1
Exhibit 4.5
Dated 4 June 1999
XXXXX HOLDINGS PLC
-aiind-
XX. XXXXXX XXXXXXX
-and-
XXXXX XXXXXXX
-and-
THE TRUSTEES OF THE XXXXXX XXXXXXX 1999 SETTLEMENT
-----------------------------------------
AGREEMENT
For the sale and purchase of all the issued shares
of Xxxxxxxxxxx-Xxxxxx Limited, Ashbourne
Pharmaceuticals (Holdings) Limited, Chargelink
Limited and Xxxxxx Xxxxxxx Healthcare Limited
-----------------------------------------
ASHURST XXXXXX XXXXX
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 000 0000 0000
Fax: 000 0000 0000
JXS/RRC/G82900001
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CONTENTS
CLAUSE PAGE
1. INTERPRETATION....................................................... 1
2. SALE AND PURCHASE.................................................... 7
3. COMPLETION........................................................... 7
4. PURCHASER'S POST-COMPLETION UNDERTAKINGS............................. 9
5. XX. XXXXXXX POST-COMPLETION UNDERTAKINGS............................. 11
6. WARRANTIES........................................................... 12
6A. INDEMNITIES.......................................................... 12
7. PROTECTION OF GOODWILL............................................... 13
8. CONFIDENTIAL INFORMATION............................................. 15
9. INTELLECTUAL PROPERTY................................................ 15
10. ANNOUNCEMENTS........................................................ 16
11. COSTS................................................................ 16
12. EFFECT OF COMPLETION................................................. 16
13. FURTHER ASSURANCES................................................... 16
14. ENTIRE AGREEMENT..................................................... 17
15. VARIATIONS........................................................... 17
16. WAIVER............................................................... 17
17. INVALIDITY........................................................... 18
18. NOTICES.............................................................. 18
19. COUNTERPARTS......................................................... 19
20. GOVERNING LAW AND JURISDICTION....................................... 19
21. GROSS UP............................................................. 20
22. ESCROW ARRANGEMENTS.................................................. 20
23. EXCLUDED CONTRACTS................................................... 22
SCHEDULE 1................................................................ 24
Particulars relating to the Company....................................... 24
SCHEDULE 2................................................................ 2
Particulars relating to the Companies..................................... 2
SCHEDULE 3................................................................ 6
The Warranties............................................................ 6
SCHEDULE 4................................................................ 30
Limitations on Liability.................................................. 30
SCHEDULE 5................................................................ 34
Property Leases........................................................... 34
SCHEDULE 6................................................................ 35
Indemnities............................................................... 35
SCHEDULE 7A............................................................... 37
Trade Marks............................................................... 37
SCHEDULE 7B............................................................... 38
Trade Xxxx Application.................................................... 38
SCHEDULE 8................................................................ 39
Product Licences.......................................................... 39
SCHEDULE 9................................................................ 42
Excluded Contracts........................................................ 42
SCHEDULE 10............................................................... 46
Retained Employees........................................................ 46
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DOCUMENTS IN THE AGREED TERMS
Deed of Release of Companies/Directors
Directors/Secretary Resignation Letters
Voting Powers of Attorney
Tax Deed
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THIS AGREEMENT is made on 4 June 1999
BETWEEN:
(1) XXXXX HOLDINGS PLC (No. NI25836) whose registered office is at Seagoe
Industrial Estate, Craigavon, Co. Armagh, Northern Ireland BT63 5UA (the
"PURCHASER");
(2) XX. XXXXXX XXXXXXX of Xxx Xxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxx Xxxxxxxxxx,
Xxxxxxxxxxxxxx XX00 0XX ("XX. Xxxxxxx");
(3) XXXXX XXXXXXX of Xxx Xxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxx Xxxxxxxxxx,
Xxxxxxxxxxxxxx XX00 0XX ("XXX XXXXXXX");
(4) DR. DALLAS XXXX XXXXXXX of Xxx Xxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxxx, XX00 0XX and XXX XXXXXX of Seckloe House, 101
North 00xx Xxxxxx, Xxxxxxx Xxxxxx Xxxxxx, XX0 0XX as trustees of The
Xxxxxx Xxxxxxx 1999 Settlement;
(the parties numbered (2), (3) and (4) together, the "VENDORS").
THE PARTIES AGREE AS FOLLOWS:
1. INTERPRETATION
1.1 In this agreement the following words and expressions and abbreviations
have the following meanings, unless the context otherwise requires:
"ACCOUNTS" means the audited financial statements of the Companies,
comprising the balance sheet and profit and loss account together in each
case with the notes thereon, directors' report and auditors' certificate,
as at and for the financial period ended on the relevant Accounts Date;
"ACCOUNTS DATE" means 31 March 1999;
"ACTIVITIES" means any activity, operation or process carried out by the
Company at any property whether or not currently owned, occupied or used
by the Company;
"APHL" means Ashbourne Pharmaceuticals (Holdings) Limited (No.2238884);
"ASSOCIATED COMPANY" has the meaning given to it in sections 416 et seq.
TA;
"BONUS NIC" means the amount of any national insurance contributions
accountable for by the Company in respect of the payment to a senior
employee of the Company in the accounting period of the Company ending 31
March 1998 in the form of gold coins, together with any interest or
penalties thereon;
"BRL" means Xxxxxxxxxxx-Xxxxxx Limited (No.2706002);
"BUSINESS DATA" shall have the meaning given to it in clause 5.2;
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"BUSINESS DAY" means a day (excluding Saturdays) on which banks generally
are open in London for the transaction of normal banking business;
"CHARGELINK" means Chargelink Limited (No. 3064205);
"COMPANIES" means APHL, BRL, DBHL and Chargelink and "COMPANY" means any
or all of them as the context admits;
"COMPLETION" means the completion of the sale and purchase of the Shares
in accordance with clause 3;
"COMPLETION DATE" means the date on which Completion occurs;
"CONFIDENTIAL INFORMATION" means all information relating to any
Company's business, or financial or other affairs (including future plans
and targets of any Company) which is not in the public domain;
"DIRECTOR'S LOAN" means all amounts owing by the Companies to Xx. Xxxxxxx
at Completion on his director's loan accounts;
"DBHL" means Xxxxxx Xxxxxxx Healthcare Limited (No.3160430);
"DISCLOSURE LETTER" means a letter of today's date together with the
attachments thereto addressed by Xx. Xxxxxxx to the Purchaser disclosing
exceptions to the Warranties;
"DISTRIBUTION" means a distribution as defined by sections 209 to 211
(inclusive) of the TA and section 418 of the TA;
"ENCUMBRANCE" means any mortgage, charge (fixed or floating), pledge,
lien, hypothecation, trust, right of set off or other third party right
or interest (legal or equitable) including any right of pre-emption,
assignment by way of security, reservation of title or any other security
interest of any kind however created or arising or any other agreement or
arrangement (including a sale and repurchase arrangement) having similar
effect;
"ENVIRONMENT" means any and all living organisms, ecosystems and the
media of air (including air in buildings, natural or man-made structures,
below or above ground) water, (as defined in section 104(1) of the Water
Resources Xxx 0000 and within drains and sewers) and land (including
under any water as described above whether above or below surface and
including any buildings or structures on such land);
"ENVIRONMENTAL LAWS" means all international, EU, national, federal,
state or local statutes, (which for the avoidance of doubt shall include
the Producer Responsibility Obligations (Packaging Waste) Regulations
1997, section 57 and schedule 22 of the Environment Xxx 0000 and the
guidance and regulations adopted under those provisions), by-laws,
orders, regulations or other law or subordinate legislation or common
law, all orders, ordinances, decrees or regulatory codes of practice,
circulars, guidance notes and equivalent controls concerning the
protection of human health or which have as a purpose or effect the
protection of or prevention of harm or nuisance to the Environment or the
promotion of health and safety and/or the provision of remedies in
respect of the same;
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"ESCROW ACCOUNT" means the joint deposit account in the names of the
Vendor's Solicitors and the Purchaser's Solicitors number 50259993, Sort
Code 20-61-51, held at
the Escrow Bank;
"ESCROW AMOUNT" means the sum of L150,000 or so much thereof as remains
subject to the provisions of clause 22 from time to time;
"ESCROW BANK" means Barclays Bank plc of Xxxxxxxxxxxx Xxxxxxxx Xxxxxx,
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxx, XX0 0XX;
"EXCLUDED CONTRACTS" means the contracts, invoices and other arrangements
listed at schedule 9;
"HAZARDOUS SUBSTANCE" means any natural or artificial substance (whether
solid, liquid, gas, noise, ion, vapour, electromagnetic or radiation, and
whether alone or in combination with any other substance) which is
capable of causing significant harm to the Environment;
"KNOW-HOW" means confidential or proprietary industrial, technical or
commercial information and techniques in any form (including paper,
electronically stored data, magnetic media, files and micro film)
including (without limitation to the foregoing) drawings, data relating
to inventions, formulae, test results, reports, research reports, project
reports and testing procedures, shop practices, instructions and training
manuals, market forecasts, specifications, quotations, lists and
particulars of customers and suppliers, marketing methods and procedures,
show-how and advertising copy;
"INSURANCE CLAIM" means the insurance claim submitted or in process of
being submitted by BRL under its insurance policies in relation to a Golf
VR6 registration number P493 TRP, which has been written off;
"INTELLECTUAL PROPERTY" means any and all patents, trade marks, rights in
designs, get-up, trade, business or domain names, copyrights, and
topography rights, (whether registered or not and any applications to
register or rights to apply for registration of any of the foregoing),
rights in inventions, Know-How, trade secrets and other Confidential
Information, rights in databases and all other intellectual property
rights of a similar or corresponding character which may now or in the
future subsist in any part of the world;
"ISOTARD STOCK" means the stock of any product marketed or to be marketed
by the Companies or the Purchaser using the ISOTARD trademark;
"ITA" means the Inheritance Tax Xxx 0000;
"LONDON STOCK EXCHANGE" means the London Stock Exchange Limited;
"PERMIT" means a permit, licence, consent, approval, certificate,
qualification, specification, registration and other authorisation and a
filing of a notification report or assessment necessary in any
jurisdiction for the proper and efficient operation of each Company's
business, its ownership, possession, occupation or use of an asset or the
execution and performance of this agreement and shall include without
limitation the Product Licences and the current marketing rights held in
respect of the Third Party Product Licences;
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"PRODUCT LICENCES" means the product licences owned by the Companies
including but not limited to the product licences detailed at part 1 of
schedule 8 but excluding the product licences and product licence
applications referred to at clauses 4.1(b) and (c);
"PRODUCT LICENCE DOSSIERS" means the product licence dossiers in respect
of the development projects detailed at part 2 of schedule 8;
"PROPERTY LEASES" means the property leases to which any of the Companies
is a party, details of which are set out in schedule 5;
"PURCHASER'S SOLICITORS ACCOUNT" means the account in the name of Ashurst
Xxxxxx Xxxxx, number 00000000 at NatWest Bank Plc, Bishopsgate Branch,
London, Sort Code 50-00-00;
"PURCHASER'S GROUP" means the Purchaser, its holding companies and the
subsidiary undertakings and associated companies from time to time of
such holding companies, all of them and each of them as the context
admits;
"PURCHASER'S SOLICITORS" means Ashurst Xxxxxx Xxxxx of Xxxxxxxxx Xxxxx, 0
Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX;
"RELATED PERSON" means:
(a) in relation to the Purchaser, the Purchaser's Group; and
(b) in relation to the Vendors, the Vendors' Group, and also in
relation to those Vendors who are natural persons:
(i) that Vendor's spouse;
(ii) that Vendor's children, grandchildren, parents, siblings,
nieces and nephews;
(iii) the spouses of the persons referred to in paragraph (b)(ii)
of this definition;
(iv) the children of the spouses referred to in paragraph
(b)(iii) of this definition (not being children of the
persons referred to in paragraph (b)(ii));
"RETAINED EMPLOYEES" means any persons who are or have been at any time
prior to Completion employed by the Company or engaged by the Vendors to
any extent working in the business of the Company including those persons
set out in schedule 10;
"SHARES" means all of the issued shares in the capital of APHL, BRL, DBHL
and Chargelink;
"SUBSTANTIAL CUSTOMER" means a customer accounting for more than five per
cent. of a Company's sales in the financial year ended on the Accounts
Date;
"SUBSTANTIAL SUPPLIER" means a supplier accounting for more than five per
cent. of a Company's purchases in the financial year ended on the
Accounts Date;
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"SYSTEMS" means all plant, equipment, systems, devices and components
which contain or are controlled or monitored by computer systems,
microprocessors or software;
"TA" means the Income and Corporation Taxes Xxx 0000;
"TAX" or "tax" shall have the meaning given to it in the Tax Deed;
"TAXATION AUTHORITY" means any local, municipal, governmental, state,
federal or fiscal, revenue, customs or excise authority, body, agency or
official anywhere in the world having or purporting to have power or
authority in relation to Tax including the Inland Revenue and HM Customs
and Excise;
"TAXATION STATUTES" means all statutes, statutory instruments, orders,
enactments, laws, by-laws, directives and regulations, whether domestic
or foreign decrees, providing for or imposing any Tax;
"TAX DEED" means a deed of indemnity in the agreed terms;
"TCGA" means the Taxation of Chargeable Gains Xxx 0000;
"TERRITORY" means the United Kingdom;
"THIRD PARTY PRODUCT LICENCES" means product licences owned by third
parties and which are marketed by any Company including but not limited
to the product licences as detailed at part 4 of schedule 8;
"TRADEMARKS" means trademarks owned by the Companies as detailed at
Schedule 7A and the trademark application as detailed in schedule 7B;
"TMA" means the Taxes Management Xxx 0000;
"VATA" means the Value Added Tax Xxx 0000 and "VAT LEGISLATION" means
VATA and all regulations and orders made thereunder;
"VENDORS' GROUP" means any companies directly or indirectly controlled by
one or more of the Vendors, excluding the Companies, all of them and each
of them as the context admits;
"VENDORS' REPRESENTATIVE" means Xx. Xxxxxxx;
"VENDORS' SOLICITORS ACCOUNT" means the account in the name of Eyton
Xxxxxx Xxxxxxxx, number 10305332 at Barclays Bank plc of Cliftonville
Business Centre Branch, Northampton, Sort Code 20-61-51;
"VENDORS' SOLICITORS" means Eyton Xxxxxx Xxxxxxxx of Seckloe House, 000
Xxxxx 00xx Xxxxxx, Xxxxxxx Xxxxxx Xxxxxx, XX0 0X00;
"WARRANTIES" means the warranties set out in schedule 3.
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1.2 In this agreement unless otherwise specified, reference to:
(a) a "SUBSIDIARY UNDERTAKING" is to be construed in accordance with
section 258 of the Companies Xxx 0000 and a "SUBSIDIARY" or
"HOLDING COMPANY" is to be construed in accordance with section
736 of that Act;
(b) a document in the "AGREED TERMS" is a reference to that document
in the form approved and for the purposes of identification signed
by or on behalf of each party;
(c) "FA" followed by a stated year means the Finance Act of that year;
(d) "INCLUDES" and "INCLUDING" shall mean including without
limitation;
(e) a "PARTY" means a party to this agreement and includes its
assignees (if any) and/or the successors in title to substantially
the whole of its undertaking and, in the case of an individual, to
his or her estate and personal representatives;
(f) a "PERSON" includes any person, individual, company, firm,
corporation, government, state or agency of a state or any
undertaking (whether or not having separate legal personality and
irrespective of the jurisdiction in or under the law of which it
was incorporated or exists);
(g) a "STATUTE" or "STATUTORY INSTRUMENT" or "ACCOUNTING STANDARD" or
any of their provisions is to be construed as a reference to that
statute or statutory instrument or accounting standard or such
provision as the same may have been amended or re-enacted before
the date of this agreement;
(h) "CLAUSES", "PARAGRAPHS" or "SCHEDULES" are to clauses and
paragraphs of and schedules to this agreement;
(i) "WRITING" includes any methods of representing words in a legible
form other than writing on an electronic or visual display screen
or in other non-transitory form;
(j) words denoting the singular shall include the plural and vice
versa and words denoting any gender shall include all genders.
1.3 The schedules form part of the operative provisions of this agreement and
references to this agreement shall, unless the context otherwise
requires, include references to the schedules.
1.4 The index to and the headings and the descriptive notes in brackets
relating to provisions of taxation statutes in this agreement are for
information only and are to be ignored in construing the same.
1.5 Save as otherwise provided, the obligations and liabilities of the
Vendors under this agreement shall be joint and several.
1.6 Any question of whether a person is connected with another shall be
determined in accordance with section 839 of the TA (except that in
construing section 839 "CONTROL" has the meaning
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given by section 840 or section 416 of the TA so that there is control
whenever section 840 or 416 requires) which shall apply in relation to
this agreement as it applies in relation to the TA.
2. SALE AND PURCHASE
2.1 Upon the terms and subject to the conditions of this agreement the
Vendors as legal and beneficial owners and with full title guarantee
shall sell and the Purchaser shall purchase the Shares with effect from
Completion free from any Encumbrance together with all accrued benefits
and rights attached thereto and all dividends declared after the Accounts
Date in respect of the Shares, save for the scrip dividend declared by
BRL on 2 June 1999.
2.2 The Vendors waive or agree to procure the waiver of any rights or
restrictions conferred upon them or any other person which may exist in
relation to the Shares under the articles of the Companies or otherwise.
2.3 The Purchaser shall not be obliged to complete the purchase of any of the
Shares unless the Vendors complete the sale of all of the Shares
simultaneously, but completion of the purchase of some of the Shares
shall not affect the rights of the Purchaser with respect to its rights
to the other of the Shares.
2.4 The consideration for such sale and purchase shall be the total sum of
L19,106,719 to be satisfied in cash on Completion (the "CONSIDERATION").
3. COMPLETION
3.1 Completion shall take place at the offices of the Vendors' Solicitors or
at such other place as the parties may agree immediately after the
execution of this agreement.
3.2 On Completion the Vendors shall deliver to or, if the Purchaser shall so
agree, make available to the Purchaser:
(a) transfers in common form relating to all the Shares duly executed
in favour of the Purchaser (or as it may direct);
(b) share certificates relating to the Shares;
(c) any waivers or consents by any persons which the Purchaser has
specified prior to Completion in the agreed terms so as to enable
the Purchaser or its nominees to be registered as the holders of
the Shares;
(d) resignations in the agreed terms duly executed as deeds of all the
directors and the secretary of each Company from their offices as
director or secretary of and their employment with each Company
containing a confirmation that they have no claims (whether
statutory, contractual or otherwise) against any Company for
compensation for loss of office or termination of employment or
for unpaid remuneration or otherwise together with delivery to the
Purchaser of all property of any Company in their possession or
under their control;
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(e) the written resignations of the auditors of each Company
containing an acknowledgement that they have no claim against any
Company for compensation for loss of office, professional fees or
otherwise and a statement under section 394(1) of the Companies
Xxx 0000;
(f) the common seals, certificates of incorporation and statutory
books, share certificate books and cheque books of each Company;
(g) the Tax Deed duly executed by Xx. Xxxxxxx;
(h) to the extent not in the possession of any Company, all books of
account or references as to customers and/or suppliers and other
records (including without limitation records relating to or
embodying the Companies Intellectual Property) and all insurance
policies in any way relating to or concerning the businesses of
any Company;
(i) to the extent not in the possession of any Company, all licences,
consents, Permits and authorisations obtained by or issued to any
Company or any other person in connection with the business
carried on by any Company and such contracts, deeds or other
documents (including assignments of any such licences) as shall
have been required by the Purchaser's Solicitors prior to the date
hereof;
(j) a release in the agreed terms duly executed as a deed, in a form
satisfactory to the Purchaser, releasing each Company and their
respective officers or employees from any liability whatsoever
(actual or contingent) which may be owing to the Vendors or any of
their Related Persons by any Company except those arising in the
ordinary course of trade;
(k) voting powers of attorney in relation to the Shares in the agreed
terms duly executed by the relevant Vendors.
3.3 At or prior to Completion (and prior to the taking effect of the
resignations of the directors referred to in clause 3.2(d) above) the
Vendors shall procure passing of board resolutions of each Company in the
agreed terms:
(a) sanctioning for registration (subject where necessary to due
stamping) the transfers in respect of the Shares;
(b) appointing Dr. Xxxx Xxxx and Xxxxxxxx Xxxxxxx to be the directors
and Xxxxxxx Xxxxxxxx to be the secretary of each Company;
(c) revoking all mandates to bankers and giving authority in favour of
the directors appointed under clause 3.3(b) above and Xxxxxxx
Xxxxxxxx and Xxxx Xxxxx or such other persons as the Purchaser may
nominate to operate the bank accounts thereof;
(d) resolving that the registered office of each Company be changed to
Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx, XX0X 0XX;
(e) changing the accounting reference date of each Company to 30
September.
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3.4 The Vendors shall procure that at Completion:
(a) there are repaid all sums (if any) owing to any Company by the
Vendors or by the directors of any Company or any of their Related
Persons except those arising in the ordinary course of trade and
whether or not such sums are due for repayment;
(b) each Company is released from any guarantee, indemnity, bond,
letter of comfort or Encumbrance or other similar obligation given
or incurred by it which relates in whole or in part to debts or
other liabilities or obligations, whether actual or contingent, of
any person other than another Company;
and prior to such repayment or release the Vendors undertake to the
Purchaser (on behalf of themselves and as trustee on behalf of each
Company) to keep each Company fully indemnified against any failure to
make any such repayment or any liability arising under any such
guarantee, indemnity, bond, letter of comfort or Encumbrance.
3.5 Upon compliance by the Vendors with the provisions of clauses 3.2, 3.3
and 3.4 the Purchaser shall:
(a) provide for the transfer by CHAPS of L18,548,937 to the Vendors'
Solicitors Account; and
(b) deliver to the Vendors a counterpart of the Tax Deed duly executed
by the Purchaser;
(c) procure the repayment by BRL and DBHL to Xx. Xxxxxxx of the sum of
L425,230 in full satisfaction of the Director's Loan by CHAPS to
the Vendors' Solicitors Account;
(d) procure the payment by BRL to Barclays Bank plc of L748,557 to
discharge the amount owed by BRL to Barclays Bank plc at
Completion by CHAPS to the account in the name of BRL, at the
Escrow Bank;
(e) provide for the transfer by CHAPS of the Escrow Amount to the
Escrow Account.
3.6 Payment by telegraphic transfer to the Vendors' Solicitors Account for
the sum of the amounts stated in clauses 3.5(a), (c) and (d) shall
constitute full payment of the Consideration (less the Escrow Amount) and
the Director's Loan and the Company overdraft accounts at Barclays Bank
plc and shall discharge the obligations of the Purchaser in relation to
the payment thereof and the Purchaser shall not be concerned to see that
the monies transferred are applied in paying the Vendors, the Vendors'
Group or any person in accordance with their respective entitlements.
4. PURCHASER'S POST-COMPLETION UNDERTAKINGS
4.1 The Purchaser undertakes to procure that each Company executes all
necessary applications, consents and other documentation prepared by the
Vendors' Group at the Vendors' Group expense in connection with
applications to the United Kingdom Medicine Control Agency for:
(a) cross referral product licences in favour of the Vendors' Group
relating to the following products only to the extent that the
cross referral product licences are used in the
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development of novel delivery systems for such products or used
for the distribution of such products outside the Territory:
(i) Salbutamol nebuliser 1% and 2%
(ii) Ipratropium nebuliser 1ml and 2ml
(iii) Saline Solution 2.5ml
(iv) Terbutaline nebuliser.
(b) change of name of the product licence holder in favour of the
Vendors' Group relating to the following products for which
product licence applications have been submitted but not granted:
(i) subject to the provisions of clause 5.3, Diclofenac MR
tablets 75mg and 100mg
(ii) Sodium Cromoglycate nebuliser
(iii) Nifedipine MR tablets 20mg
(iv) Betahistine 8mg and 16mg tablets.
(c) change of name of the product licence holder in favour of the
Vendors' Group relating to the following products for which
product licences have been granted:
(i) Medicinal Bath Oil
(ii) Buspirone Hydrochloride 5mg
(iii) Buspirone Hydrochloride 10mg
(iv) Captopril 12.5mg, 25mg and 50mg tablets
(v) Diltiazem 120mg capsules (for PL 16900/0018 only)
(vi) Tamoxifen 10mg, 20mg and 40mg tablets.
4.2 The Purchaser undertakes to procure that no Company shall withdraw or
amend any application currently pending made by any Company or made by
any Company pursuant to clause 4.1 to transfer a product licence or a
product licence application to the Vendors' Group or to create a
cross-referral product licence in favour of the Vendors' Group without
the written consent of the Vendors' Representative.
4.3 The Purchaser shall procure that APHL, DBHL and BRL shall as soon as
reasonably practicable and in any event prior to 31 January 2001, change
their corporate names to names which do not include the "Ashbourne" or
"Xxxxxx Xxxxxxx" or "Xxxxxxxxxxx Xxxxxx" names or any name intended or
likely to be confused or associated with the same and shall procure
registration of the new names with Companies House promptly thereafter
and upon receipt of confirmation from
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Companies House that such name changes have been effected, the Purchaser
shall provide written proof thereof to the Vendors' Representatives.
4.4 The Purchaser undertakes to procure that APHL provides the Vendors' Group
all such assistance as it may reasonably require at the cost of the
Vendors' Group in effecting the change of the Medicine Control Agency
stem member of Ashbourne Pharmaceuticals Limited.
4.5 The Purchaser shall procure that BRL at the cost of the Vendors' Group,
provides such reasonable assistance as the Vendors' Group requires in
terminating the employment of the Retained Employees within ten Business
Days from Completion.
4.6 The Purchaser agrees that it shall receive the proceeds of the Insurance
Claim as trustees for the Vendors' Group and shall notify Xx. Xxxxxxx
upon receipt of such proceeds and shall within five Business Days of its
receipt pay such proceeds to the Vendors' Group as directed by Xx.
Xxxxxxx. The Purchaser further agrees to forward any enquiries relating
to the Insurance Claim to Xx. Xxxxxxx as soon as practicable.
5. XX. XXXXXXX POST-COMPLETION UNDERTAKINGS
5.1 Xx. Xxxxxxx undertakes to procure that no later than ten Business Days
from Completion the Vendors' Group delivers letters to the Retained
Employees confirming that:
(a) such employees are from the date of this agreement employed by a
member of the Vendors' Group and not by BRL; and
(b) such employees' terms and conditions of employment and continuity
of employment remain unaffected.
5.2 Xx. Xxxxxxx undertakes to procure that no later than five Business Days
from Completion or later, if requested by the Purchaser BRL deliver to
the Purchaser in an electronically stored form acceptable to the
Purchaser:
(a) BRL's stock and stock control data;
(b) BRL's data processing data;
(c) BRL's sales order processing data;
(d) BRL's OPERA system which comprises sales module, purchase module
and nominal module;
(e) BRL's customer and supplier information and price lists.
5.3 Xx. Xxxxxxx undertakes to procure that the Vendors' Group executes all
necessary applications, consents and other documentation prepared by the
Vendors' Group at the Purchaser's Group's expense in connection with
applications to the United Kingdom Medicine Control Agency for cross
referral product licences in favour of the Purchaser's Group for the
products Diclofenac MR tablets 75mg and 100mg.
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5.4 Xx. Xxxxxxx undertakes to procure that the Vendors' Group within 20
Business Days of Completion delivers to the Purchaser copies of the
bio-equivalence studies for isosorbide mononitrate 60mg XL tablet and
50mg XL capsule which shall be utilised by the Purchaser only in
connection with application for product licences for such products in the
Republic of Ireland.
6. WARRANTIES
6.1 Xx. Xxxxxxx warrants to the Purchaser in the terms of the Warranties
which Warranties shall remain in full force and effect after Completion.
6.2 Any information supplied by or on behalf of any Company to or on behalf
of Xx. Xxxxxxx in connection with the Warranties, the Disclosure Letter
or otherwise in relation to the business and affairs of any Company shall
not constitute a representation or warranty or guarantee as to the
accuracy thereof by any Company and Xx. Xxxxxxx undertakes to the
Purchaser (on behalf of himself and as trustee of each Company and their
respective directors, employees, agents and advisers) that he will not
bring any and all claims which he might otherwise have against any
Company or any of their respective directors, employees, agents or
advisers in respect thereof including in respect of fraud or fraudulent
concealment.
6.3 Each of the Warranties shall be construed as a separate warranty, and
(unless expressly provided to the contrary) shall not be limited by the
terms of any of the other Warranties or by any other term of this
agreement.
6.4 The liability of Xx. Xxxxxxx under the Warranties shall be limited if and
to the extent that the limitations referred to in schedule 4 apply.
6.5 No information relating to any Company of which the Purchaser has
knowledge (actual or constructive) other than that contained in or
referred to in this agreement and/or included in the Disclosure Letter
and no investigation by or on behalf of the Purchaser shall prejudice any
claim by the Purchaser under the Warranties or reduce any amount
recoverable thereunder.
6A. INDEMNITIES
6A.1 Xx. Xxxxxxx undertakes to the Purchaser in the terms of schedule 6.
6A.2 Xx. Xxxxxxx undertakes to indemnify the Purchaser for and against all
liabilities, claims, losses, damages, costs and expenses incurred or
suffered by the Purchaser in the event of the failure of Holopack GmbH
("HOLOPACK") to supply all or any of the products currently supplied by
it pursuant to the Supply Agreement between Holopack and Ashbourne
Pharmaceuticals Limited during the six month period following such
failure provided that the amount payable in relation to any failure by
Holopack to supply product shall be limited on a product by product basis
as follows:
(a) for the product Ipratropium Nebuliser 250mg/ml 1 + 2 ml L185,016;
(b) for the product Salbutamol Nebuliser 1mg/ml and 2mg/ml L118,554;
(c) for the product Saline Diluent 2.5ml and for the product Saline
Medical Device Irrigation 20ml L1,836; and
16
(d) for the product Terbutaline Nebuliser 2.5mg/ml L7,824.
6A.3 If the Purchaser (acting reasonably) elects to withdraw
product marketed by the Purchaser using the ISOTARD
trademark to avoid litigation or other proceedings being
instituted by the registered proprietor of the trademark
ISOCARD, Xx. Xxxxxxx undertakes to purchase all Isotard
Stock in the possession of the Purchaser at the price at
which it was purchased by the Purchaser provided that the
aggregate purchase price payable by Xx. Xxxxxxx under this
clause 6A.3 shall not exceed L200,000 (exclusive of VAT).
6A.4 If the Purchaser (acting reasonably) elects to recall
product marketed by the Purchaser using the ISOTARD
trademark to avoid litigation or other proceedings being
instituted by the registered proprietor of the trademark
ISOCARD which product has previously been sold to
customers (the "RECALL"), Xx. Xxxxxxx undertakes to
purchase all such Isotard Stock at the prices at which it
was sold to customers by the Purchaser provided that the
aggregate amount payable by Xx. Xxxxxxx under this clause
6A.4 shall not exceed L140,000 (exclusive of VAT).
6A.5 Xx. Xxxxxxx undertakes to indemnify the Purchaser for all costs and
expenses incurred in, and fees payable pursuant to, the negotiation and
execution of a co-existence agreement between the Purchaser and the
registered proprietor of the trademark ISOCARD in relation to the use of
the ISOTARD trademark provided that:
(a) Xx. Xxxxxxx shall be given notice by the Purchaser of the
commencement of and kept informed as to the progress of, such
negotiations; and
(b) the aggregate amount payable by Xx. Xxxxxxx under this clause 6A.5
shall not exceed the amount which would be payable by Xx. Xxxxxxx
under clause 6A.3 had the Purchaser made the election contemplated
by clause 6A.3;
(c) the Purchaser shall not conclude such negotiations without prior
consultation with Xx. Xxxxxxx as to the proposed material terms of
any such agreement.
6A.6 In the event of a claim being satisfied by Xx. Xxxxxxx under clauses 6A.3
and/or 6A.4 then Xx. Xxxxxxx shall have no liability to the Purchaser
under clause 6A.5 and vice versa.
6A.7 Any amounts payable by Xx. Xxxxxxx under this clause 6A shall be made to
the Purchaser within five Business Days following Xx. Xxxxxxx being
invoiced therefor.
6A.8 For the purpose of this clause 6A, "PURCHASER" shall include the
Companies and the Purchaser's Group.
7. PROTECTION OF GOODWILL
7.1 Xx. Xxxxxxx hereby undertakes to procure that (except as otherwise agreed
in writing with the Purchaser) he will not either solely or jointly with
any other person, including without limitation any Related Persons
(either on their own account or as the agent of any other person):
17
(a) subject to the provision of clause 7.1(d) for a period of three
years from Completion carry on or be engaged or concerned or
(except as the holder of shares in a listed company which confer
not more than five per cent. of the votes which can generally be
cast at a general meeting of the company) interested directly or
indirectly in a business which supplies pharmaceuticals products
with the same active ingredients, presentation and strength as the
products listed at parts 1 to 3 inclusive of schedule 8 and the
product Isosorbide Mononitrate 30mg tablet SR in the United
Kingdom and/or the Republic of Ireland;
(b) subject to the provision of clause 7.1(d) for a period of three
years from Completion solicit or accept the custom of any person
in respect of pharmaceutical products with the same active
ingredients, presentation and strength as the pharmaceuticals
products listed at Parts 1 and 3 inclusive of schedule 8 supplied
by any Company in the United Kingdom and/or the Republic of
Ireland during the period of 24 months prior to Completion, such
person having been a customer of any Company in respect of such
products during such period;
(c) use any Trademark or any other name intended or likely to be
confused with any Trademark;
(d) nothing contained in the provisions of sub-clauses of sub-clauses
shall prevent:
(i) the sale by the Vendors' Group of Isosorbide Mononitrate
40mg S R tablets under the brand names Monit and/or Ismo to
fill prescriptions written by such brand names; or
(ii) the marketing and distribution of pharmaceuticals products
by the Vendors' Group to dispensing doctors in the
Territory.
7.2 Xx. Xxxxxxx hereby further undertakes for a period of three years from
Completion that he will not, and will not procure the Vendors' Group to,
directly or indirectly sell or otherwise dispose of any rights in the
following to a person other than the Vendors' Group:
(a) the cross-referral product licences referred to at clause 4.1(a);
(b) the product licence for Diltiazem 120mg capsules IPL 16900/0018;
(c) the product licences for Diclofenac MR tablets 75mg and 100mg
owned by the Vendors' Group; and
(d) the product licence for Aspirin 300mg e.c. owned by the Vendors'
Group.
7.3 Xx. Xxxxxxx agrees that the undertakings contained in this clause 7 are
reasonable and are entered into for the purpose of protecting the
goodwill of the business of each Company and that accordingly the benefit
of the undertakings may be assigned by the Purchaser and its successors
in title without the consent of the Vendors' Representative.
7.4 Each undertaking contained in this clause 7 is and shall be construed as
separate and severable and if one or more of the undertakings is held to
be against the public interest or unlawful or in
18
any way an unreasonable restraint of trade or unenforceable in whole or
in part for any reason the remaining undertakings or parts thereof, as
appropriate, shall continue to bind Xx. Xxxxxxx.
7.5 If any undertaking contained in this clause 7 shall be held to be void
but would be valid if deleted in part or reduced in application, such
undertaking shall apply with such deletion or modification as may be
necessary to make it valid and enforceable. Without prejudice to the
generality of the foregoing, such period (as the same may previously have
been reduced by virtue of this clause 7.5) shall take effect as if
reduced by six months until the resulting period shall be valid and
enforceable.
7.6 No provision of this agreement, by virtue of which this agreement is
subject to registration (if such be the case) under the Restrictive Trade
Practices Act 1976 (unless this agreement is a non-notifiable agreement
pursuant to section 27A of that Act), shall take effect until the day
after particulars of this agreement have been furnished to the
Director-General of Fair Trading pursuant to section 24 of that Act. For
this purpose the expression "this agreement" includes any agreement or
arrangement of which this agreement forms part and which is registrable
or by virtue of which this agreement is registrable.
8. CONFIDENTIAL INFORMATION
8.1 The Vendors shall:
(a) not, and shall procure that none of their Related Persons or any
director, officer or employee or adviser or agent of the Vendors'
Group shall, use or disclose to any person Confidential
Information; and
(b) use all reasonable endeavours to prevent the use or disclosure of
Confidential Information by any person other than by members of
the Purchaser's Group.
8.2 Clause 8.1 does not apply to:
(a) disclosure of Confidential Information to or at the written
request of the Purchaser;
(b) use or disclosure of Confidential Information required to be
disclosed by law, regulation, any revenue authority or the London
Stock Exchange;
(c) disclosure of Confidential Information to professional advisers
for the purpose of advising any of the Vendors; or
(d) Confidential Information which is in the public domain other than
by a breach by any of the Vendors of clause 8.1.
9. INTELLECTUAL PROPERTY
The Vendors shall not, and shall procure that none of the Vendors'
Related Persons or any third party shall, use or disclose to any person
any of the Intellectual Property owned by or licensed to any Company
except where such use or disclosure is required by the Purchaser pursuant
to the further assurance provisions of clause 13.
19
10. ANNOUNCEMENTS
10.1 The Vendors and the Purchaser shall not, without the prior written
consent of the other party, disclose the making of this agreement nor its
terms nor any other agreement referred to in this agreement and shall
procure that each of their Related Persons and its professional advisers
shall not make any such disclosure without the prior consent of the other
party unless disclosure is to its professional advisers or required by
law or by the London Stock Exchange provided that this clause 10.1 does
not apply to announcements, communications or circulars made or sent by
the Purchaser after Completion to customers, clients or suppliers of any
Company to the extent that it informs them of the Purchaser's acquisition
of the Shares or to any announcements sent by the Vendors or the
Purchaser after Completion containing only information which has become
generally available.
10.2 The restrictions contained in clause 10.1 shall apply without limit of
time.
11. COSTS
Unless expressly otherwise provided in this agreement each of the parties
shall bear its own legal, accountancy and other costs, charges and
expenses connected with the sale and purchase of the Shares.
12. EFFECT OF COMPLETION
12.1 The terms of this agreement (insofar as not performed at Completion and
subject as specifically otherwise provided in this agreement) shall
continue in force after and notwithstanding Completion.
12.2 The remedies of the Purchaser in respect of any breach of any of the
Warranties shall continue to subsist notwithstanding Completion.
13. FURTHER ASSURANCES
13.1 Following Completion the Vendors shall from time to time forthwith upon
request from the Purchaser at the Purchaser's expense do or procure the
doing of all acts and/or execute or procure the execution of all such
documents in a form reasonably satisfactory to the Purchaser for the
purpose of vesting in the Purchaser the full legal and beneficial title
to the:
(a) Shares and otherwise giving the Purchaser the full benefit of this
agreement; and
(b) Product Licences, the Product Licence Dossiers and the Trademarks.
13.2 For a reasonable period following Completion the Vendors shall, or shall
procure that the Vendors' Group shall, at the Purchaser's expense,
provide:
(a) such financial and regulatory information in relation to the
Product Licences, Product Licence Dossiers and Trademarks; and
20
(b) such assistance in relation to any information technology problems
arising from the Purchaser's use of the Business Data within a
reasonable time following the Purchaser's request for such
assistance; and
(c) such assistance in relation to the transfer to the Purchaser of
any telephone and facsimile numbers primarily used by the Company
as the Purchaser may reasonably request.
14. ENTIRE AGREEMENT
14.1 Each party on behalf of itself and as agent for each of its Related
Persons acknowledges and agrees with the other parties (each such party
acting on behalf of itself and as agent for each of its Related Persons)
that:
(a) this agreement together with any other documents referred to in
this agreement (together the "TRANSACTION DOCUMENTS") constitute
the entire and only agreement between the parties and their
respective Related Persons relating to the subject matter of the
Transaction Documents;
(b) neither it nor any of its Related Persons have been induced to
enter into any Transaction Document in reliance upon, nor have
they been given, any warranty, representation, statement,
assurance, covenant, agreement, undertaking, indemnity or
commitment of any nature whatsoever other than as are expressly
set out in the Transaction Documents and, to the extent that any
of them have been, it (acting on behalf of itself and as agent on
behalf of each of its Related Persons) unconditionally and
irrevocably waives any claims, rights or remedies which any of
them might otherwise have had in relation thereto;
PROVIDED THAT the provisions of this clause 14 shall not exclude any
liability which any of the parties or, where appropriate, their Related
Persons would otherwise have to any other party or, where appropriate, to
any other party's Related Persons or any right which any of them may have
in respect of any statements made fraudulently by any of them prior to
the execution of this agreement or any rights which any of them may have
in respect of fraudulent concealment by any of them.
15. VARIATIONS
This agreement may be varied only by a document signed by the Vendors'
Representative and the Purchaser.
16. WAIVER
16.1 A waiver of any term, provision or condition of, or consent granted
under, this agreement shall be effective only if given in writing and
signed by the waiving or consenting party and then only in the instance
and for the purpose for which it is given.
16.2 No failure or delay on the part of any party in exercising any right,
power or privilege under this agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such
21
right, power or privilege preclude any other or further exercise thereof
or the exercise of any other right, power or privilege.
16.3 No breach of any provision of this agreement shall be waived or
discharged except with the express written consent of the Vendors'
Representative and the Purchaser.
16.4 The rights and remedies herein provided are cumulative with and not
exclusive of any rights or remedies provided by law.
17. INVALIDITY
17.1 If any provision of this agreement is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction:
17.2 the validity, legality and enforceability under the law of that
jurisdiction of any other provision; and
17.3 the validity, legality and enforceability under the law of any other
jurisdiction of that or any other provision,
shall not be affected or impaired in any way.
18. NOTICES
18.1 Any notice, demand or other communication given or made under or in
connection with the matters contemplated by this agreement shall be in
writing and shall be delivered personally or sent by fax or prepaid first
class post (air mail if posted to or from a place outside the United
Kingdom):
In the case of the Purchaser to:
Xxxxx Holdings plc
Seagoe Industrial Estate
Xxxxxxxxx
Xx. Xxxxxx
Xxxxxxxx Xxxxxxx XX00 0XX
Fax: 00000 000000
Attention: Xxxxxxx Xxxxxxxx
with a copy to the Purchaser's Solicitors at the address set out in this
agreement marked for the attention of Xxxxxx Xxxxx/Xxxxxx Xxxxxx.
In the case of the Vendors' Representative to:
Xx. X X Xxxxxxx
Hill Farm
Victors Barns
Brixworth
Northampton
22
XX0 0XX
Fax: 00000 000000
Attention: Xx. X X Xxxxxxx
with a copy to the Vendors' Solicitors at the address set out in this
agreement marked for the attention of Xxx Xxxxxx
and shall be deemed to have been duly given or made as follows:
(a) if personally delivered, upon delivery at the address of the
relevant party;
(b) if sent by first class post, two Business Days after the date of
posting; and
(c) if sent by fax, when despatched;
provided that if, in accordance with the above provisions, any such
notice, demand or other communication would otherwise be deemed to be
given or made after 5.00 p.m. on a Business Day such notice, demand or
other communication shall be deemed to be given or made at 9.00 a.m. on
the next Business Day.
18.2 A party may notify the other party to this agreement of a change to its
name, relevant addressee, address or fax number for the purposes of
clause 18.1 provided that such notification shall only be effective on:
(a) the date specified in the notification as the date on which the
change is to take place; or
(b) if no date is specified or the date specified is less than five
Business Days after the date on which notice is given, the date
falling five Business Days after notice of any such change has
been given.
19. COUNTERPARTS
This agreement may be executed in any number of counterparts which
together shall constitute one agreement. Any party may enter into this
agreement by executing a counterpart and this agreement shall not take
effect until it has been executed by both parties.
20. GOVERNING LAW AND JURISDICTION
20.1 This agreement (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this agreement
or its formation) shall be governed by and construed in accordance with
English law.
20.2 Each of the parties to this agreement irrevocably agrees that the courts
of England shall have exclusive jurisdiction to hear and decide any suit,
action or proceedings, and/or to settle any disputes, which may arise out
of or in connection with this agreement (respectively, "PROCEEDINGS" and
"DISPUTES") and, for these purposes, each party irrevocably submits to
the jurisdiction of the courts of England.
23
20.3 Each party irrevocably waives any objection which it might at any time
have to the courts of England being nominated as the forum to hear and
decide any Proceedings and to settle any Disputes and agrees not to claim
that the courts of England are not a convenient or appropriate forum for
any such Proceedings or Disputes and further irrevocably agrees that a
judgment in any Proceedings or Disputes brought in any court referred to
in this clause 20 shall be conclusive and binding upon the parties and
may be enforced in the courts of any other jurisdiction.
20.4 Without prejudice to any other permitted mode of service the parties
agree that service of any claim, writ, notice or other document
("DOCUMENTS") for the purpose of any Proceedings begun in England shall
be duly served upon it if delivered personally or sent by registered
post, in the case of:
(a) any of the Vendors to the Vendors' Solicitors at the address set
out in this agreement (marked for the attention of Xxx Xxxxxx);
and
(b) the Purchaser to the Purchaser's Solicitors at the address set out
in this agreement (marked for the attention of Xxxxxx Xxxxx/Xxxxxx
Xxxxxx)
or such other person and address in England and/or Wales as the Vendors'
Representative shall notify the Purchaser in writing or the Purchaser the
Vendors' Representative from time to time.
21. GROSS UP
All sums payable by Xx. Xxxxxxx under schedule 6 shall be paid free and
clear of all deductions or withholdings (including Tax) unless the
deduction or withholding is required by law, in which event or in the
event that the Purchaser shall incur any liability for Tax chargeable or
assessable in respect of any payment pursuant to this agreement, Xx.
Xxxxxxx shall pay such additional amounts as shall be required to ensure
that the net amount received and retained by the Purchaser (after Tax)
will equal the full amount which would have been received and retained by
it had no such deduction or withholding been made and/or no such
liability to Tax been incurred and in applying this clause 21 no account
shall be taken of the extent to which any liability for Tax may be
mitigated or offset by any Relief (as defined in the Tax Deed) available
to the Purchaser so that where such Relief is available the additional
amount payable hereunder shall be the amount which would have been
payable in the absence of such availability.
22. ESCROW ARRANGEMENTS
22.1 OPERATION OF THE ESCROW ACCOUNT
(a) The Escrow Amount shall be paid to the Escrow Account by the
Purchaser at Completion in accordance with clause 3.6 and the
monies making up the Escrow Amount shall be kept separate from and
not co-mingled with any other monies (save for interest on the
Escrow Amount).
(b) Neither the Vendors' Solicitors nor the Purchaser's Solicitors
shall be deemed to be trustees and shall have no obligations in
connection with the Escrow Account or its administration other
than those set out in this clause 22.
24
(c) No payment out of the Escrow Account shall be authorised nor will
it be requested except as prescribed in clauses 2.2 1(d) to (g)
inclusive and following the delivery to the Escrow Bank of
mandated instructions in the agreed terms signed by one partner of
each of the Vendors' Solicitors and Purchaser's Solicitors. Any
signature and/or action required so that a payment may be made
under the terms of this clause 22 shall not be unreasonably
withheld or delayed.
(d) If the Contributions Agency notifies the Company that no amount in
relation to Bonus NIC is payable by the Company, then within five
Business Days of the receipt of such notice each of the Vendors'
Representative and the Purchaser shall give or procure that
instructions are given to the Escrow Bank in accordance with
clause 22.1(c) for a sum to be paid to the Vendors' Representative
on behalf of the Vendors equal to the Escrow Amount, plus all
accrued interest in accordance with clause 22.1(g).
(e) If the Contributions Agency notifies the Company that Bonus NIC is
payable by the Company then subject to the provisions of clause 5
of the Tax Deed (with necessary changes) within five Business Days
of receipt of such notice each of the Vendors' Representative and
the Purchaser shall give or procure that instructions are given to
the Escrow Bank in accordance with clause 22.1(c) and, if
applicable clause 22.1(g) for a sum to be paid to the Purchaser
equal to the lesser of the Bonus NIC and the Escrow Amount
(including all accrued interest in relation to the Escrow Amount).
(f) If following a payment to the Purchaser pursuant to clause 22.1(e)
any balance remains in the Escrow Account, then each of the
Vendors' Representatives and the Purchaser shall give or procure
that instructions are given to the Escrow Bank in accordance with
clause 22.1(c) for a sum to be paid to the Vendors' Representative
on behalf of the Vendors equal to such balance plus any accrued
interest remaining in thereon in accordance with clause 22.1(g).
(g) Interest accruing to the Escrow Account shall belong to the
Purchaser to the extent that any such interest is necessary to be
added to the Escrow Amount in order to equal any Bonus NIC payable
pursuant to clause 22.1(e), and in all other cases it shall belong
to the Vendors and the Escrow Bank shall be mandated to pay such
interest accordingly.
(h) All payment under this clause 22 to be made:
(i) to the Purchaser, shall be paid by CHAPS to the Purchaser's
Solicitors Account; and
(ii) to the Vendors, shall be paid by CHAPS to the Vendors'
Solicitors Account,
or by CHAPS to such other account as any party shall notify the
others in writing from time to time.
(i) Any payment to the Purchaser pursuant to this clause 22 shall be
considered to be a reduction in the Consideration.
25
23. EXCLUDED CONTRACTS
23.1 Xx. Xxxxxxx agrees with the Purchaser with effect from the Completion
Date to procure that the Vendors' Group assumes the obligations of and
becomes entitled to the benefits of the Companies under the Excluded
Contracts and Xx. Xxxxxxx shall procure that the Vendors' Group carries
out, performs and completes all the obligations and liabilities created
by or arising under the Excluded Contracts from the Completion Date and
Xx. Xxxxxxx shall indemnify the Purchaser and keep it fully indemnified
against all liabilities, losses, actions, proceedings, costs, claims,
demands and expenses brought or made against or incurred by the Purchaser
in respect of the non-performance or defective or negligent performance
by the Vendors' Group of the Excluded Contracts.
23.2 In so far as any of the Excluded Contracts are not assignable to the
Vendors' Group without the agreement of or novation by or consent to the
assignment from another party, this agreement shall not constitute an
assignment or attempted assignment if such assignment or attempted
assignment could constitute a breach of the same. In the event that
consent or novation is required to such assignment:
23.2.1 the Purchaser shall, at Xx. Xxxxxxx'x request (acting reasonably) and
cost, use reasonable endeavours with the co-operation of Xx Xxxxxxx
and/or the Vendors' Group to procure such novation or assignment;
23.2.2 unless and until any such Excluded Contract shall be novated or assigned
the Purchaser shall hold the same in trust for the Vendors' Group and its
successors in title absolutely and Xx. Xxxxxxx shall procure that the
Vendors' Group shall (if such sub-contracting is permissible and lawful
under the Excluded Contract in question) act as the Purchaser's
sub-contractor and perform all the obligations of the Purchaser under
such Excluded Contract;
23.2.3 unless and until any such Excluded Contract shall be novated or assigned
the Purchaser will (so far as it lawfully may) give all such assistance
to the Vendors' Group (and at the cost of Xx. Xxxxxxx) as Xx. Xxxxxxx may
reasonably require to enable it to enforce its rights under such Excluded
Contract.
23.3 If such consent or novation is not obtained the Purchaser will co-operate
with the Vendors' Group in any reasonable arrangement designed to provide
for the Vendors' Group the benefits under any of the Excluded Contracts
including enforcement (subject to the Purchaser being indemnified and
secured to its reasonable satisfaction against all costs and expenses
which may be incurred by reason of such enforcement) at the cost and for
the account of Xx. Xxxxxxx or as Xx. Xxxxxxx shall direct of any and all
rights of the Purchaser against the other party to the Excluded Contract
arising out of any cancellation by such other party or otherwise. If and
to the extent that in respect of such Excluded Contracts any such
arrangements cannot be made neither the Purchaser nor Xx. Xxxxxxx shall
without prejudice to clause 23.1 have any further obligation to the
other.
23.4 To the extent that any payment is made to the Purchaser in respect of the
Excluded Contracts on or after the Completion Date the Purchaser shall
receive the same as trustee and shall record such payments separately in
its books and shall account to the Vendors' Group as directed by Xx.
Xxxxxxx for the same within five Business Days of receipt.
26
23.5 If Xx. Xxxxxxx shall reasonably require, the Purchaser shall (subject to
the Purchaser being indemnified and secured to its reasonable
satisfaction against all costs and expenses incurred by such action)
procure that the Companies take such action as Xx. Xxxxxxx may reasonably
request in writing to negotiate, avoid, dispute, resist, compromise or
defend or appeal against any claims or disputes relating to or arising
from the Excluded Contracts including the institution and defence of
proceedings and the instruction of any agent or professional advisor of
Xx. Xxxxxxx or the delegation of such action to Xx. Xxxxxxx.
IN WITNESS whereof this agreement has been executed on the date first above
written.
27
SCHEDULE 1
PARTICULARS RELATING TO THE COMPANY
I. BRL
----------------------------------------------------------------------------------------------------------------
NAMES & ADDRESSES OF THE NUMBER OF SHARES HELD IN CASH CONSIDERATION (L)
VENDORS XXXXXXXXXXX-XXXXXX LIMITED
-
----------------------------------------------------------------------------------------------------------------
1. Dallas Xxxx Xxxxxxx 97 Ordinary and 969,903 A L18,533,418
The Old Rectory Ordinary
Xxxxxxxxxxxx
Xxxxxx Xxxxxxxxxx
Xxxxxxxxxxxxxx XX00 0XX
----------------------------------------------------------------------------------------------------------------
2. Xxxxx Xxxxxxx Xxxxxxx 1 Ordinary and 9,999 A L191,066
The Old Rectory Ordinary
Xxxxxxxxxxxx
Xxxxxx Xxxxxxxxxx
Xxxxxxxxxxxxxx XX00 0XX
----------------------------------------------------------------------------------------------------------------
3. Dallas Xxxx Xxxxxxx 2 Ordinary and 19,998 A L382,132
The Old Rectory Ordinary
Xxxxxxxxxxxx
Xxxxxx Xxxxxxxxxx
Xxxxxxxxxxxxxx XX00 0XX and
Xxx Xxxxxx of Seckloe House,
101 North 00xx Xxxxxx, Xxxxxxx
Xxxxxx Xxxxxx, XXX0 0XX as
trustees of The Xxxxxx
Xxxxxxx 1999 Settlement
-----------------------------------------------------------------------------------------------------------------
II. APHL
----------------------------------------------------------------------------------------------------------------
NAMES & ADDRESSES OF THE NUMBER OF SHARES HELD IN CASH CONSIDERATION (L)
VENDORS ASHBOURNE PHARMACEUTICALS
(HOLDINGS) LIMITED
----------------------------------------------------------------------------------------------------------------
1. Dallas Xxxx Xxxxxxx 1 1
The Old Rectory
Xxxxxxxxxxxx
Xxxxxx Xxxxxxxxxx
Xxxxxxxxxxxxxx XX00 0XX
----------------------------------------------------------------------------------------------------------------
2. Xxxxx Xxxxxxx Xxxxxxx 1 1
The Old Rectory
Arthingworth
Market Harborough ~
Xxxxxxxxxxxxxx XX00 0XX
----------------------------------------------------------------------------------------------------------------
28
III. CHARGELINK
----------------------------------------------------------------------------------------------------------------
NAMES & ADDRESS OF THE NUMBER OF SHARES HELD IN CASH CONSIDERATION (L)
VENDORS CHARGELINK LIMITED
----------------------------------------------------------------------------------------------------------------
1. Dallas Xxxx Xxxxxxx 1 1
The Old Rectory
Xxxxxxxxxxxx
Xxxxxx Xxxxxxxxxx
Xxxxxxxxxxxxxx XX00 0XX
-------------- ------------------------------- ---------------------------------- -------------------------------
IV. DBHL
-------------- ------------------------------- -------------------------------- -------------------------------
NAME & ADDRESS OF THE VENDOR NUMBER OF SHARES HELD IN DALLAS CASH CONSIDERATION (L)
XXXXXXX HEALTHCARE LIMITED
-------------- ------------------------------- -------------------------------- -------------------------------
1. Dallas Xxxx Xxxxxxx 100 100
The Old Rectory
Xxxxxxxxxxxx
Xxxxxx Xxxxxxxxxx
Xxxxxxxxxxxxxx XX00 0XX
-------------- ------------------------------- -------------------------------- -------------------------------
29
SCHEDULE 2
PARTICULARS RELATING TO THE COMPANIES
ASHBOURNE PHARMACEUTICALS (HOLDINGS) LIMITED
Authorised share capital: L10,000 - 10,000 ordinary shares of L1 each
Issued share capital: L2 -2 ordinary shares of L1 each
Directors: Dallas Xxxx Xxxxxxx
Xxxxx Xxxxxxx Xxxxxxx
Secretary: Xxxxx Xxxxxxx Xxxxxxx
Auditors: None
Accounting reference date: 31 March
Registered office: Victors Xxxx
Xxxx Xxxx
Xxxxxxxxx
Xxxxxxxxxxx
XX0 0XX
30
XXXXXXXXXXX-XXXXXX LIMITED
Authorised share capital: L1,000,900 - 100 ordinary shares of L1 each
and 999,900 A ordinary shares of L1 each
Issued share capital: L1,000,000 - 100 ordinary shares of L1 each
and 999,900 A ordinary shares of L1 each
Directors: Dallas Xxxx Xxxxxxx
Xxxxx Xxxxxxx Xxxxxxx
Secretary: Xxxxx Xxxxxxx Xxxxxxx and Xxx Xxxxxx
Auditors: Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxxx
Xxxxxxxxx
Xxxxxxxxx XX00 0XX
Accounting reference date: 31 March
Registered office: Victors Xxxx
Xxxx Xxxx
Xxxxxxxxx
Xxxxxxxxxxx
XX0 0XX
31
CHARGELINK LIMITED
Authorised share capital: L1,000 - 1,000 ordinary shares of L1 each
Issued share capital: L1 - 1 ordinary share of L1
Directors: Dallas Xxxx Xxxxxxx
Xxxxx Xxxxxxx Xxxxxxx
Secretary: Dallas Xxxx Xxxxxxx
Auditors: None
Accounting reference date: 31 March
Registered office: Victors Xxxx
Xxxx Xxxx
Xxxxxxxxx
Xxxxxxxxxxx
XX0 0XX
32
XXXXXX XXXXXXX HEALTHCARE LIMITED
Authorised share capital: L100 - 100 ordinary shares of L1 each
Issued share capital: L100 - 100 ordinary shares of L1 each
Directors: Dallas Xxxx Xxxxxxx
Xxxxx Xxxxxxx Xxxxxxx
Secretary: Dallas Xxxx Xxxxxxx and Xxx Xxxxxx
Auditors: Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxxx
Xxxxxxxxx
Xxxxxxxxx XX00 0XX
Accounting reference date: 31 March
Registered Office: Victors Xxxx
Xxxx Xxxx
Xxxxxxxxx
Xxxxxxxxxxx
XX0 0XX
33
SCHEDULE 3
THE WARRANTIES
For the purpose of this schedule 3 "COMPANY" means APHL, BRL, Chargelink and
DBHL all of them and each of them as the context admits.
Any Warranty expressed to be given "to the best of Xx. Xxxxxxx'x knowledge and
belief" or "so far as Xx. Xxxxxxx is aware" or otherwise qualified by reference
to the knowledge of Xx. Xxxxxxx shall not be qualified in the manner stated
unless Xx. Xxxxxxx establishes that he has made all reasonable enquiries of the
directors, employees and agents of each Company and relevant third parties to
establish the truth and accuracy of that Warranty.
1. THE COMPANIES AND THE XXXXXXX SHARES
1.1 INCORPORATION AND EXISTENCE
Each Company is a limited company incorporated under English law and
has been in continuous existence since incorporation.
1.2 THE SHARES
(a) The Vendors are the only legal and beneficial owner of the
Shares.
(b) None of the Companies have allotted any shares other than the
Shares and the Shares are fully paid or credited as fully
paid.
(c) There is no Encumbrance in relation to any of the Shares or
unissued shares in the capital of the Companies. No person has
claimed to be entitled to an Encumbrance in relation to any of
the Shares and none of the Companies are under any obligation
(whether actual or contingent) to sell, charge or otherwise
dispose of any of the Shares or any interest therein to any
person.
(d) Other than this agreement, there is no agreement, arrangement
or obligation requiring the creation, allotment, issue, sale,
transfer, redemption or repayment of, or the grant to a person
of the right (conditional or not) to require the allotment,
issue, sale, transfer, redemption or repayment of, a share in
the capital of the Companies (including an option or right of
pre-emption or conversion).
(e) None of the Companies has any subsidiary undertakings.
(f) None of the Companies owns any shares or stock in the capital
of nor does it have any beneficial or other interest in any
company or business nor does any Company control or take part
in the management of any other company or business
organisation.
34
(g) APHL and Chargelink are and always have been since
incorporation dormant companies and have never traded.
2. ACCOUNTS
2.1 GENERAL
(a) The Accounts show a true and fair view of the:
(i) assets, liabilities, financial position and state of
affairs at the Accounts Date; and
(ii) the profits and losses for the financial year ended
on the Accounts Date
of the Company
(b) The Accounts have been prepared and audited in accordance with
the standards, principles and practices specified on the face
of the Accounts applied on a consistent basis and subject
thereto in accordance with the law and Generally Accepted
Accounting Standards, Principles and Policies in the United
Kingdom consistently applied.
(c) The Accounts have been prepared on a basis consistent with the
basis upon which all audited accounts of the Company have been
prepared in respect of the three years before the Accounts
Date.
2.2 LIABILITIES
The Accounts make full provision or reserve for or disclose all
liabilities (including all contingent or deferred liability to Tax) of
the Company whether actual, contingent or otherwise.
2.3 EXTRAORDINARY AND EXCEPTIONAL ITEMS
The results shown by the audited profit and loss account of the Company
for each of the three financial years of the Company ended on the
Accounts Date have not (except as disclosed in those accounts) been
affected by an extraordinary, exceptional or non recurring item or by
any other matter making the profits or losses for a period covered by
any of those accounts unusually high or low.
2.4 VALUATION OF STOCK
In the Accounts:
(a) stock was valued in the same way as in the two preceding
financial years and on the basis of the lower of cost and net
realisable value; and
(b) all redundant and obsolete stock was written off and full
provision was made for all slow-moving and damaged stock.
35
2.5 OFF BALANCE SHEET FINANCING
No Company is engaged in any financing (including the incurring of any
borrowing or any 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.
2.6 ACCOUNTING AND OTHER RECORDS
(a) The books of account and all other records of the Company
(including any which it may be obliged to produce under any
contract now in force) are up-to-date, in its possession and
are true and complete in accordance with the law and
applicable standards, principles and practices generally
accepted in the United Kingdom.
(b) All deeds and documents (properly stamped where stamping is
necessary for enforcement thereof) belonging to the Company or
which ought to be in the possession of the Company are in the
possession of the Company.
2.7 ACCOUNTING REFERENCE DATE
The accounting reference date of the Company under section 224 of the
Companies Xxx 0000 is, and has always been, 31 March.
2.8 COMPANY LEDGERS
The sales ledgers and stock listings of the Companies as at 31 May 1999
and the purchase ledgers of the Companies as at 30 April 1999 in the
agreed terms have been prepared by the Company with due care and
attention and are not materially inaccurate.
3. CHANGES SINCE THE ACCOUNTS DATE
3.1 GENERAL
Since the Accounts Date:
(a) the Company has carried on its business prudently and in the
ordinary and usual course and so as to maintain the business
as a going concern; and
(b) there has been no material adverse change in the financial or
trading position or prospects of the Company.
3.2 SPECIFIC
Since the Accounts Date:
(a) the Company has not, other than in the ordinary course of
trading:
36
(i) disposed of, or agreed to dispose of, an asset; or
(ii) assumed or incurred, or agreed to assume or incur, a
liability, obligation or expense (actual or
contingent);
and in the case of a disposal or agreement to dispose of an
asset for an amount which is lower than book value or an open
market arm's length value, whichever is the higher;
(b) the Company has not acquired or agreed to acquire an asset for
an amount which is higher than open market arm's length value;
(c) the Company has not made, or agreed to make, capital
expenditure exceeding in total L5,000 or incurred, or agreed
to incur, a commitment or connected commitments involving
capital expenditure exceeding in total L5,000;
(d) no Substantial Supplier or Substantial Customer has ceased or
substantially reduced its trade with the Company or has
altered the terms of trade to the Company's disadvantage;
(e) the Company has not declared, paid or made a dividend or other
distribution (including a distribution within the meaning of
the TA) except to the extent provided in the Accounts;
(f) no resolution of the shareholders of the Company has been
passed (except for those representing the ordinary business of
an annual general meeting);
(g) the Company has not repaid or redeemed share or loan capital,
or made (whether or not subject to conditions) an agreement or
arrangement or undertaken an obligation to do any of those
things;
(h) the Company has not repaid any sum in the nature of borrowings
in advance of any due date or made any loan or incurred any
indebtedness (including in each case inter group);
(i) the Company has not paid nor is under an obligation to pay any
service, management or similar charges or any interest or
amount in the nature of interest to any other person or
incurred any liability to make such a payment or made any
payment to the Vendor or any of his connected persons
whatsoever;
(j) the Company has not paid any bonuses or made any payment in
the nature of a bonus to any of the Vendors, or their Related
Persons or the Retained Employees;
(k) the Company has not received or agreed to receive any payment
from any debtor of the Company other than in the ordinary
course of business; and
(l) the Company has paid all creditors of the Company within the
credit terms normally enjoyed by the Company.
37
4. ASSETS
4.1 TITLE AND CONDITION
(a) There are no Encumbrances, nor has the Company agreed to
create any Encumbrances, over any part of its undertaking or
assets and each asset used by the Company (tangible or
intangible) is:
(i) legally and beneficially owned by the Company; and
(ii) where capable of possession, in the possession of the
Company.
(b) The Company owns each asset (tangible or intangible) necessary
for the operation of its business as currently conducted and
without limitation no rights (other than rights as
shareholders in the Company) relating to the business of the
Company are owned or otherwise enjoyed by or on behalf of the
Vendors.
4.2 HIRE PURCHASE AND LEASED ASSETS
The Company is not party to any xxxx of sale or any hiring or leasing
agreement, hire purchase agreement, credit or conditional sale
agreement, agreement for payment on deferred terms or any other similar
agreement.
4.3 STOCK
(a) The Company's stock is of satisfactory quality and saleable in
the usual course of its business in accordance with its
current price list.
(b) The Company has not supplied, or agreed to supply, goods which
have been, or will be, defective or which fail, or will fail,
to comply with their terms of sale.
(c) No goods in a state ready for supply by the Company are, or
will be, defective or will fail to comply with terms of sale
similar to terms of sale on which similar goods have
previously been sold by the Company.
5. INTELLECTUAL PROPERTY
5.1 GENERAL
(a) The Company is the sole and absolute legal and beneficial
owner of all Intellectual Property used in connection with its
business and where appropriate such Intellectual Property is
registered in or applied for in the name of the Company. Full
and accurate details of registered Intellectual Property which
is owned by each Company is set out in schedules 7 and 8.
38
(b) The Intellectual Property used by the Company in connection
with its business is free from Encumbrances.
5.2 RENEWALS/MAINTENANCE
All registration and renewal fees have been paid in relation to the
Intellectual Property which is registered or applied for in the name of
the Company. All procedural steps have been taken diligently for the
prosecution and maintenance of such Intellectual Property and all steps
have been taken diligently for the maintenance and protection of
unregistered Intellectual Property owned by the Company.
5.3 LICENCES
(a) The terms of all licences or rights which have been granted by
the Company, or which the Company or the Vendors or any of
their Related Persons intends to enter into for the purposes
of the business of the Company, or which are being currently
negotiated, or other agreement or consents or undertakings
entered into by the Company or the Vendors or any of their
Related Persons relating to the Intellectual Property owned by
or licensed to the Company are set out in the Disclosure
Letter, and unless disclosed neither the Company nor the
Vendors nor any of their Related Persons is obliged to enter
into any such agreement relating to the business of the
Company. There has been or is no breach nor is there any fact
or matter which would or may create a breach of such licences
or undertakings.
(b) The terms of all licences or rights granted to the Company or
which the Company or the Vendors or any of their Related
Persons intends to enter into for the purposes of the business
of the Company, or which are being currently negotiated, or
other agreement or consents or undertakings entered into by
the Company or the Vendors or any of their Related Persons
relating to the Intellectual Property used in the business of
the Company are set out in the Disclosure Letter and neither
the Company nor the Vendors nor any of their Related Persons
is obliged to enter into any such agreement relating to the
business of the Company. There has been or is no breach nor,
so far as Xx. Xxxxxxx is aware, is there any fact or matter
which would or may create a breach of such licences or
undertakings.
5.4 INFRINGEMENT
(a) The use by the Company of any Intellectual Property used in
the business of the Company does not so far as Xx. Xxxxxxx is
aware infringe and the processes or methods employed, services
provided, the business conducted and the products used,
manufactured and dealt in or supplied by the Company so far as
Xx. Xxxxxxx is aware do not infringe the Intellectual Property
of any other person.
(b) No proceedings, claims or complaints have been brought or
threatened in writing by any third party or competent
authority in relation to the Intellectual Property owned by or
licensed to the Company including any concerning title
subsistence validity or
39
enforceability or grant of any right or interest in such
Intellectual Property nor, so far as Xx. Xxxxxxx is aware, is
there any fact or matter which would or may give rise to such
proceedings, claims or complaints.
(c) No third party is infringing or misusing or threatening to
infringe or misuse the Intellectual Property owned by or
licensed to the Company.
(d) The Company is not subject to any injunction, undertaking or
court order or order of any other authority of competent
jurisdiction not to use or restricting the use of any
Intellectual Property.
5.5 CONFIDENTIAL AGREEMENTS
(a) Save as disclosed, neither the Vendors nor any of their
Related Persons nor the Company has entered into any
confidentiality or other agreement or is subject to any duty
which restricts the free use or disclosure of any information
used in the business of the Company and there is no breach of
any such agreement or duty.
(b) The Intellectual Property owned by the Company, together with
the licences disclosed pursuant to paragraph 5.3, comprises
all the Intellectual Property necessary for the operation of
the business of the Company as now conducted and such
Intellectual Property will not be adversely affected by the
transaction contemplated by this agreement.
(c) All documents material to the title to Intellectual Property
of the Company form part of the records or materials in the
possession and ownership of the Company.
6. EFFECT OF SALE
6.1 Neither the execution nor performance of this agreement or any document
to be executed at or before Completion will:
(a) result in the Company losing the benefit of a Permit or an
asset, licence, grant, subsidy, right or privilege which it
enjoys at the date of this agreement in any jurisdiction; or
(b) conflict with, or result in a breach of, or give rise to an
event of default under, or require the consent of a person
under, or enable a person to terminate, or relieve a person
from an obligation under, an agreement, arrangement or
obligation to which the Company is a party or a legal or
administrative requirement in any jurisdiction; or
(c) result in any Substantial Customer being entitled to or, so
far as Xx. Xxxxxxx is aware, cease dealing with the Company or
substantially to reduce its existing level of business or to
change the terms upon which it deals with the Company; or
40
(d) result in any Substantial Supplier being entitled to or, so
far as Xx. Xxxxxxx is aware, cease supplying to the Company or
substantially to reduce its supplies to or to change the terms
upon which it supplies the Company;
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.
7. CONSTITUTION
7.1 INTRAVIRES
The Company has the power to carry on its business as now conducted and
the business of the Company has at all times been carried on intra
xxxxx.
7.2 MEMORANDUM AND ARTICLES
The memorandum and articles of association of the Company in the form
annexed to the Disclosure Letter are true and complete copies and have
embodied therein or annexed thereto copies of all resolutions and
agreements as are referred to in section 380 of the Companies Xxx 0000,
and all amendments thereto (if any) were duly and properly made.
7.3 REGISTER OF MEMBERS
The register of members of the Company has been properly kept and
contains true and complete records of the members from time to time of
the Company and the Company has not received any notice or allegation
that any of them is incorrect or incomplete or should be rectified.
7.4 POWERS OF ATTORNEY
The Company has not executed any power of attorney or conferred on any
person other than its directors, officers and employees any authority
to enter into any transaction on behalf of or to bind the Company in
any way and which power of attorney remains in force or was granted or
conferred within three years of the Completion Date.
7.5 STATUTORY BOOKS AND FILINGS
(a) The statutory books of the Company are up to date, in its
possession and are true and complete in accordance with the
law.
(b) All resolutions, annual returns and other documents required
to be delivered to the Registrar of Companies (or other
relevant company registry or other corporate authority in any
jurisdiction) have been properly prepared and filed and are
true and complete and the common seal of the Company is in its
possession.
41
8. INSURANCE
8.1 INSURANCE
The Company has at all material times been and is at the date of this
agreement adequately insured against accident, damage, injury, third
party loss (including product liability), loss of profits and any other
risk normally insured against by a prudent person operating the types
of business operated by the Company and has at all times effected such
insurances as required by law.
8.2 CLAIMS
No claim is outstanding under any insurance and indemnity policy in
respect of which the Company has an interest and so far as Xx. Xxxxxxx
is aware no matter exists which might give rise to a claim under any of
such policies.
9. CONTRACTUAL MATTERS
9.1 VALIDITY OF AGREEMENTS
(a) Neither the Company nor Xx. Xxxxxxx has any knowledge of the
invalidity of, or a ground for termination, avoidance or
repudiation of, an agreement, arrangement or obligation to
which the Company is a party. No party with whom the Company
has entered into an agreement, arrangement or obligation has
given notice of its intention to terminate, or has sought to
repudiate or disclaim, the agreement, arrangement or
obligation.
(b) No party with whom the Company has entered into an agreement
or arrangement is in material breach of the agreement or
arrangement. So far as Xx. Xxxxxxx is aware no matter exists
which might give rise to such breach.
(c) The Company is not in breach of any agreement or arrangement.
No matter exists which might give rise to such breach.
9.2 STANDARD TERMS AND CONDITIONS
A copy of the standard terms and conditions of business of the Company
are annexed to the Disclosure Letter.
9.3 SUPPLY CONTRACTS
Full and accurate details of all agreements or arrangements for the
supply of stock, raw materials, products or goods to or by the Company
which involve or are likely to involve the supply of goods the
aggregate sale value of which will represent in excess of five per
cent. of the turnover for the financial year of the Company ended on
the Accounts Date are contained in the Disclosure Letter and copies
annexed to it.
42
9.4 MATERIAL AGREEMENTS
The Company is not a party to and is not liable under any contract,
transaction, arrangement or liability which involves, or is likely to
involve obligations or liabilities which, by reason of their nature or
magnitude, ought reasonably to be made known to an intending purchaser
of the Shares including any which:
(i) is of an unusual or abnormal nature, or outside the
ordinary and proper course of business;
(ii) is of a long-term nature (that is, unlikely to have
been fully performed, in accordance with its terms,
more than six months after the date on which it was
entered into or undertaken);
(iii) is incapable of termination in accordance with its
terms, by the Company, on 60 days' notice or less;
(iv) cannot readily be fulfilled or performed by the
Company on time without undue or unusual expenditure
of money, effort or personnel;
(v) involves payment by the Company by reference to
fluctuations in the index of retail prices, or any
other index or in the rate of exchange for any
currency;
(vi) involves an aggregate outstanding expenditure or
other liability by the Company of more than L10,000;
or
(vii) restricts its freedom to engage in any activity or
business or confines its activity or business to a
particular place;
(b) The Company is not a party to and is not liable under:
(i) an agreement, arrangement or obligation by which the
Company is a member of a joint venture, consortium,
partnership or association (other than a bona fide
trade association); or
(ii) a distributorship, agency, marketing, licensing or
management agreement or arrangement.
9.5 CONTRACTS WITH CONNECTED PERSONS
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) to which the Company is or was a party and in which
the Vendors, a director or former director of any member of the Company
or any of the Vendors' Related Persons or a person connected with any
of them is or was interested in any way. The Company does not owe any
obligation or sum to nor does it and neither will it
43
immediately after Completion have any contractual or other arrangements
of any sort with the Vendors or any of their Related Persons.
9.6 CONDITIONS AND WARRANTIES IN RESPECT OF GOODS OR SERVICES
Except for a condition or warranty implied by law or contained in its
standard terms of business or otherwise given in the usual course of
trading, the Company has not given a condition or warranty, or made a
representation, in respect of goods or services supplied or agreed to
be supplied by it, or accepted an obligation that could give rise to a
liability after the goods or services have been supplied by it.
10. INFORMATION TECHNOLOGY AND DATA PROTECTION
10.1 The Business Data comprises all electronically-stored information
required by the Company to carry on its business as currently carried
on relating to the Product Licences, Product Licence Dossiers, Third
Party Product Licences and Trademarks.
10.2 COPYRIGHT
None of the Business Data has been copied wholly or substantially from
any material in which the Company does not own copyright.
10.3 LITIGATION IN RESPECT OF SOFTWARE
The Company is validly licensed to use the software required to comply
with the obligations of Xx. Xxxxxxx at clause 5.2 used in its business
and no action will be necessary to enable it to continue to use such
software to the same extent and in the same manner as they have been
used prior to the date hereof.
10.4 DATA PROTECTION ACT 1984
The Company complies in full with, and has in place all necessary
registrations and procedures under, the Data Protection Act 1984 or
equivalent applicable legislation in any other country.
10.5 DATA PROTECTION ACT 1998
The Company has put all necessary procedures in place in order to
comply with the Data Protection Act 1998 in particular it has assessed
all new data processing that was not underway immediately before 24
October 1998; has identified all manual records which will be caught by
the Data Protection Xxx 0000; has set up procedures to obtain all
necessary consents and to ensure compliance with the fair processing
code; and has assessed the impact of the seventh data protection
principle in particular in relation to all processing contracts with
third parties and the impact of the eighth data protection principle
(prohibition on transfers outside the European Economic Area).
44
10.6 DISCLOSURE OF DATA PROTECTION PROCEDURES
Xx Xxxxxxx has disclosed details of all steps taken by the Company to
assess and introduce procedures to ensure compliance with the Data
Protection Xxx 0000.
11. LIABILITIES
11.1 BANK ACCOUNTS
A statement being in the agreed terms of all the bank accounts of the
Company (the "BANK ACCOUNTS") and of the credit or debit balances on
such accounts as at a date not more than one day before the date of
this agreement [is attached to the Disclosure Letter]. The Company does
not have any other bank or deposit accounts (whether in credit or
overdrawn) not included in such statement. Since such statement there
have been no payments into or out of any such accounts.
11.2 BANK RECONCILIATION STATEMENT SINCE ACCOUNTS DATE
A statement being in the agreed terms showing all payments into and out
of the Bank Accounts since the Accounts Date [is attached to the
Disclosure Letter] (the "BANK RECONCILIATION STATEMENT"). All debts
received from debtors of the Company since the Accounts Date and all
payments made to creditors of the Company since the Accounts Date are
reflected in the Bank Reconciliation Statement.
11.3 GUARANTEES AND INDEMNITIES
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.
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 other than a Company.
11.4 GRANTS
The Company is not liable to repay an investment or other grant or
subsidy made to it by any person (including the Department of Trade and
Industry or its predecessor). No matter (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.
45
12. PERMITS
12.1 COMPLIANCE WITH PERMITS
The Company has obtained and complied with the terms and conditions of
each Permit (full and accurate details of which are contained in the
Disclosure Letter).
12.2 STATUS OF PERMITS
There are no pending or so far as Xx. Xxxxxxx is aware threatened
proceedings which might in any way affect the Permits and Xx. Xxxxxxx
is not aware of any other reason why any of them should be suspended,
threatened or revoked or be invalid.
13. INSOLVENCY
13.1 WINDING UP
No order has been made, petition presented or resolution passed for the
winding up or for the appointment of a provisional liquidator to the
Company.
13.2 ADMINISTRATION
No administration order has been made and no petition for an
administration order has been presented in respect of the Company.
13.3 RECEIVERSHIP
No receiver, receiver and manager or administrative receiver has been
appointed of the whole or part of the Company's business or assets.
13.4 COMPROMISES WITH CREDITORS
(a) No voluntary arrangement under section 1 of the Insolvency Xxx
0000 has been proposed or approved in respect of the Company.
(b) No compromise or arrangement under section 425 of the
Companies Xxx 0000 has been proposed, agreed to or sanctioned
in respect of the Company.
(c) Neither the Company nor Clarendon has entered into any
compromise or arrangement with any of their respective
creditors or any class of their respective creditors
generally.
13.5 INSOLVENCY
Neither the Company nor Clarendon are unable to pay their respective
debts within the meaning of section 123 of the Insolvency Xxx 0000 (but
for this purpose ignoring the reference to "if it is proved to the
satisfaction of the court that" in section 123(1)(e) and 123(2)).
46
13.6 PAYMENT OF DEBTS
The Company has not stopped paying its debts as they fall due.
13.7 DISTRESS ETC.
No distress, execution or other process has been levied on an asset of
the Company or the Vendors.
13.8 UNSATISFIED JUDGMENTS
There is no unsatisfied judgment or court order outstanding against the
Company, or the Vendors.
13.9 STRIKING OUT
No action is being taken by the Registrar of Companies to strike the
Company off the register under section 652 of the Companies Xxx 0000.
13.10 BANKRUPTCY
None of the Vendors has been made bankrupt nor has a petition been
presented to make any the Vendors bankrupt.
14. LITIGATION AND COMPLIANCE WITH LAW
14.1 LITIGATION
(a) Neither the Company nor a person for whose acts or defaults
the Company may be vicariously liable is involved, or has
during the three years ending on the date of this agreement
been involved, in a civil, criminal, arbitration,
administrative or other proceeding in any jurisdiction. So far
as Xx. Xxxxxxx is aware no civil, criminal, arbitration,
administrative or other proceeding in any jurisdiction is
pending or threatened by or against the Company or a person
for whose acts or defaults the Company may be vicariously
liable.
(b) So far as Xx. Xxxxxxx is aware, no matter exists 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.
(c) 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.
47
14.2 COMPLIANCE WITH LAW
The Company has conducted its business and dealt with its assets in all
material respects in accordance with all applicable legal and
administrative requirements (including applicable competition laws) in
any jurisdiction.
14.3 INVESTIGATIONS
The Company is not and has not been subject to any investigation,
enquiry or disciplinary proceeding (whether judicial, quasi-judicial or
otherwise) in any jurisdiction and none is pending or threatened, and
neither has it received any request for information from, any court or
governmental authority (including any national competition authority
and the Commission of the European Communities and the EFTA
Surveillance Authority) under any anti-trust or similar legislation in
any jurisdiction. So far as the Vendors are aware no matter exists
which might give rise to such an investigation, enquiry, proceeding or
request for information.
14.4 UNLAWFUL PAYMENTS
Neither the Company nor a person for whose acts or defaults the Company
may be vicariously liable 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;
or
(c) directly or indirectly made an unlawful contribution to a
political activity.
All references to the Company in this paragraph 14 should be deemed to
include the Company's officers and agents and employees.
15. 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
in it and the Company is not liable to pay to any of its directors,
employees, agents and advisers any sum whatsoever in connection with
the sale of the Shares.
16. PROPERTIES
16.1 ALL PROPERTY
The Company has not owned, used or occupied any freehold or leasehold
land other than pursuant to the Property Leases.
48
16.2 NO OTHER LIABILITIES
The Company has no actual or contingent obligations or liabilities (in
any capacity including as principal contracting party or guarantor) in
relation to any lease, licence or other interest in, or agreement
relating to, land.
17. PENSIONS
17.1 PENSION ARRANGEMENTS DISCLOSED
The Company is under no obligation or commitment, nor is it party to
any custom nor practice, to pay, provide or contribute towards any
"relevant benefits" within the meaning of section 612 of the TA
(ignoring the exception therein) or sickness or disability benefits to
or in respect of any person and save in respect of the schemes set out
in the disclosure letter (the "DISCLOSED SCHEMES") has not at any time
participated in or contributed towards any scheme or arrangement which
has as its purpose or one of its purposes the provision of any such
benefits (other than schemes which have been fully wound up).
17.2 EX-GRATIA PENSIONS ETC.
The Company has not made or proposed, and will not before Completion
make or propose, any voluntary or ex gratia payments to any person in
respect of any relevant benefit (as defined in paragraph 17.1 of this
schedule).
17.3 UNDERTAKINGS AND ASSURANCES
No undertaking or assurance (whether legally binding or not) has been
given by the Company to any person as to the continuance, introduction,
increase or improvement of any such benefit or scheme or arrangement as
is referred to in paragraph 18.1 of this schedule (including, for the
avoidance of doubt, the Disclosed Schemes).
17.4 PAYMENT OF CONTRIBUTIONS
All contributions and premiums which are payable under the Disclosed
Schemes and all contributions due from members of the Disclosed Schemes
have been duly made and the Company has fulfilled all its obligations
under the Disclosed Schemes and it has no outstanding or future
liabilities in relation to the Disclosed Schemes.
17.5 EXEMPT APPROVAL
All the Disclosed Schemes are exempt approved schemes and have been
with effect from their dates of commencement within the meaning of
section 592(1) of the TA and there is no reason why such approval might
be withdrawn or cease to apply.
49
17.6 LEGAL COMPLIANCE
The Disclosed Schemes have at all times been administered in accordance
with the trusts powers and provisions of their governing documentation
and have been administered in accordance with and comply with all
applicable legislation and the general requirements of trust law. In
particular, the substitution of a member of the Vendors' Group as
principal employer of the Xxxxxxxxxxx Xxxxxx Limited Retirement and
Death Benefit Scheme was permitted by the deed and rules governing it.
17.7 NO CLAIMS OR LITIGATION
No claim has been made or threatened against the trustees or
administrator of any Disclosed Scheme or any company participating
therein against any person whom the Company is or may be liable to
indemnify or compensate (including any complaint to the Pensions
Ombudsman) in respect of any act event, omission or other matter
arising out of or in connection with at Disclosed Scheme (other than
routine claims for benefits) and so far as Xx. Xxxxxxx is aware there
are no circumstances which may give rise to any such claim. The Company
has not given any indemnity to any person in connection with any
Disclosed Scheme.
17.8 WINDING UP OF EVENTS
No event has occurred (nor will Completion be such an event) which
would or could result in or entitle any person or body of persons
(without the consent of the Company) to wind up, terminate or close any
of the Disclosed Schemes in whole or in part, or which is a "relevant
insolvency event" in relation to any of the Disclosed Schemes for the
purposes of section 144 of the Xxxxxxx Xxxxxxx Xxx 0000 or section 75
of the Pensions Xxx 0000.
17.9 PAYMENTS TO COMPANIES
No payment has been made from any of the Disclosed Schemes to the
Company.
17.10 CONTRIBUTION TO PERSONAL PENSIONS
The Company has no contractual liability to make any contributions to
any personal pension scheme or any retirement annuity contract of any
person.
17.11 MONEY PURCHASE BENEFITS ONLY
In addition to lump sum death in service benefits the Disclosed Schemes
provide only money purchase benefits (as defined in section 181 of the
Pension Schemes Act 1993) and no promise or assurance (oral or written)
has been given to any beneficiary that his or her benefice under these
schemes (other than lump sum death in service benefits) will be
calculated be reference to any person's remuneration or equate
(approximately or exactly) to any particular amount.
50
18. EMPLOYEES
18.1 EMPLOYEES
The Company does not have any employees other than the Retained
Employees.
18.2 NO CONSULTANTS
Save for Excluded Contracts the Company does not have an agreement with
any consultant nor is it liable to pay any sum to any consultant.
19. PRODUCT LICENCES
19.1 Full and accurate details of all Product Licences, Third Party Product
Licences and Product Licence Dossiers which are required for or relate
to the operation of the business of the Company as currently conducted
are set out in schedule 8.
19.2 Xx. Xxxxxxx is not aware of any fact or matter which would or may
create a breach of any of the Product Licences or the Third Party
Product Licences.
19.3 No person is or has claimed to be entitled to any option or right to
acquire any of the Product Licences and the Company is not under any
obligation (whether actual or contingent) to sell, charge or otherwise
dispose of any Product Licences to any person.
20. ENVIRONMENTAL
20.1 ENVIRONMENTAL
There are no events, states of affairs, conditions, circumstances,
practices, incidents, actions or omissions (including without
limitation the generation, use, treatment, storage, transport, deposit,
disposal, discharge, spillage, escape or management of Hazardous
Substance by the Company or any other person) which have occurred or
are occurring or have been or are in existence at, in, from or under
the properties to which the Property Leases relate which may give rise
to liability under Environmental Laws (if enforced).
21. TAXATION
INFORMATION AND RETURNS
21.1 RETURNS
The Company has made all returns and supplied all information and given
all notices to the Inland Revenue or other Taxation Authority as
reasonably requested or required by law within any requisite period and
all such returns and information and notices are correct and accurate
in all respects and are not the subject of any dispute and there are no
facts or circumstances likely to give rise to or be the subject of any
such dispute.
51
21.2 DISCLOSURES
All statements and disclosures made to any Taxation Authority in
connection with any provision of the Taxation Statutes whatsoever were
when made and remain complete and accurate in all material respects.
21.3 CLEARANCES
No action has been taken by the Company in respect of which any consent
or clearance from the Inland Revenue or other Taxation Authority was
required except in circumstances where such consent or clearance was
validly obtained and where any conditions attaching thereto were met
and will, immediately following Completion, continue to be met.
21.4 TAX DEED
No event has occurred which would or might give rise to a claim under
the Tax Deed upon or after the execution thereof.
PROVISION FOR AND PAYMENT OF TAX
21.5 GENERAL
The Accounts make full provision or reserve in respect of any period
ended on or before the Accounts Date for all Tax assessed or liable to
be assessed on the Company or for which it is accountable at the
Accounts Date whether or not the Company has or may have any right of
reimbursement against any other person including Tax in respect of
property (of whatever nature) income, profits or gains held, earned,
accrued or received by or to any person on or before the Accounts Date
or by reference to any event occurring, act done or circumstances
existing on or before that date including distributions made down to
such date or provided for in the Accounts and proper provision has been
made and shown in the Accounts for deferred Tax in accordance with
generally accepted accounting principles.
21.6 PAYMENT OF TAX
The Company has duly and punctually paid all Tax to the extent that the
same ought to have been paid and is not liable nor has it within three
years prior to the date hereof been liable to pay any penalty or
interest in connection therewith.
The Company has duly deducted Tax from all payments made where required
by applicable legislation and accounted to the relevant Tax Authority
for tax so deducted.
21.7 PAY AS YOU EARN
The Company has properly operated the PAYE system deducting Tax as
required by law from all payments to or treated as made to or benefits
provided for officers, employees, ex-employees
52
or independent contractors of the Company (including any such payments
within section 134 of the TA) and duly accounted to the Inland Revenue
for Tax so deducted and has complied with all its reporting obligations
to the Inland Revenue in connection with any such payments made or
benefits provided, and no PAYE audit or DSS visit in respect of the
Company has been made by the Inland Revenue nor has the Company been
notified that any such audit will be made.
21.8 SECONDARY LIABILITY
No transaction or event has occurred in consequence of which the
Company is or may be held liable for any Tax or deprived of relief or
allowances otherwise available to it in consequence of any Tax or may
otherwise be held liable for or to indemnify any person in respect of
any Tax, where some other company or person is or may become primarily
liable for the Tax in question (whether by reason of any such other
company being or having been a member of the same group of companies or
otherwise).
CORPORATION TAX
21.9 SALES AT UNDERVALUE/OVERVALUE
All transactions entered into by the Company have been entered into on
an arm's length basis and the consideration (if any) charged or
received or paid by the Company on all transactions entered into by it
has been equal to the consideration which might have been expected to
be charged received or paid (as appropriate) between independent
persons dealing at arm's length and no notice or enquiry pursuant to
section 770 of the TA has been made in connection with any of such
transactions.
21.10 DEDUCTIONS
The Company has not made any payment or incurred any liability to make
any payment which could be disallowed as a deduction in computing the
taxable profits of the Company or as a charge on the Company's income
including (but without prejudice to the generality of the foregoing)
any payment which could be disallowed under sections 74 (general rules
as to deductions not allowable), 338-340 (allowance of charges on
income), 779-789 (leased assets), section 787 (restriction of relief
for payments of interest) or section 125 (annual payments for
non-taxable consideration) of the TA.
21.11 EXCHANGE GAINS AND LOSSES
The Company is not and has not since the Accounts Date been:
(a) the holder of a qualifying asset;
(b) subject to a qualifying liability; or
(c) party to a currency contract
53
for the purposes of Chapter II of the FA 1993.
21.12 LOAN RELATIONSHIPS
(a) The Company is not party to any loan relationship as defined
in Chapter II of the Finance Act, 1996 which may give rise to
any debits or credits (other than in relation to interest on
an accruals basis). The Company is and has since the Accounts
Date been taxed on an authorised accruals basis of accounting
in relation to all loan relationships which are creditor
relationships as defined in section 103 of the FA 1996 and in
relation thereto:
(i) the accruals on which the Company is taxable are
computed only by reference to interest;
(ii) if any such debt were to be repaid at its face value
the Company would not suffer any charge to Tax in
excess of Tax on interest accrued; and
(iii) there is no connection between the Company and the
debtor as mentioned in section 87 of the FA 1996.
(b) The Company obtains and has since the Accounts Date obtained
tax relief on an authorised accruals basis of accounting in
relation to all loan relationships which are debtor
relationships as mentioned in section 103 of the FA 1996 and
in relation to each such relationship:
(i) the deduction given in computing the taxable profits
of the Company in consequence of that relationship is
not less than the interest accruing for the period
concerned;
(ii) the Company would suffer no adverse tax consequences
were such debts to be repaid at face value except
that the tax deduction for interest accrued would
cease.
CAPITAL ASSETS
21.13 CAPITAL ALLOWANCES
No balancing charge in respect of any capital allowances claimed or
given would arise if all the assets of the Company were to be realised
for a consideration equal to the amount of the book value thereof as
shown or included in the Accounts.
All necessary conditions for all capital allowances (as defined in
section 832(1) of the TA) claimed by the Company were at all material
times satisfied and remain satisfied and the Company has not since the
Accounts Date become liable for any balancing charge.
The capital allowances computations for the period ending on the
Accounts Date are complete, correct and annexed to the Disclosure
Letter.
54
21.14 FINANCE LEASES
The Company is not and has not been the lessee under any leases of
plant or machinery except for the Leases.
DISTRIBUTIONS
21.15 REPAYMENTS OF SHARE CAPITAL
The Company has not at any time after 6 April 1965 repaid or agreed to
repay or redeemed or agreed to redeem or purchased or agreed to
purchase (or made any contingent purchase contract within the meaning
of section 165 of the Companies Act 1985) in respect of any of its
issued share capital or any class thereof. Further the Company has not
after 6 April 1965 capitalised or agreed to capitalise in the form of
shares, debentures or other securities or in paying up amounts unpaid
on any shares, debentures or other securities any profits or reserves
of any class or description or passed or agreed to be passed any
resolution to do so.
The Company has not made (and will not be deemed to have made) any
distribution within the meaning of sections 209 and 210 (bonus issue
following repayment of capital) of the TA since 5 April 1965 except
dividends properly authorised and shown in its Accounts nor is the
Company bound to make any such distribution.
The Company has not been party to any transaction involving an exempt
distribution within section 213 of the TA within the period commencing
five years prior to the Accounts Date.
21.16 PAYMENTS TO BE TREATED AS DISTRIBUTIONS
The Company has not since the Accounts Date been subject to any debt or
security where the interest payable thereon fell or falls or could on
its assignment fall to be treated as a distribution for tax purposes.
CHARGEABLE GAINS
21.17 SALES AT BOOK VALUE
No chargeable gain or profit (disregarding the effects of any
indexation relief available) would arise if any asset of the Company
(other than trading stock) were to be realised for a consideration
equal to the amount of the book value thereof as shown or included in
the accounts.
FOREIGN ELEMENT
The Company is not liable to Tax in any jurisdiction other than the
United Kingdom and the Company does not have and has never had a
permanent establishment in a country other than the United Kingdom.
55
ANTI-AVOIDANCE PROVISIONS
21.18 TAX SCHEMES
The Company has not entered into nor been a party to nor otherwise
involved in any scheme or arrangement designed wholly or partly for the
purpose of avoiding, reducing or deferring Tax.
21.19 CLOSE COMPANIES - TRANSFERS OF VALUE
The Company has made no transfer of value such as is specified in
section 94(1) (or section 99(2)) of the ITA.
21.20 CLOSE COMPANIES - LOANS TO PARTICIPATORS
The Company has not made any loan advance or payment or given any
consideration falling within sections 419-420 or 422 of the TA.
21.21 CLOSE COMPANIES - DISTRIBUTIONS
The Company has made no payments and conferred no benefits falling to
be treated as distributions under section 418 of the TA.
21.22 CLOSE COMPANIES - SHORTFALL ETC.
The Company is not and never has been a close investment-holding
company as defined at section 13A of the TA.
21.23 CLOSE COMPANIES - TRANSFERS AT UNDERVALUE
The Company has not made a transfer at an undervalue so that section
125 of the TCGA could apply.
GROUPS OF COMPANIES
The Company is not, nor has it ever been, a member of a group of
companies as defined by section 170 of the TCGA.
INHERITANCE TAX
21.24 INHERITANCE TAX
The Company is not, and will not become, liable to be assessed to
inheritance tax as donor or donee of any gift or 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.
56
There is no unsatisfied liability to inheritance tax attached or
attributable to the Shares or any asset of the Company and in
consequence no person has the power to raise the amount of such tax by
sale or mortgage of or by a terminable charge on any of the Shares or
assets of the Company as mentioned in section 212 of the ITA and none
of the Shares or assets of the Company are subject to an Inland Revenue
charge within section 237 of the ITA.
VALUE ADDED TAX
21.25 VALUE ADDED TAX
The Company is a registered taxable person for the purpose of the VAT
legislation and has not at any time been treated as a member of a group
of companies for such purpose and has not made any application to be so
treated and no circumstances exist whereby the Company would or might
become liable for value added tax as an agent or otherwise by virtue of
section 47 of the VATA.
The Company has complied in all respects with the requirements and
provisions of the VAT legislation and has made and maintained and will
pending Completion make and maintain accurate and up to date records
invoices accounts and other documents required by or necessary for the
purposes of the VAT legislation and the Company has at all times
punctually paid and made all payments and returns required thereunder.
The Company has not made any exempt supplies in consequence of which it
is or will be unable to obtain credit for all input tax paid by it
during any VAT quarter ending after the Accounts Date.
21.26 STAMP DUTY
All documents in the enforcement of which the Company is or may be
interested and which are in the Company's possession or under its
control have been duly stamped and since the Accounts Date and Company
has not been a party to any transaction whereby the Company is or
become liable to stamp duty reserve tax.
57
SCHEDULE 4
LIMITATIONS ON LIABILITY
1. TIME LIMIT FOR CLAIMS
1.1 Save in the case of any liability based upon fraud and including
without limitation fraudulent concealment by Xx. Xxxxxxx, Xx. Xxxxxxx
shall not be liable in respect of a claim under the Warranties unless
written notice of such claim setting out reasonable details of the
relevant claim is served upon the Vendors' Representative:
(a) in the case of a claim under the Warranties other than the
Warranties relating to Tax (the "GENERAL WARRANTIES"), by not
later than 5.00 p.m. on 31 May 2001; and
(b) in the case of a claim under the Warranties relating to Tax
(the "TAX WARRANTIES") by not later than 5.00 p.m. on the day
one month after the seventh anniversary of Completion
and the liability of Xx. Xxxxxxx shall further determine (if such claim
has not previously been satisfied, settled or withdrawn) if legal
proceedings in respect of such a claim have not been commenced within
12 months of the service of such notice against Xx. Xxxxxxx.
2. MONETARY LIMIT ON CLAIMS
2.1 Save in the case of any liability based upon fraud and including
without limitation fraudulent concealment by Xx. Xxxxxxx, Xx. Xxxxxxx
shall not be liable in respect of a claim under the Warranties:
(a) unless and until the aggregate amount of all such
substantiated claims against Xx. Xxxxxxx exceeds L100,000 in
which event Dr. Burstons's liability shall be for the total
amount of such substantiated claims and shall not be limited
to the excess provided that (save in the case of fraud or
fraudulent concealment by Xx. Xxxxxxx) the aggregate liability
of Xx. Xxxxxxx in respect of all claims under the Warranties
and under the Tax Deed shall not in any circumstances exceed
the Consideration;
(b) where the amount of such claim does not exceed L10,000
provided that claims arising out of the same subject matter
shall be aggregated for those purposes.
2.2 In this paragraph 2 "SUBSTANTIATED" means a claim for which Xx.
Xxxxxxx is liable (whether individually, as a contributory or
otherwise), and which is admitted, settled without admission of
liability, or proved or determined in a court of competent
jurisdiction.
2.3 If in respect of any claim under the General Warranties the liability
of Xx. Xxxxxxx is contingent only, then Xx. Xxxxxxx shall not be under
any obligation to make any payment to the Purchaser until such time as
the contingent liability ceases to be contingent and becomes actual
provided
58
that the provisions of paragraph 1 (as to determination of liability
if legal proceedings have not been commenced within 12 months of
service of notice) shall not apply to such claim whilst such liability
remains contingent nor shall the provisions of paragraph 1.1(a) apply
to prevent a claim if notice of the contingent claim has been given to
Xx. Xxxxxxx within the required period stipulated by paragraph 1a.
2.4 The Purchaser shall not be entitled to recover damages in respect of
any claim under the Warranties and/or of the Tax Deed and/or the
indemnities at Schedule 6 or receive payment pursuant to clause 22, to
the extent and only to the extent that Xx. Xxxxxxx has previously
satisfied a claim under the Warranties and/or Tax Deed and/or the
indemnities and/or made payment pursuant to clause 22 where to do so
would involve recovery or receipt more than once in respect of matters
arising from the same facts or circumstances.
2.5 Any amount payable by Xx. Xxxxxxx to the Purchaser in satisfaction of
any claim made under the Warranties or the Tax Deed or the indemnities
at Schedule 6 or pursuant to clause 22 shall to the extent that it is
able, be treated as a reduction by that amount of the Consideration.
3. DISCLOSURE
Xx. Xxxxxxx shall not be liable in respect of a claim under the
Warranties to the extent that the same or circumstances giving rise
thereto are fairly disclosed in the Disclosure Letter or are expressly
provided for or noted in the Accounts. No letter, document or other
communication shall be deemed to be disclosed except and to the extent
that the same is listed in an index to and a copy attached to, the
Disclosure Letter.
4. NO LIABILITY FOR CERTAIN EVENTS
4.1 Xx. Xxxxxxx shall not be liable in respect of a claim under the
Warranties to the extent that:
(a) the claim or the events giving rise to the claim would not
have arisen but for an act or transaction carried out by
reason of the pre-completion asset disposals from BRL, APHL
and DBHL to the Vendors' Group, invoices in respect of which
are contained in section 13 of the Disclosure Bundle (as
defined in the Disclosure Letter); or
(b) the loss or damage giving rise to the claim is recovered by
the Purchaser's Group under any policy of insurance;
(c) such claim occurs or is increased as a result of any change
in legislation after the date of this agreement (or any
legislation not in force at the date of this agreement)
which takes effect retrospectively or the withdrawal after
the date of this agreement of any published concession or
published general practice previously made by the Inland
Revenue or other taxing authority;
(d) such claim occurs or is increased as a result of any
increase in the rate of Taxation in force at the date of
this agreement;
59
(e) any breach of the Warranties occurs as a result of or is
otherwise attributable to the Purchaser's Group disclaiming
any part of the benefit of capital or other allowances
against Taxation claimed or proposed and in either case,
which was contemplated for the purposes of the Accounts on
or before the date of this agreement;
(f) such claim is attributable to any voluntary act or omission
of or transaction or arrangement carried out by the
Purchaser's Group after the date of this agreement otherwise
than in the ordinary course of business and which the
Purchaser should reasonably have known would have given rise
to such a claim;
(g) such a claim would not have arisen or would have been
reduced or eliminated but for the failure or omission on the
part of the Purchaser's Group to make any claim, election,
surrender or disclaimer or give notice or consent or do any
other thing under the provisions of any enactment or
regulation relating to Taxation after the date of this
agreement the making giving or doing of which was taken into
account in computing the provision for Taxation in the
Accounts and was notified to the Purchaser a reasonable time
before the expiry of any applicable time limit;
(h) such claim relates to a liability for Taxation which would
not have arisen but for any winding up or cessation after
the date of this agreement of any trade or business carried
on by any Company;
(i) if and to the extent that such claim would not have arisen
but for a change of accounting policy or practice of any
Company after the date of this agreement other than a change
to comply with generally accepted accounting principles or
any legal requirements;
(j) that such claim arises solely because of the disallowance of
the carry back of losses of L1,176,155 of BRL in the
accounting period ended on the Accounts Date against the
profits of BRL in the accounting period ended on 31 March
1998.
5. THIRD PARTIES
5.1 This paragraph 5 shall apply in circumstances where:
(a) any claim is made against the Purchaser's Group which should
reasonably be expected to give rise to a claim by the
Purchaser against Xx. Xxxxxxx under the General Warranties;
or
(b) the Purchaser's Group should reasonably be expected to be
able to make recovery from some other person any sum in
respect of any facts or circumstances by reference to which
the Purchaser has or should be reasonably expected to have a
claim against Xx. Xxxxxxx under the General Warranties; or
(c) Xx. Xxxxxxx has paid to the Purchaser an amount in respect
of a claim under the General Warranties and subsequent to
the making of such payment the Purchaser recovers from some
other person a sum which is referable to that payment.
60
5.2 The Purchaser shall:
(a) in the case of paragraph 5.1(a) and 5.1(b) prior to taking
any action (other than the giving of notice pursuant to
paragraph 1 of this schedule) against Xx. Xxxxxxx under the
General Warranties and subject to the Purchaser being
indemnified and secured to its reasonable satisfaction
against all costs and expenses which may be incurred by
reason of such action) take all such action Xx. Xxxxxxx may
reasonably request in writing including the institution of
proceedings and the instruction of professional advisers
approved in writing by the Vendors' Representative to act on
behalf of the Purchaser to avoid, dispute, resist,
compromise, defend or appeal against any such claim against
the Purchaser as is referred to in paragraph 5.1(a) or to
make such recovery by the Purchaser as is referred to in
paragraph 5.1(b), as the case may be; and
(b) subject to the Purchaser being indemnified and secured to
its reasonable satisfaction against all costs and expenses
which may be incurred by reason of such action, not settle
or compromise any liability or claim to which such action is
referable without the prior written consent of the Vendors'
Representative which consent shall not be unreasonably
withheld or delayed;
(c) in the case of paragraph 5.1(c) only, repay to Xx. Xxxxxxx
an amount equal to the amount recovered upon receipt or, if
lower, the amount paid by Xx. Xxxxxxx to the Purchaser less,
in either case, any amount payable by the Purchaser in
respect of Taxation on the amount recovered; and
(d) for the avoidance of doubt clause 4 of the Tax Deed shall
apply with necessary changes in respect of claims under the
Tax Warranties.
6. MITIGATION
The Purchaser will take or procure the taking of all such reasonable
steps as are required by law in order to mitigate any claim under the
Warranties, subject to the Purchaser being indemnified and secured to
its reasonable satisfaction against all reasonable costs and expenses
incurred in connection therewith.
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SCHEDULE 5
PROPERTY LEASES
-------------------------------------------- ------------------------------------------- -------------------------
PARTIES PROPERTY DATE
-------------------------------------------- ------------------------------------------- -------------------------
Dallas Xxxx Xxxxxxx t/a Stoneythorpe Home Farm, 30.09.1998
Xxxxxx Xxxxxxx Investment Southarn, Stratford-upon-Avon
Properties (1) BRL (2)
-------------------------------------------- ------------------------------------------- -------------------------
Dallas Xxxx Xxxxxxx (1) BRL (2) The Tin Barn (Unit D) Pitsford Hill, 30.09.1998
Brixworth, Northants
-------------------------------------------- ------------------------------------------- -------------------------
Dallas Xxxx Xxxxxxx (1) BRL (2) The Manor House, Pitsford Hill, 30.09.1998
Brixworth, Northants
-------------------------------------------- ------------------------------------------- -------------------------
Xxxxxx Xxxxxxx Ashbourne Xxxx 00 Xxxxx Xxxxxx, Xxxxxxxxx Xxxx 30.09.1998
Limited (1) BRL (2) Industrial Estate, Brixworth, Northants
-------------------------------------------- ------------------------------------------- -------------------------
62
SCHEDULE 6
INDEMNITIES
1. For the purpose of this schedule "COMPANY" means APHL, BRL, Chargelink
and DBHL all of them and each of them as the context admits.
2. Xx. Xxxxxxx undertakes to the Purchaser that he shall indemnify and
keep indemnified the Purchaser and/or the relevant Company from and
against:
(a) all or any claims (whether or not successful, compromised or
settled), actions, liabilities, demands, proceedings brought
or established against the Purchaser and/or any Company in
any jurisdiction;
(b) all reasonable losses, costs, payments, deficiencies,
charges and expenses (including legal fees on an indemnity
basis) which the Purchaser and/or any Company may suffer or
properly incur (including, but not limited to, all such
reasonable losses, costs, payments, deficiencies, charges
and expenses suffered or properly incurred in disputing any
claim, action, liability, demand or proceeding and/or
establishing its right to be indemnified pursuant to this
indemnity and/or seeking advice on any claim, action,
liability, demand or proceedings in any way related to or in
connection with this indemnity) provided that in the event
that any claim under these indemnities is successfully
defended or is withdrawn, the Purchaser shall forthwith
refund any payments made by the Vendor to the Purchaser in
respect of such claim; and
(c) any liability to Taxation for which the Purchaser and/or any
Company may become liable
in each case in relation to or arising from or as a
consequence of the matters set out below:
(d) Any claim brought by or in respect of any of the Retained
Employees or further employee of the Company prior to the
date of this agreement, whether for unpaid remuneration,
wrongful dismissal, unfair dismissal, redundancy, loss of
office, sex, disability or race discrimination or otherwise.
(e) The termination of any contract of employment or collective
agreement to which the Company is a party and which has not
been disclosed in writing to the Purchaser and any sum
payable to or on behalf of any such employee in respect of
his employment.
(f) The administration of and provision of benefits under any
occupational or personal pension scheme (including any
indemnities or guarantees given in relation thereto); any
claim brought by or on behalf of the Retained Employees or
the Vendors in respect of any liability, amount owing or
contribution due under any occupational or personal pension
scheme whatsoever; and the substitution of principal
employers under the Xxxxxxxxxxx Xxxxxx Limited Retirement
and Death Benefit Scheme.
63
For the avoidance of doubt references in this schedule 6 to
any pension scheme includes without limitation the
Xxxxxxxxxxx Xxxxxx Retirement and Death Benefit Scheme.
(g) Any claim or liability (whether actual or contingent) in
relation to past or future non-performance or non-observance
of the covenants of the Property Leases including, but not
limited to, environmental liabilities arising from the
Company's occupation of the properties under, and the
assignment of, the Property Leases.
64
SCHEDULE 7A
TRADE MARKS
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
Trademark Name Reg. No. Class Holder
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
AMINOTARD 2049671 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
AMNITARD 2049676 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
CALCETE 2016776 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
DI-NITROTARD 2049961 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
DICLOTARD 1582474 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
HALFPROPATARD 2063395 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
IBUTARD 1582478 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
INDOTARD 1582473 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
ISODUR 2019102 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
ISOTARD 2109735 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
KETOPROTARD 2049666 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
KETOTARD 1304356 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
MESALATARD 2002898 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
NIFEDOTARD 1582475 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
PROPATARD 2002214 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
SALBUTARD 2002219 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
TRAMATARD 2052550 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
VERAPATARD 1582479 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
ZEMTARD 2002211 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
BECLOAQUA 1581102 5 Xxxxxx Xxxxxxx Healthcare Ltd
---------------------------- ---------------- ----------- ------------------------------------- ----------- -------------
65
SCHEDULE 7B
TRADE XXXX APPLICATION
------------------------------- -------------------------------------- ------------------------------------------------
NAME APPLICATION NO. CLASS
------------------------------- -------------------------------------- ------------------------------------------------
PCG Pharma 2192182 5, 10
------------------------------- -------------------------------------- ------------------------------------------------
Mono-5-Isotard 5
------------------------------- -------------------------------------- ------------------------------------------------
Mono-5-Nitrotard
------------------------------- -------------------------------------- ------------------------------------------------
Mono-5-Sorbitard 5
------------------------------- -------------------------------------- ------------------------------------------------
66
SCHEDULE 8
PRODUCT LICENCES
PART 1 - MARKETED PRODUCTS
Products currently marketed in the UK, licences held within the Xxxxxx Xxxxxxx
Healthcare Group of companies.
------------------- ---------------- -------------------- -------------------------------------------- --------------------
PRODUCT LICENCE NUMBER TYPE/STRENGTH LICENCE HOLDER MANUFACTURER/
PACKER
------------------- ---------------- -------------------- -------------------------------------------- --------------------
Amoxicillin 6832/0117 Capsules 250 mg Ashbourne Pharmaceutical (Holdings) Ltd XXXXX
------------------- ---------------- -------------------- -------------------------------------------- --------------------
6832/0118 Capsules 500 mg Ashbourne Pharmaceutical (Holdings) Ltd XXXXX
------------------- ---------------- -------------------- -------------------------------------------- --------------------
6832/0119 Suspension Ashbourne Pharmaceutical (Holdings) Ltd XXXXX
125mg/5ml
------------------- ---------------- -------------------- -------------------------------------------- --------------------
6832/0120 Suspension Ashbourne Pharmaceutical (Holdings) Ltd XXXXX
250mg/5ml
------------------- ---------------- -------------------- -------------------------------------------- --------------------
Minocycline 6832/0121 Tablets 50mg Ashbourne Pharmaceutical (Holdings) Ltd XXXXX
------------------- ---------------- -------------------- -------------------------------------------- --------------------
6832/0122 Tablets 100mg Ashbourne Pharmaceutical (Holdings) Ltd XXXXX
------------------- ---------------- -------------------- -------------------------------------------- --------------------
Beclometasone 6832/0059 Nasal Spray/mcg pom Xxxxxx Xxxxxxx Healthcare Ltd Chiesi/Jensa
16900/0021
'P' Product
------------------- ---------------- -------------------- -------------------------------------------- --------------------
Isosorbide 6832/0110 Tablets 60mg Ashbourne Pharmaceutical (Holdings) Ltd Valpharma/Jensa
mononitrate
------------------- ---------------- -------------------- -------------------------------------------- --------------------
6832/0132 Tablets 25mg Ashbourne Pharmaceutical (Holdings) Ltd Valpharma/Jensa
------------------- ---------------- -------------------- -------------------------------------------- --------------------
6832/0135 Tablets 50mg Ashbourne Pharmaceutical (Holdings) Ltd Valpharma/Jensa
6832/0134 Tablets 40mg
------------------- ---------------- -------------------- -------------------------------------------- --------------------
16900/005 Capsules 25mg Xxxxxx Xxxxxxx Healthcare Ltd Pharmatec/Jensa
------------------- ---------------- -------------------- -------------------------------------------- --------------------
16900/004 Capsules 50mg Xxxxxx Xxxxxxx Healthcare Ltd Pharmatec/Jensa
------------------- ---------------- -------------------- -------------------------------------------- --------------------
Ketoprofen 6832/0131 200mg CR Ashbourne Pharmaceutical (Holdings) Ltd Valpharma/Jensa
------------------- ---------------- -------------------- -------------------------------------------- --------------------
Cimetidine 12248/0001 Tablest 200mg Xxxxxxxxxxx Xxxxxx Clonmel
------------------- ---------------- -------------------- -------------------------------------------- --------------------
12248/0002 Tablets 400mg Xxxxxxxxxxx Xxxxxx Clonmel
------------------- ---------------- -------------------- -------------------------------------------- --------------------
12248/0003 Tablets 800mg Xxxxxxxxxxx Xxxxxx Clonmel
------------------- ---------------- -------------------- -------------------------------------------- --------------------
Diltiazem 6832/0113 Capsules 120mg Ashbourne Pharmaceutical (Holdings) Ltd Valpharma/Jensa
------------------- ---------------- -------------------- -------------------------------------------- --------------------
6832/0114 Capsules 180mg Ashbourne Pharmaceutical (Holdings) Ltd Valpharma/Jensa
------------------- ---------------- -------------------- -------------------------------------------- --------------------
6832/0115 Capsules 240mg Ashbourne Pharmaceutical (Holdings) Ltd Valpharma/Jensa
------------------- ---------------- -------------------- -------------------------------------------- --------------------
6832/0116 Capsules 300mg Ashbourne Pharmaceutical (Holdings) Ltd Valpharma/Jensa
------------------- ---------------- -------------------- -------------------------------------------- --------------------
Aspirin 16900/0031 300mg EC 100 & 30's Xxxxxx Xxxxxxx Healthcare Ltd Custom/Unit 2
------------------- ---------------- -------------------- -------------------------------------------- --------------------
Ipratropium 16900/0041 Nebuliser 250mg/ml Xxxxxx Xxxxxxx Healthcare Ltd Holopack/Jensa
16900/0040 1 & 2ml
------------------- ---------------- -------------------- -------------------------------------------- --------------------
Salbutamol 16900/0006 Nebuliser 1mg/ml & Xxxxxx Xxxxxxx Healthcare Ltd Holopack/Jensa
16900/0007 2mg/ml
------------------- ---------------- -------------------- -------------------------------------------- --------------------
Saline 16900/0008 Diluent 2.5ml Xxxxxx Xxxxxxx Healthcare Ltd Holopack/Jensa
------------------- ---------------- -------------------- -------------------------------------------- --------------------
Medical Device Irrigation 20ml Xxxxxx Xxxxxxx Healthcare Ltd Holopack/Jensa
------------------- ---------------- -------------------- -------------------------------------------- --------------------
Terbutaline 14641/0005 Nebuliser 2.5mg/ml Chargelink Holopack/Jensa
------------------- ---------------- -------------------- -------------------------------------------- --------------------
67
PART 2 - DEVELOPMENTS PROJECTS
Projects which are currently being progressed from submission with the MCA to
approval or where dossiers are being compiled for approval. All are in the name
of Xxxxxx Xxxxxxx Healthcare.
--------------------------- ----------------------------------- ----------------------------- ----------------------
ID NUMBER PRODUCT MANUFACTURER/
PACKER
--------------------------- ----------------------------------- ----------------------------- ----------------------
2012 Calcium chews 500mg Dales/Unit 2
16900/0001
----------------------------------- ----------------------------- ----------------------
16900/0002 Calcium chews 1g Ditto
--------------------------- ----------------------------------- ----------------------------- ----------------------
2032 Paracetamol & codeine Wrafton/Jensa
16900/0003 capsules 500/30mg
--------------------------- ----------------------------------- ----------------------------- ----------------------
2043 Temazepam tablets 10 and 20mg Dales/Jensa
16900/0029
16900/0030
--------------------------- ----------------------------------- ----------------------------- ----------------------
2046 Tramadol capsules Wrafton/Jensa
16900/0010
--------------------------- ----------------------------------- ----------------------------- ----------------------
2034 Paracetamol & codeine Sipharm
effervescent tablets 500/30mg
--------------------------- ----------------------------------- ----------------------------- ----------------------
2033 Paracetamol & codeine tablets Dales/Jensa
500/30mg
--------------------------- ----------------------------------- ----------------------------- ----------------------
68
PART 3 - PRODUCTS MARKETED BY XXXXXXXXXXX XXXXXX WHERE THE LICENCE IS HELD BY A
THIRD PARTY
------------------------------------- ----------------------------------------- -----------------------------------
PRODUCT TYPE/STRENGTH LICENCE HOLDER
------------------------------------- ----------------------------------------- -----------------------------------
Aspirin Tablets 75mg XX Xxxxx
------------------------------------- ----------------------------------------- -----------------------------------
Indomethacin Capsules 75mg XX Xxxxxx Pharma
------------------------------------- ----------------------------------------- -----------------------------------
Diclofenac Tablets 75 and 100mg MR Valpharma
------------------------------------- ----------------------------------------- -----------------------------------
Naproxen Tablets 250 and 500mg EC Nycomed
------------------------------------- ----------------------------------------- -----------------------------------
69
SCHEDULE 9
EXCLUDED CONTRACTS
1. All mobile phones contracts entered into by any of the Companies.
2. (a) All and any agreements relating to the following non-marketed
products:
(i) Captopril Tablets 12.5, 25 and 50mg;
(ii) Folic Acid and Ferrous Gluconate Tablets 100mg
fe/0.4mg folic acid/30mg fe0.4mg folic acid;
(iii) Selegiline Tablets 5mg;
(iv) Diltiazem 120mg capsules (for PL 16900/00 18 only);
(v) Sulcralfate 1g tablets, 1g chewable tablets, mixture;
(vi) Tamoxifen 10, 20 and 40mg tablets.
(b) All and any agreements relating to the following product
developments:
(i) Budesonide CR Capsules;
(ii) Budesonide nebuliser suspension;
(iii) Budesonide aqueous nasal spray;
(iv) handheld nebuliser device;
(v) all HFA products including without limitation:
Salbutamol;
Budesonide;
Beclometasone;
Fluticasone;
(vi) Nifedipine 30 x 60mg XL tablets;
(vii) Salbutamol/Ipratropium nebuliser (for novel delivery
systems or for distribution of such products outside
the Territory);
(viii) wound dressings;
(ix) Enalapril melt tablets;
70
(x) Paracetamol/Tramadol capsules;
(xi) Melt formulations in general;
(xii) Calcium and Vitamin D3;
(xiii) Diclofenac MR tablets 75 and 100mg (subject to the
provisions of clause 5.3);
(xiv) Sodium cromoglycate nebuliser;
(xv) Nifedipine MR tablets 20mg;
(xvi) Bisoprolol 5 + 10mg tablets;
(xvii) Doxasosin 1, 2 + 4mg tablets;
(xviii) Nabumetone tablets;
(xix) Betahistine 8 + 16mg tablets;
(xx) Triamcinolone acetate aqueous nasal spray;
including for the avoidance of doubt the following Research and
Development Agreements:
- Agreement (oral budesonide) date 15 August 1998 made
between DBHL (1), Danbiosyst UK Limited (2) and BRL
(3);
- Agreement (nifedipine) undated made between DBHL (1),
Danbiosyst UK Limited (2) and BRL(3);
- Agreement (nebulisation) undated made between DBHL
(1), Danbiosyst UK Limited (2) and BRL (3);
- Agreement (nasal budesonide) undated made between
DBHL (1) West Pharmaceutical Services Drug Delivery
and Clinical Research Centre Limited (2) and BRL (3);
- Agreement (nasal beclomethasane) undated made between
DBHL (1) West Pharmaceutical Services Drug Delivery
and Clinical Research Centre Limited (2) and BRL (3);
- Agreement (nasal triamcinolone) undated made between
DBHL (1) West Pharmaceutical Services Drug Delivery
and Clinical Research Centre Limited (2) and BRL (3).
71
(c) All and any agreements relating to the following marketed
products:
(i) Medicinal bath oil: 250ml including any bio-medical services manufacturing
and packing agreement;
(ii) Buspirone hydrochloride including supply agreement made between Orion Corporation
tablets 5mg/10mg: and Ashbourne Pharmaceuticals Limited dated 27 September
1995.
(d) All and any agreements relating to the supply of active
materials for Budesonide, Nabumetone, Flutamide including the
Confidentiality and Supply Agreement made between DBHL and
Archimica Spa dated June 1997 the letter of Agreement from
Parexel to DBHL dated 12 September 1998, the Secrecy and
Confidentiality Agreement between DBHL and Chemi for the
supply of Nabumetone Powder dated 3 November 1998, the Supply
Agreement between APHL and Xxxxxx Pharmaceuticals Limited
(undated) and the Secrecy and Confidentiality Agreement
between DBHC and Sipharm Sisselnag AG dated 7 May 1998.
3. The obligation to supply Buspirone tablets 5mg and 10mg under the
Central Services Agency Regional Supplies Service in Northern Ireland
Tender T1964 dated 12 April 1999 for the period 1 May 1999 to 30 April
2001 and the obligation to supply Buspirone Hydrochloride Tablets 5mg
and 10mg under the North West (6NW) Tender 99G MOO dated 12 January
1999 for the period 1 March 1999 to 28 February 2001 or any
obligations to supply Buspirone tablets 5mg and 10mg.
4. Invoices for Product Development:
------------------------------------------------------------------------------------------------------------
Company Invoicing Party Amount Invoice No's
------------------------------------------------------------------------------------------------------------
Chargelink MCA L10,055.00 76458
------------------------------------------------------------------------------------------------------------
Various MCA L11,417.00 -
------------------------------------------------------------------------------------------------------------
BR Danbiosyst L9,133.17 94644
------------------------------------------------------------------------------------------------------------
BR Danbiosyst L277.35 94643
------------------------------------------------------------------------------------------------------------
BR Danbiosyst L5,875.00 94648
------------------------------------------------------------------------------------------------------------
BR Danbiosyst L2,192.81 94652
------------------------------------------------------------------------------------------------------------
BR Danbiosyst L2,968.64 94640
------------------------------------------------------------------------------------------------------------
BR Danbiosyst L877.57 94637
------------------------------------------------------------------------------------------------------------
BR Danbiosyst L10,694.33 94638
------------------------------------------------------------------------------------------------------------
BR Danbiosyst L12,639.04 94630
------------------------------------------------------------------------------------------------------------
BR Quintiles L43,170.68 809246
------------------------------------------------------------------------------------------------------------
BR Quintiles L56,803.03 808820
------------------------------------------------------------------------------------------------------------
BR Nilfisk L2,914.47 405031
------------------------------------------------------------------------------------------------------------
72
5. Any agreements or arrangements relating to the day to day operation of
facilities at Victors Barns, Brixworth, Northamptonshire including,
without limitation, agreements for cleaning, waste removal and
laboratory maintenance.
6. Any agreements with consultants including with Xxxxx Xxxxxxx, Xxxxx
Xxxxxx and Xxx Xxxxxxxx.
7. Invoice Number: 0102778 from Xxxxx Xxxxxxxx to BRL in the sum of
L8,600.00 plus VAT in the sum of L1,505.00.
8. BRL's Company Barclaycard.
73
SCHEDULE 10
RETAINED EMPLOYEES
-------------------------------------------------------------------------------
NAME
-------------------------------------------------------------------------------
Ash Kotecha
-------------------------------------------------------------------------------
Xxx Xxxxxxx
-------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx
-------------------------------------------------------------------------------
Xxxxx Xxxxxx
-------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx
-------------------------------------------------------------------------------
Xxxxx Xxxxx
-------------------------------------------------------------------------------
Xxxxx Xxxxx
-------------------------------------------------------------------------------
Xxxxxxx Xxxxxx
-------------------------------------------------------------------------------
Xxxxx Xxxxxxx
-------------------------------------------------------------------------------
Xxxxx Xxxxxx
-------------------------------------------------------------------------------
Xxxx Xxxxxx
-------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx
-------------------------------------------------------------------------------
Xxxx XxXxxxxxx
-------------------------------------------------------------------------------
Xxxxx Xxxxxx
-------------------------------------------------------------------------------
Xxxxx Xxxxxxxx
-------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx
-------------------------------------------------------------------------------
Xxxxxx Xxxx
-------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx
-------------------------------------------------------------------------------
Xxx S-Xxxxxx - Temp Employed until Sept 99
-------------------------------------------------------------------------------
Xxxxxxxx Xxxxx
-------------------------------------------------------------------------------
Xxxxxxx Xxxx
-------------------------------------------------------------------------------
Xxxxxx Xxxxx
-------------------------------------------------------------------------------
Vivien Sum
-------------------------------------------------------------------------------
74
Signed by XX. XXXXXX XXXXXXX )
in the presence of: ) Xx. Xxxxxx Xxxxxxx
) [signed]
XXXXXX XXXXXXX
XXXXXXX XXXXX, XXXXX 00 XXXXXX
XXXXXX XXXXXX
SOLICITOR
Signed by XXXXX XXXXXXX )
in the presence of: ) Xxx Xxxxxx
) [signed as attorney]
XXXXXX XXXXXXX (AS ABOVE)
Signed by XX. XXXXXX XXXXXXX and )
XXX XXXXXX as Trustees of ) Xx. Xxxxxx Xxxxxxx [signed]
THE XXXXXX XXXXXXX 1999 SETTLEMENT ) Xxx Xxxxxx [signed]
in the presence of: )
XXXXXX XXXXXXX (AS ABOVE)
Signed by )
for and on behalf of XXXXX HOLDINGS ) Xxxxxxxx Xxxxxx [signed]
PLC in the presence of: ) Xxxx Xxxxxxxxx [signed]
XXXXXXX XXXXXX
00 XXXXXXX XXXX
AUGHNACLOY
ACCOUNTANT
