The
Company does not own any depreciating asset in respect of which a held over gain may
accrue pursuant to sections 154(2) and/or 175(3) TCGA 1992. |
| 7.6 | The
Company has never made any claim or election under section 161(3) (appropriation of asset
to trading stock) TCGA 1992. |
| 7.7 | The
Company has not ceased to be a member of a group of companies for the purposes of section
179 (deemed disposal of a chargeable asset) TCGA 1992 otherwise than as part of a merger
to which section 181 (exemption from charge under section 178 or 179 TCGA 1992 in the
case of certain mergers) TCGA 1992 applied. |
| 7.8 | The
Company does not own any asset which was acquired from another company which was at the
time a member of a group of companies for the purposes of section 179 (deemed disposal
of a chargeable asset) TCGA 1992. |
| 8. | Events
since the Accounts Date |
| 8.1 | None
of the following events have occurred in relation to the Company since the Accounts Date: |
| 8.1.1 | a
deemed (as opposed to actual) acquisition disposal or supply of assets goods services
or business facilities; |
| 8.1.2 | a
disposal or supply of assets goods services or business facilities by the Company for
a consideration which is treated for the purposes of Tax as less than the actual consideration; |
| 8.1.3 | a
distribution within the meaning given by section 1000 CTA 2010 (meaning of distribution)
or within section 1064 CTA 2010 (certain expenses of close companies treated as distributions); |
| 8.1.4 | a
transaction or arrangement which includes or a series of transactions or arrangements
which include any step or steps having no commercial or business purpose apart from the
deferral, reduction or avoidance of a liability to Tax; |
| 8.1.5 | an
Event giving rise to a balancing charge; |
| 8.1.6 | the
Company ceasing or being deemed to cease to be a member of any group or associated with
any other Company for the purposes of Tax; |
| 8.1.7 | an
Event which results in the Company being liable for Tax for which it is not primarily
liable; or |
| 8.1.8 | an
Event which gives rise to a liability of the Company for any penalty, surcharge or interest
on Tax. |
| 8.2 | For
the purposes of this paragraph 8 "business facilities" means business facilities
of any kind including but not limited to a loan of money in a letting, hiring or licensing
of any tangible or intangible property. |
The
Company has not entered into an arrangement with any Tax Authority (whether general or specific to the Company) which affects
the amount of Tax chargeable on the Company or which purports to modify or provide exemption from any obligation to make or submit
any computation, notice or return to any Tax Authority.
| 10. | Corporation
Tax – Loan Relationships |
| 10.1 | There
are no outstanding debts owed by or to the Company, or any securities issued by the Company
or which the Company owns or in which it has an interest which will not be repaid at
Completion other than trade debts within the exemption at section 251(1) (Debts –
general provisions) TCGA 1992 and which do not arise out of loan relationships of the
Company for the purposes of part 5 CTA 2009. |
| 10.2 | The
Company has at all times applied an amortised cost basis of accounting (as defined in
section 313(4) CTA 2009). |
| 10.3 | The
Disclosure Letter contains full and accurate particulars of any loan relationships to
which the Company is a party, whether as debtor or creditor, where any other party to
that loan relationship is connected with the Company for the purposes of part 5 CTA 2009
or where the Company or the other party to the loan relationship has a major interest
in the other as "major interest" is defined in section 473 CTA 2009. |
| 10.4 | The
Disclosure Letter contains full and accurate particulars of any debtor relationship (as
defined in section 302(6) CTA 2009) of the Company which relates to a deeply discounted
security (as defined in section 430 ITTOIA 2005) to which sections 406 to 412 CTA 2009
apply. |
| 10.5 | The
Company has not entered into any transaction to which section 444 (Transactions not at
arm's length - general) CTA 2009 applies. |
| 10.6 | The
Company has not been, and is not entitled to be, released from any liability which arises
under a debtor relationship of that Company. |
| 11.1 | No
balancing charge in respect of any capital allowances claimed or given would arise if
any asset of the Company were to be realised for a consideration equal to the amount
of the book value of such asset as shown or included in the Accounts (or, in the case
of any asset acquired since the Accounts Date, for a consideration equal to the consideration
given for the acquisition). |
| 11.2 | So
far as the Warrantors are aware, all necessary conditions for the availability of all
capital allowances claimed by the Company (or, where computations are made for capital
allowances purposes for pools of assets, all the assets in that pool) have at all material
times been satisfied and remain satisfied. |
| 11.3 | The
Disclosure Letter contains full details of all expenditure incurred since the Accounts
Date or to be incurred under any subsisting commitment in respect of which allowances
can be claimed under part 2 (plant and machinery allowances) and part 3 (industrial building
allowances) CAA 2001. |
So
far as the Warrantors are aware, no Event has occurred in consequence of which the Company is or may be held liable to pay or
bear any Tax which is primarily chargeable against or attributable to some person firm or company other than the Company.
| 13.1 | The
Company has duly paid all stamp duty for which it is or has been or may be made liable
and without limitation: |
| 13.1.1 | all
documents in the enforcement of which the Company is or may be interested have been duly
stamped; and |
| 13.1.2 | there
are no documents outside the United Kingdom which if they were brought into the United
Kingdom would give rise to a liability to stamp duty payable by the Company. |
| 13.2 | The
Company has duly paid all SDRT for which it is or has become liable and the Company has
not been party to any transfer of chargeable securities (within the meaning of section
99 FA 1986) in respect of which the Company could become liable to pay any SDRT. |
| 13.3 | Entering
into this agreement or Completion does not result in the withdrawal of any relief claimed
for the purposes of SDLT or stamp duty or the clawback of any SDLT or stamp duty. |
| 13.4 | The
Company is not liable to any penalty in respect of any stamp duty or SDRT. |
| 13.5 | The
Disclosure Letter sets out full and accurate details of any chargeable interest (as defined
in section 48 FA 2003) acquired or held by the Company in respect of which a land transaction
return or additional land transaction return will be required to be filed with a Tax
Authority or payment of SDLT made on or after Completion. |
| 13.6 | SDLT
has been paid in full in respect of all land transactions to which SDLT applies and in
respect of which the Company is the purchaser within the meaning of section 43(4) FA
2003 and the Company has never claimed relief from SDLT under part 1 (Group Relief) or
part 2 (Reconstruction and Acquisition Relief) of Schedule 7 FA 2003 in the three years
prior to the date of this agreement. |
| 13.7 | The
Company has not made any application to defer any payment of SDLT. |
| 13.8 | The
Company has not entered into any transaction for the acquisition of any interest in real
property which may give rise to an obligation after Completion to make a return and/or
a payment of SDLT pursuant to section 80 (Adjustment where contingency ceases or consideration
is ascertained) or paragraph 8 of Schedule 17A (settlement of contingencies etc) FA 2003. |
| 14.1 | The
Company has not in the period of three years ending on the date of this Agreement been
party to any non-arm's length transaction. |
| 14.2 | The
Company has not in the period of three years ending on the date of this Agreement been
party to or otherwise involved in any scheme or arrangement designed partly or wholly
for the purpose of avoiding, deferring or reducing any liability to Tax or amounts to
be accounted for under PAYE. |
| 14.3 | The
Company has never entered into a scheme or arrangement where either the Company or the
scheme provider, promoter or introducer is required by law to notify details of the scheme
or arrangement to a Tax Authority. |
| 15.1 | The
Company is registered for VAT in the United Kingdom under schedule 1 (Registration in
respect of taxable supplies) VATA 1994 and has not at any time in the last six years
been treated as (nor applied to be) a member of a group of companies for VAT purposes. |
| 15.2 | The
Company is a taxable person for VAT purposes, has complied with all the requirements
of VATA 1994 and all applicable regulations and orders, and has fully maintained complete,
correct and up-to-date records, invoices and other necessary documents and is not liable
to any abnormal or non-routine payment of VAT, or any forfeiture or penalty, or to the
operation of any penal provision. |
| 15.3 | All
VAT due and payable to the Commissioners of HM Revenue & Customs has been declared
and paid in full. |
| 15.4 | The
Company has not been required by the Commissioners of HM Revenue & Customs to give
security under paragraph 4 schedule 11 (power to require security and production of evidence)
VATA 1994. |
| 15.5 | Full
details of any claim for bad debt relief under section 36 (bad debts) VATA 1994 made
by the Company have been disclosed in the Disclosure Letter. |
| 15.6 | The
Company has not made any exempt supplies. |
| 15.7 | The
Disclosure Letter contains full details of any assets of the Company to which the provisions
of part XV (the capital goods scheme) VAT Regulations apply and in particular: |
| 15.7.1 | the
identity (including in the case of leasehold property, the terms of years), date of acquisition
and cost of the asset; and |
| 15.7.2 | the
proportion and amount of input tax for which tax credit has been claimed (either provisionally
or finally in a tax year and stating which tax year). |
| 15.8 | The
Company has not been a party to a transaction to which Article 5 (transfer of business
as a going concern) of the Value Added Tax (Special Provisions) Order 1995 has (or has
purported to have been) applied. |
| 15.9 | The
Company is not registered (nor required to be registered) for local VAT or its equivalent
in any State other than the United Kingdom. |
| 15.10 | The
Company has not made and is not otherwise bound by any election made pursuant to paragraph
2 (effect of the option to tax: supplies become taxable) or paragraph 21 (real estate
elections) of schedule 10 VATA 1994. |
| 16.1 | All
VAT payable upon the importation of goods and all customs and excise duties payable to
HM Revenue & Customs in respect of any assets (including trading stock) imported
or owned by the Company have been paid in full. |
| 17.1 | The
Company has not, nor has it at any time in the last seven years been: |
| 17.1.1 | a
member of a group of companies as defined by section 170 TCGA 1992; or |
| 17.1.2 | a
51% subsidiary of any company as defined by section 1154(2) CTA2010 and the Company does
not have (and never has had) any 51% subsidiary as so defined; or |
| 17.1.3 | owned
by a consortium (as defined in section 153 CTA 2010) and the Company is not nor has it
ever been a member of a consortium. |
| 17.2 | The
Company does not have and has not had at any time in the last seven years any associated
company within the meaning of section 25 CTA 2010. |
| 18. | Share
Schemes, Bonus Schemes and Employee Benefits Contributions |
| 18.1 | No
security, nor any interest in any security, has been acquired by any person where the
right or opportunity to acquire the securities or the interest in the securities was
made available by reason of the employment (that expression having the same meaning which
it is given in section 421B ITEPA 2003) of any person with the Company. For the purposes
of this warranty "security" has the meaning given to that term in section 420
ITEPA 2003 and "securities" shall be construed accordingly. |
| 18.2 | The
Disclosure Letter sets out full details of all securities options (within the meaning
given in section 420(8) ITEPA 2003) acquired by any person where the right or opportunity
in acquiring any such securities option was made available by reason of employment with
the Company or that person or of any other person. |
| 18.3 | The
Company has been allowed a deduction in calculating its profits for corporation tax purposes
in respect of each and every employee benefit contribution (as defined in section 1291(1)
CTA 2009) which it has made in any accounting period ended before Completion. |
| 18.4 | In
relation to the accounting period current at Completion, either no employee benefit contribution
(as defined in paragraph 1(2) of schedule 24 FA 2003) has been made or, if such a contribution
has been made, the whole of such contribution has been applied before Completion in the
provision of "qualifying benefits" or "qualifying expenses" as those
terms are defined in section 1296 CTA 2009. |
| 18.5 | The
Company has complied with all its reporting obligations under ITEPA 2003. |
The
Company is not and has never been either a contractor or a sub-contractor for the purposes of chapter 3 part 3 FA 2004.
| 20.1 | So
far as the Warrantors are aware the Company is not and will not become liable to be assessed
to Inheritance Tax as donor or donee of any gift or as a transferor or transferee of
value (actual or deemed) nor as a result of any disposition, chargeable transfer or transfer
of value (actual or deemed) made by or deemed to be made by any other person. |
| 20.2 | There
is no unsatisfied liability to Capital Transfer Tax or Inheritance Tax attached or attributable
to the assets of the Company or the shares of the Company and neither such assets nor
such shares are subject to charge in favour of HM Revenue and Customs. |
| 20.3 | So
far as the Warrantors are aware, no person has the power under section 212 (Power to
raise tax) IHTA 1984 to raise any Inheritance Tax by sale or mortgage of or by a terminable
charge on any of the Company's assets or shares. |
| 20.4 | The
Company is not entitled to an interest in possession in settled property. |
| 21. | Corporation
Tax – Instalment Payments |
| 21.1 | The
Company is not a "large company" as defined by regulation 3 (Large companies)
CTIP. |
| 22.1 | The
Company has sufficient records to identify which (if any) of the intangible fixed assets
shown in the Accounts are "existing assets" within the meaning of section 881
CTA 2009. |
| 22.2 | The
Company has not sold or agreed to sell any patent rights for a capital sum which would
be chargeable as income pursuant to chapter 3 part 9 (sales of patent rights) CTA 2009. |
| 22.3 | Since
the Accounts Date the Company has not acquired or disposed of or agreed to acquire or
dispose of know-how (whether or not together with a trade or part of a trade) in connection
with which chapter 13 part 3 (disposal or acquisition of know-how) or chapter 2 part
9 (disposal of know-how) CTA 2009 apply or may apply. |
schedule 7
Property
Part 1
– Leasehold
| Description
(including any title number) |
Details
of lease |
Duration |
Current
annual rent and review date |
Existing
use |
Break
rights |
Exclusion
from s24-28 LTA 1954 |
| Xxxx
00 Xxxxxx Xxxx, Xxxxxxxxx-xxxxx-Xxxx, Staffs |
11
June 2013 |
11
June 2013 - 10 June 2019 (6 years) |
£10k
per annum exclusive |
Warehouse
for storage and distribution, as industrial unit and ancillary office space |
11
June 2016 on 6 months written notice |
No |
| Unit
12, 13, 14, 19, & 00 Xxxxxx Xxxx, Xxxxxxxxx-xxxxx-Xxxx, Staffs |
6
April 2010 |
Lease
from year to year from 5 January 2010, terminable on 12 months prior written notice |
£45k
per annum exclusive subject to current rent reduction.
Rent
reviewed on every third anniversary of the lease. |
Manufacturing
warehouse for storage and distribution and ancillary office space |
Terminable
on 12 months written notice by either party. |
No |
Part 2
– The Property Warranties
| 1. | In
this part 2 of schedule 7, in addition to the words and expressions defined in clause
1.1, the following definitions shall apply: |
Planning
Acts
the
TCPA, the Planning (Listed Buildings and Conservation Areas) Xxx 0000, the Planning (Hazardous Substances) Xxx 0000, the Planning
(Consequential Provisions) Xxx 0000 and the Planning and Compulsory Purchase Xxx 0000;
Planning
Permission
a
permission under the TCPA; and
TCPA
the
Town and Country Planning Xxx 0000.
| 2. | Copies
of all the leases and licences, if any, affecting, benefiting or to which the Properties
are subject are contained in the Disclosure Documents. |
| 3. | There
are appurtenant to the Properties all rights and easements necessary for their existing
and continued use and enjoyment. |
| 4. | The
unexpired residue of the term granted by each lease of the Properties is vested in the
Company. |
| 5. | Any
right or easement appurtenant to the Properties are held by the Company in fee simple.
No right or easement appurtenant to the Properties are terminable by any third party. |
| 6. | The
Company is the legal and beneficial owner of the leasehold interest in the Properties
and has a good and marketable title to such leasehold interest in the Properties with
full title guarantee. |
| 7. | There
is no person in possession or occupation of, or who has or claims any right or interest
of any kind in, the Properties (whether adversely to the interests of the Company or
otherwise) and the Company is entitled to and has exclusive vacant possession of the
Properties. |
| 8. | Where
title to any of the Properties are unregistered, no event has occurred in consequence
of which registration should have been effected at HM Land Registry. |
| 9. | All
rents payable pursuant to the leases of the Properties by the Company have been paid
as and when they became due. |
| 10. | So
far as the Warrantors are aware, the use of the Properties are the permitted use for
the purposes of the Planning Acts and the existing permitted use is not temporary or
personal or subject to planning conditions of an onerous or unusual nature. |
| 11. | So
far as the Warrantors are aware Planning Permission has been granted or is deemed to
have been granted for the purposes of the Planning Acts in respect of any development,
alteration, extension or other improvement of the Properties which has been carried out
during the Company’s occupation of the Properties. No such Planning Permission
relating to the Properties are of a personal or temporary nature or subject to unusual
or onerous conditions. Building regulations consent has been obtained with respect to
all developments, extensions, alterations and improvements to the Properties. |
| 12. | So
far as the Warrantors are aware, no Planning Permission which has been obtained in relation
to the Properties has been suspended or called in and no application for Planning Permission
is awaiting decision. |
| 13. | So
far as the Warrantors are aware, no part of any Property is affected or, as far as the
Warrantors are aware, is likely to become affected, by: |
| 13.1 | any
outstanding dispute or notice of complaint; |
| 13.2 | any
exception, reservation, right, covenant, restriction or condition which is of an unusual
or onerous nature or which affects or might in the future affect the use of that Property
for the purpose for which it is now used; |
| 13.3 | any
notice, order or proposal made or issued by or on behalf of any government or statutory
authority; |
| 13.4 | the
carrying out of any work upon any building, the modification of any Planning Permission,
the discontinuance of any use or the imposition of any building or improvement line; |
| 13.5 | any
compensation received as a result of any refusal of any application for Planning Permission
or the imposing of any restrictions in relation to any Planning Permission; |
| 13.6 | the
payment of any outgoings (other than normal rates and taxes); or |
| 13.7 | any
commutations of rent or payment of rent in advance of the due dates for payment. |
| 14. | The
Properties are not listed as being of specific historic interest or architectural importance
nor is it located in a conservation area. |
| 15. | No
licence is required in relation to the current use of the Properties. |
| 16. | In
relation to or affecting the Properties, so far as the Warrantors are aware, there are
no: |
| 16.1 | compulsory
purchase notices, orders or resolutions or any closing, demolition or clearance orders;
or |
| 16.2 | planning
contravention, enforcement, breach of condition or stop notices issued by any local planning
authority nor has any other enforcement action (including the exercise of any right of
entry) been taken by any such authority, |
and,
as far as the Warrantors are aware, there are no circumstances likely to lead to any of the above being made.
| 17. | So
far as the Warrantors are aware, all restrictions, conditions and covenants (including
any imposed pursuant to the Planning Acts) affecting the Properties have been observed
and performed up to date. |
| 18. | There
are no structural defects (latent or patent) affecting the Properties. |
| 19. | So
far as the Warrantors are aware, the Properties are not subject to or affected by rights
of common or past or present mining activity and the Properties do not include any land
that is currently used or has been used during the Company’s occupation of the
Properties by members of the public for recreational purposes whether with or without
the Company's permission. |
| 20. | The
Company is not engaged in any dispute with any adjoining or neighbouring owner with respect
to boundary walls and fences, or with respect to any easement right or means of access
to the Properties and the Warrantors are not aware of any circumstances which may give
rise to such a dispute. |
| 21. | So
far as the Warrantors are aware no part of any Property has been affected during the
Company’s period of occupation by the leaching from adjoining premises or land
of chemicals, contaminated water or other liquids or other harmful substances or the
migration of gases arising solely from the Company’s use and occupation. |
| 22. | The
Property is insured: |
| 22.1 | for
its full reinstatement value and associated costs; |
| 22.2 | against
third party and public liability claims to an adequate extent; and |
| 22.3 | the
interest of the Company has been noted against any policy of insurance taken out by the
landlord and the rights of subrogation against the Company have been waived. |
| 23. | There
is no breach of or failure to comply with the requirements of the Regulatory Reform (Fire
Safety) Order 2005 in respect of the Properties. |
| 24. | Neither
the Company nor any of the Warrantors have received an adverse surveyor's, engineer's
or other professional's report in respect of any part of the Properties. |
| 25. | The
Warrantors are not aware of any fact, matter or thing which would, or might reasonably
affect, the willingness of a prudent tenant to take a lease of any Property. |
| 26. | Each
Property enjoys main services of water, drainage, electricity, telephone and gas. |
| 27. | The
Properties comprise all the land and buildings owned by the Company, occupied or used
by the Company or its servants or agents for the purposes of the Company's business. |
| 28. | The
Company is not and has not at any time since the date of its incorporation been the original
lessee of any property other than the Properties and has not given a guarantee or entered
into any direct covenant with either a lessor or assignor of any property. |
| 29. | The
Company has paid the rent and materially observed and performed the covenants on the
part of the tenant and the conditions contained in the leases and/or licences under which
the Properties are held; and |
| 29.1 | all
such leases and/or licences are valid and in full force; |
| 29.2 | all
licences, consents and approvals required from the landlords or any superior landlords
under any leases and/or licences of the Properties have been obtained; and |
| 29.3 | the
covenants on the part of the Company contained in such licences, consents and approvals
have been duly performed and observed. |
| 30. | There
are no rent reviews under the leases of the Properties held by the Company currently
in progress and none are due in the 12 months immediately following Completion. |
| 31. | The
Company is not for any reason anticipating the expenditure of any substantial sum of
money in respect of the Properties. |
| 32. | The
Company has not elected to waive the VAT exemption pursuant to paragraph 2 of schedule
10 VATA, and is not otherwise bound by any election in respect of any part of any Property.
No part of any Property is currently standard rated for VAT purposes because of any new
building or incomplete or new civil engineering works on that Property within the meaning
of group 1 of schedule 9 VATA. |
schedule 8
Company
Intellectual Property
Part 1
– Registered IPR
Registered
trade xxxxx
| Xxxx |
Number |
Class(es) |
Territory |
Proprietor |
| Accupro |
011247781 |
09,
40, 42 |
EC |
The
Company |
| Entellion |
011247798 |
09,
40, 42 |
EC |
The
Company |
| Accutronics |
011172137 |
09,
40, 42 |
EC |
The
Company |
| Intelligent
Power Vault (#1) |
UK00002575834 |
09 |
UK |
The
Company |
| Intelligent
Power Vault (#2) |
011253002 |
09,
40, 42 |
EC |
The
Company |
Applications
for registered trade xxxxx
| Xxxx |
Number |
Class(es) |
Territory |
Proprietor |
| |
|
|
|
|
Registered
designs
| Product/Design
description |
Number |
Locarno
class(es) |
Territory |
Proprietor |
| Lithium
Iron Credit Card Battery |
40231272 |
13-02-04,
13-02-17 |
UK |
The
Company |
| Intelligent
Power Vault |
002311787
0001
to 0008 |
|
EU |
The
Company |
| Lithium
Iron Credit Card Battery |
4021273 |
13-02-04,
13-02-07 |
UK |
The
Company |
| CMX
Series of Batteries and Chargers |
002837088
0001
to 0004 |
13-02 |
EC |
The
Company |
Applications
for registered designs
| Product/Design
description |
Application
number |
Locarno
class(es) |
Territory |
Proprietor |
| |
|
|
|
|
Granted
patents
| Title
of invention |
Patent
number |
Inventor |
Territory |
Proprietor |
| |
|
|
|
|
Pending
patent applications
| Title
of invention |
Patent
application number |
Inventor |
Territory |
Proprietor |
| |
|
|
|
|
Part 2
– Unregistered Company Intellectual Property
| Product/
Articles |
IP
Route |
Registration
Status |
| 8,
12 and 16 cell CMX series batteries and CX900 series chargers |
EC
Design |
Ongoing |
| Intelligent
Power Vault (including VR420) |
USA
Design |
Ongoing |
| CC1150 |
EC
Design |
Ongoing |
Part 3
– Intellectual Property Agreements
| System |
Version |
Latest
Version? |
Renewal
Date |
Contract
Length, Mths |
| Sage200
ERP/ SageCRM |
2011SP7 |
N |
Dec-15 |
12 |
| Hosted
Email |
Exchange
2013 |
N |
Jan-16 |
12 |
| Internet/Firewall |
n/a |
Y |
Dec-17 |
36 |
| CAD
Software |
2016 |
Y |
May-16 |
12 |
| Altium |
2016 |
Y |
Oct-16 |
12 |
| Office
365 |
n/a |
Y |
Feb-16 |
12 |
| Time
& Attendance |
2014 |
Y |
Feb-16 |
12 |
| Sieki
Scheduler |
n/a |
Y |
May-15 |
12 |
| SQL
Database |
n/a |
Y |
Feb-16 |
12 |
| Windows
Server |
n/a |
Y |
Feb-16 |
12 |
| MS
Visio |
n/a |
Y |
Feb-16 |
12 |
| MS
Project |
n/a |
Y |
Feb-16 |
12 |
| Symantec
XX |
Xxxxxxxx
00.0 |
X |
Xxx-00 |
00 |
| Xxxxxxxx
XX |
Xxxxxxxx
12.1 |
Y |
Jun-16 |
12 |
| Backup |
n/a |
Y |
Jan-17 |
16 |
| Labview
Developer |
n/a |
Y |
Oct-16 |
12 |
| GFI
LanGuard |
2015 |
Y |
Nov-15 |
12 |
| Sage
Payroll |
n/a |
Y |
Mar-16 |
12 |
| Smoothwall
Web Filter |
n/a |
Y |
Dec-17 |
36 |
| Virtual
Hosting (Eng) |
n/a |
Y |
n/a |
1 |
| Survey
Hosting (CS) |
n/a |
Y |
n/a |
1 |
| Website
Hosting |
n/a |
Y |
Mar-16 |
12 |
There
is a prospective agreement re: Powervault registration dispute
Part 4
– Domain names
| Domain
name |
Proprietor |
Renewal
date |
| Xxxxxxxxxxx.xxx |
Accutronics |
17/01/2017 |
| Xxxxxxxxxxx.xx.xx |
Accutronics |
19/08/2017 |
| Xxxxxxxxxxx.xx |
Accutronics |
30/04/2017 |
| Xxxxxxxxxxx.xx |
Accutronics |
30/04/2017 |
| Xxxxxxxxxxx.xxxx |
Accutronics |
11/04/2016 |
| Xxxxxxxxx.xx.xx |
Accutronics |
11/04/2017 |
| Xx000.xxx |
Accutronics |
11/04/2016 |
| Xx000.xx.xx |
Accutronics |
11/04/2016 |
| Xx000.xxxx |
Accutronics |
11/04/2016 |
| Xxxxxxxxxxxxxxxxx.xxx |
Accutronics |
11/04/2016 |
| Xxxxxxxxxxxxxxxxx.xx.xx |
Accutronics |
11/04/2016 |
| Xxxxxxxxxxxxxxxxx.xxxx |
Accutronics |
11/04/2016 |
| Xxxxxxx.xx.xx |
Accutronics |
11/04/2017 |
| Xxx.xx.xxx |
Accutronics |
11/04/2016 |
| Xxxxxxxx-xxxxxx.xx |
Accutronics |
|
| Xxxxxxxxxxxxxx.xx |
Accutronics |
|
| Xxxxxxxxxxxx.xx.xx |
Accutronics |
17/02/2018 |
| Xxxxx-xxxxxxxxx.xx.xx |
Accutronics |
05/03/2017 |
| Xxxxxxxxxxxx.xx.xx |
Accutronics |
11/02/2018 |
| Xxxxxxxxxxxxxxxxx.xxxx |
Accutronics |
10/04/2016 |
schedule 9
Completion
Accounts
Part 1
– Preparation and procedure
| 1.1 | The
Completion Accounts shall consist of: |
| 1.1.1 | a
Working Capital statement as at the Completion Accounts Date (the Working Capital
Statement) which shall be prepared in the format shown in the Pro-Forma Working Capital
Statement set out in part 3 of this schedule; |
| 1.1.2 | a
Net Indebtedness statement as at the Completion Accounts Date (the Net Indebtedness
Statement) which shall be prepared in the format shown in the Pro-Forma Net Indebtedness
Statement set out in part 4 of this schedule; and |
| 1.1.3 | the
appropriate supporting schedules to the Working Capital Statement and the Net Indebtedness
Statement. |
| 1.2 | As
regards any specific item or amount, including the application of accounting judgment
and discretion, the Completion Accounts shall be prepared: |
| 1.2.1 | in
accordance with the Specific Accounting Policies; |
| 1.2.2 | subject
to that, in accordance with the Accounts Treatment; |
| 1.2.3 | subject
to that, in accordance with Accounting Practice; and |
| 1.2.4 | taking
into account any other adjustments as may be agreed in writing between the Buyer and
the Sellers, |
and,
for the avoidance of doubt, paragraph 1.2.1 prevails over paragraphs 1.2.2 and 1.2.3, and paragraph 1.2.2 prevails over paragraph
1.2.3.
| 2.1 | The
Buyer shall use its reasonable endeavours to: |
| 2.1.1 | procure
that the Buyer's Accountants prepare the Draft Completion Accounts as soon as reasonably
practicable after Completion and, in any event, within 20 Business Days of Completion;
and |
| 2.1.2 | deliver
the Draft Completion Accounts to the Sellers' Representative within the period set out
in paragraph 2.1.1. |
| 2.2 | The
Buyer shall promptly give and shall procure that the Company shall promptly give such
assistance and access to information as the Sellers’ Accountants may reasonably
require in connection with the review of the Draft Completion Accounts for the purpose
of reviewing the Draft Completion Accounts. |
| 2.3 | The
Sellers shall procure that within 20 Business Days of the date of receipt of the Draft
Completion Accounts by the Sellers (the Review Period), the Sellers' Accountants
shall notify the Buyer's Accountants whether or not they agree with the Completion Accounts,
and the Net Indebtedness and Working Capital shown in those accounts. |
| 2.4 | If
the Sellers' Accountants notify the Buyer's Accountants that they agree the Draft Completion
Accounts, or if the Sellers' Accountants fail to notify the Buyer's Accountants that
they do not agree the Draft Completion Accounts within the Review Period, the Draft Completion
Accounts shall constitute the Completion Accounts and shall immediately become final
and binding on the Parties for the purposes of this Agreement. |
| 2.5 | If
the Sellers' Accountants do not agree the Draft Completion Accounts they shall, within
the Review Period, give notice (an Objection Notice) to the Buyer's Accountants
of all adjustments which they consider are required to ensure the Draft Completion Accounts
comply with this schedule. Any adjustments proposed in the Objection Notice shall (to
the extent reasonably practicable) be quantified, explained and properly documented in
the Objection Notice. No further adjustments to the Draft Completion Accounts may be
proposed or made by or on behalf of the Buyer or the Sellers after service of an Objection
Notice and, to the extent not disputed in the Objection Notice, the Draft Completion
Accounts shall be final and binding on the Buyer and the Sellers. |
| 2.6 | Following
service of an Objection Notice within the Review Period, the Parties shall use their
reasonable endeavours to agree the adjustments proposed in the Objection Notice as soon
as possible. If those adjustments are resolved between the Parties, the Draft Completion
Accounts, adjusted as agreed between the Parties, shall constitute the Completion Accounts
and shall become final and binding on the Buyer and the Sellers upon such matters being
agreed in writing by the Buyer and the Seller. |
| 2.7 | If
the Buyer and the Sellers are unable to agree on any of the adjustments proposed in the
Objection Notice within 20 Business Days of the Objection Notice being served on the
Buyer, the adjustments in the Objection Notice which are still disputed (the Disputed
Adjustments) shall be referred, at the request of either party, to an independent
chartered accountant (the Accountant) for final determination. For the avoidance
of doubt, no other matters may be referred to the Accountant for determination. |
| 2.8 | The
Buyer and the Sellers shall agree the identity of the Accountant and the terms of his
engagement in writing. If the Buyer and the Sellers fail to agree on the identity of
the Accountant or the terms of his engagement within 10 Business Days of either party
serving details of a suggested Accountant on the other, the Accountant shall be nominated
by and engaged on such terms as may be specified by the President for the time being
of the Institute of Chartered Accountants in England and Wales on the application at
any time of either party. |
| 2.9 | The
Accountant shall be instructed to: |
| 2.9.1 | prepare
a written decision and give notice of that decision to the Parties within a maximum of
2 months of the matter being referred to him; |
| 2.9.2 | determine
which of, and to what extent (if at all), the Disputed Adjustments should be made to
the Draft Completion Accounts in order to ensure that those accounts comply with this
schedule and, for the avoidance of doubt, the Accountant shall not consider or propose
any adjustments to the Draft Completion Accounts other than the Disputed Adjustments;
and |
| 2.9.3 | certify
the amount of the Working Capital and Net Indebtedness as at the Completion Date based
on the Draft Completion Accounts adjusted in accordance with paragraph 2.9.2. |
| 2.10 | The
Buyer and the Sellers shall supply the Accountant with any information which he may reasonably
request in connection with his determination of the Disputed Adjustments. The Buyer and
the Sellers shall be entitled to make written submissions to the Accountant in respect
of the Disputed Adjustments provided that a copy of any such written submissions is also
simultaneously delivered to the other party. The Accountant shall give due weight to
any such written submission which is received by the Accountant within such time limit
as he may determine and have notified to the Parties. |
| 2.11 | The
decision of the Accountant (who shall be deemed to act as an expert and not as an arbitrator)
shall be final and binding on the Buyer and the Sellers, save in the event of fraud or
manifest error. The costs of the Accountant in connection with his determination shall
be borne as he directs (taking into account the conduct of the Parties and the merits
of their respective arguments in relation to the reference made to him) or, in the absence
of any such direction, by the Buyer and the Sellers in equal shares. |
| 2.12 | The
Working Capital and Net Indebtedness shown in the Completion Accounts agreed or determined
in accordance with this schedule shall be the Working Capital and the Net Indebtedness
for the purposes of clause 4. |
Part 2
– Specific accounting policies and procedures for the Completion Accounts
| 1. | The
Completion Accounts shall be prepared as if the accounting period ending at the close
of business on the Completion Accounts Date were a financial year end of the Company. |
| 2. | The
Completion Accounts shall be prepared on a going concern basis and no single item will
be double-counted in any aspect of the calculation of the Working Capital and/or the
Net Indebtedness. |
| 3. | In
preparing the Completion Accounts the following Specific Accounting Policies and adjustments
shall be applied as provided for in accordance with part 1 of this schedule: |
| 3.1 | a
provision of £185,000 plus insurance premium tax shall be made for the premium
payable to Xxxxxx Xxxxxx & Partners Limited in relation to the Buyer’s insurance
policy relating to the Warranties and the Tax Covenant; |
| 3.2 | a
provision of £143,351.00 shall be made for the outstanding liability due to <name
redacted> pursuant to an agreement dated 8 January 2014 and made between <name
redacted>, <name redacted> and the Company; |
| 3.3 | a
provision of £100,000 shall be included for staff bonuses; |
| 3.4 | a
provision for fees payable of £14,941.00 plus VAT, to Tufnol Composites Limited,
a company that is connected to Xx X X Xxxxxxx; |
| 3.5 | a
provision of £107,786.14 in respect of the dividend payable to Catapult Growth
Fund Limited Partnership; |
| 3.6 | a
provision relating to the payment of expenses and directors and monitoring fees to Catapult
Growth Fund Limited Partnership and Intrinsic Equity Limited of £2,400 in the aggregate |
Part 3
– Pro-Forma Working Capital Statement
The
Working Capital Statement shall be in the format set out below.
| Current
Assets |
|
| Total
Stock & WIP |
[●] |
| Prepayments/Other
Debtors |
[●] |
| Trade
Debtors |
[●] |
| Vat |
[●] |
| Total
|
[●] |
| |
|
| Current
Liabilities |
([●]) |
| Trade
Creditors |
([●]) |
| Prepaid
Creditors |
([●]) |
| Accruals/Other
Creditors |
([●]) |
| Xxxxx
Xxxxxxx Adjustment |
[●] |
| Other
Taxes |
([●]) |
| Total |
([●]) |
| |
|
| Net
Working Capital |
[●] |
| |
|
Part 4
– Pro-Forma Net Indebtedness Statement
The
Net Indebtedness Statement shall be in the format set out below.
| Cash |
[●] |
| Less
Debt Items: |
|
| ID
Facility |
([●]) |
| Dividend
Accrual |
([●]) |
| Xxxxx
Xxxxxxx |
([●]) |
| Other
Loan Account |
([●]) |
| HP |
([●]) |
| Corporation
Tax |
([●]) |
| WC
adjustment |
([●]) |
| Total
|
[●] |
Part 5
– Permitted Payments
| · | Fees
payable of £14,941.00 plus VAT, to Tufnol Composites Limited, a company that is
connected to Xx X X Xxxxxxx |
| · | The
payment of the sum of £185,000 plus insurance premium tax to Xxxxxx Xxxxxx &
Partners Limited in relation to the Buyer’s insurance policy relating to the Warranties
and the Tax Covenant. |
| · | A
dividend of £107,786.14 payable to Catapult Growth Fund Limited Partnership. |
| · | The
payment of salary and expenses in the ordinary course to Xxxxxx Xxxxxx Xxxxxxxx and Xxxxxxx
Xxxxx. |
| · | The
payment of expenses and directors and monitoring fees to Catapult Growth Fund Limited
Partnership and Intrinsic Equity Limited of £2,400 in the aggregate. |
| EXECUTED
and DELIVERED as a DEED by XXXXXX XXXXXX XXXXXXXX in the presence of: |
)
/s/ Xxxxxx Xxxxxx Xxxxxxxx
)
) |
Witness
Signature
Witness
Name
Address
Occupation
|
|
| EXECUTED
and DELIVERED as a DEED by INTRINSIC EQUITY LIMITED acting by a director in the presence of: |
) /s/ Xxxxx
Xxxxxxxx
) Director
) |
Witness
Signature
Witness
Name
Address
Occupation
|
|
| EXECUTED
and DELIVERED as a DEED by MJF PENSION TRUSTEES LIMITED, as trustee of the Xxxxxxx J Field SIPPS
(X X Xxxxxxx a/c) in the presence of: |
) /s/ Xxxxxxx
X. Field
) Director
)
) |
Witness
Signature
Witness
Name
Address
Occupation |
|
| EXECUTED
and DELIVERED as a DEED by XXXXX XXXXXXX XXXXXXX, as trustee of the Xxxxxxx J Field SIPPS (X X Xxxxxxx
a/c) in the presence of: |
) /s/
Xxxxx Xxxxxxx Xxxxxxx
) Director
)
) |
Witness
Signature
Witness
Name
Address
Occupation
|
|
| EXECUTED
and DELIVERED as a DEED by XXXXXXX XXXXX in the presence of: |
) /s/ Xxxxxxx
Xxxxx
) |
Witness
Signature
Witness
Name
Address
Occupation
|
|
EXECUTED
and DELIVERED as a DEED by CATAPULT GROWTH FUND LIMITED PARTNERSHIP acting by its manager CATAPULT
VENTURE MANAGERS LIMITED acting by
a director and
a director/authorised signatory |
) /s/ Xxxxxx
Xxxxxxx
) Director
)
)
) /s/ Xxxxxx Xxxx
) Director/Authorised signatory
) |
| EXECUTED
and DELIVERED as a DEED by ULTRALIFE UK LIMITED acting by a director in the presence of: |
) /s/
Xxxxxx X. Xxxx
) Director
) |
Witness
Signature
Witness
Name
Address
Occupation
|
|
