Exhibit 10.1
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DATED
31 August, 1999
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XXXXXX XXXX AND OTHERS (1)
ICON PLC (2)
EASY ARCHES LIMITED AND
FURFIX PRODUCTS LIMITED (3)
and
XXXXXXX STRONG-TIE
INTERNATIONAL INC (4)
AGREEMENT
for the purchase of the
businesses and certain assets
of Easy Arches Limited and
Furfix Products Limited
CONTENTS
CLAUSE HEADING PAGE
------ -------------------------------------------------------- ----
1 DEFINITIONS 1
2 INTERPRETATION 10
3 SALE OF ASSETS 11
4 CALCULATION AND PAYMENT OF PRICE 11
5 RELOCATION 13
6 COMPLETION 14
7 TERMS OF OCCUPATION OF THE PREMISES 16
8 APPORTIONMENTS 16
9 RESPONSIBILITY FOR LIABILITIES 00
00 XXXXXXXXXX XXXXXXXXX 00
00 THE DEBTS 22
12 THIRD PARTY CONSENTS 22
13 EMPLOYEES AND PENSIONS 23
14 THE WARRANTIES 26
15 CONTINUING OBLIGATIONS 32
16 RESTRICTIVE TRADE PRACTICES ACT 34
17 GUARANTEE 34
18 INDEPENDENT ACCOUNTANTS 35
19 VALUE ADDED TAX 35
20 NOTICES 36
21 COSTS 37
22 CONFIDENTIALITY 37
CONTENTS
CLAUSE HEADING PAGE
------ -------------------------------------------------------- ----
23 COUNTERPARTS 37
24 REMEDIES AND WAIVER 37
25 ENTIRE AGREEMENT 38
26 FURTHER ASSURANCE 38
27 BENEFIT AND BURDEN 38
28 GOVERNING LAW AND SUBMISSION TO JURISDICTION 39
SCHEDULE
--------
SCHEDULE 1 WARRANTIES 40
1 Information 40
2 Capacity 40
3 The Accounts 41
4 Events since the Balance Sheet Date 42
5 Taxation 43
6 Legislation and Licences 44
7 Litigation 44
8 The Assets 44
9 The Purchased Contracts 45
10 Products 47
11 Trading and associated matters 48
12 Employees 49
13 Insurances 51
14 Intellectual Property and computers 00
00 Xxxx-xxxxx 00
00 Pensions 54
17 Trustee Warranties 55
SCHEDULE 2 EA ASSETS 57
SCHEDULE 3 FP ASSETS 58
SCHEDULE 4 PREMISES 59
SCHEDULE
--------
SCHEDULE 5 INTELLECTUAL PROPERTY 60
1 Registered/Patents 60
2 Patent Application 60
3 Registered Trade Xxxx 60
4 Unregistered Trade Marks 60
SCHEDULE 6 EQUIPMENT LEASES 62
SCHEDULE 7 LETTERS OF EMPLOYMENT 63
SCHEDULE 8 EMPLOYEES 64
SCHEDULE 9 COMPROMISE AGREEMENTS 70
SCHEDULE 10 PURCHASED CONTRACTS 71
SCHEDULE 11 CONSOLIDATED ACTUAL PROFITS 72
SCHEDULE 12 RETAINED ASSETS 73
SCHEDULE 13 CREDITORS 74
SCHEDULE 14 PERSONAL PENSIONS ARRANGEMENTS 75
DATE OF AGREEMENT 31 AUGUST, 1999
PARTIES
(1) XXXX XXXX of 00 Xxxxxxx Xxxx Xxxxxx Xxxxxx XX0 0XX, XXXXXX XXXX
and XXXXX XXXX both of Tanglewood Tydecombe Road Warlingham
Surrey
(2) ICON PLC (Company Number 3282011) whose registered office is at
0 Xxxxxx Xxxx Xxxxxxx Xxxx XX0 0XX
(3) EASY ARCHES LIMITED (Company Number 1830775) AND FURFIX PRODUCTS
LIMITED (Company Number 1581606) whose registered offices are at
0 Xxxxxx Xxxx Xxxxxxx Xxxx XX0 0XX
(4) XXXXXXX STRONG-TIE INTERNATIONAL INC (a company registered in
California with Company Number 1827300) whose principal office
is at 0000 Xxxxxx Xxxxx Xxxxx 000 Xxxxxxxxxx Xxxxxxxxxx XX00000
Xxxxxx Xxxxxx of America and whose branch (Branch Number
BR002186) in the United Kingdom is at Xxxxxxxxxx Xxxx Xxxxxxxx
Xxxxx Xxxxxxxx Xxxxxxxxxxxxx X00 0XX
INTRODUCTION
(A) The Sellers carry on the Businesses of the manufacture and
marketing of metal products for the building trade under the
names "Furfix, Easy Arch, Ceejay, and Panther". The parties
have agreed that the Buyer will acquire the Assets and the
Businesses from the Sellers.
(B) Icon is the holding company of the Sellers and has agreed to be
party to the Agreement to guarantee the liabilities and
obligations of the Sellers.
(C) The Trustees have agreed to be party to the Agreement to
guarantee the liabilities and obligations of the Sellers.
IT IS AGREED THAT:
1 DEFINITIONS
1.1 In this agreement the following words have the following
meanings set out below.
1.1.1 "Accounts" means the audited financial statements for
the Businesses for the period 1 September 1998 to 31 May
1999 (comprising a balance sheet, profit and loss
account, notes and directors' and auditors' reports) a
copy of which is annexed to the Disclosure Letter.
1.1.2 "Act" means the Companies Xxx 0000 as amended.
1.1.3 "Aggregate Net Assets" means the Debts and the acquired
assets of the Businesses valued at the written down book
value as at 31 August 1999 (calculated in accordance with
the Sellers accounting policies historically applied and
the Generally Accepted Accounting Principles of the United
Kingdom) less all liabilities and provisions of the
Businesses including the Creditors.
1.1.4 "agreed form" means in the form of the draft annexed to
this agreement and initialled for identification purposes
by or on behalf of the parties.
1.1.5 "Ancillary Documents" means the documents (if any) other
than this agreement, and written particulars of the terms
(if any) not in documentary form, in both cases forming
part of the arrangement of which this agreement itself is
part.
1.1.6 "Assets" means the EA Assets and the FP Assets but
excluding the Retained Assets.
1.1.7 "Balance Sheet Date" means 31 May 1999.
1.1.8 "Businesses" means the EA Business and the FP Business.
1.1.9 "Business Information" means all information (whether or
not confidential), including (but not limited to):
1.1.9.1 all information relating to the marketing of any
products or services;
1.1.9.2 all know-how and technical information, including
(but not limited to) that relating to the
Intellectual Property Rights or that which
relates to the design, manufacture, storage,
distribution and sale or supply of goods and
services; and
1.1.9.3 all financial information;
relating to the Businesses.
1.1.10 "Buyer" means Xxxxxxx Strong-Tie International Inc.
1.1.11 "Buyer's Accountants" means PricewaterhouseCoopers.
1.1.12 "Buyer's Solicitors" means edge xxxxxxx of Xxxxxxx Xxxxx,
000 Xxxxxx Xxxxxx, Xxxxxxxxxx X0 0XX.
1.1.13 "Claims" means the benefit of all rights which the Sellers
have against third parties relating to the Assets and the
Businesses, including (without limitation) all
manufacturers' and suppliers' warranties and
representations and all rights against insurers in respect
of any policies effected by the Sellers in connection with
the Assets and the Businesses.
1.1.14 "Ceejay Licence" means the licence document in respect of
the Ceejay Patent in the agreed form.
1.1.15 "Ceejay Patent" means all the patents granted worldwide
under patent application PCT/GB91/01347.
1.1.16 "Completion" means completion of the sale and purchase of
the Businesses pursuant to clause 6.
1.1.17 "Completion Statement" means the statement of the Debts,
the Credotors, the Aggregate Net Assets and the Price (as
determined pursuant to clause 4 prepared and audited by the
Buyer's Accountants in accordance with clause 10.
1.1.18 "Compromise Agreements" means the agreements in the agreed
form to be entered into prior to Completion between the
Buyer, the Seller and each of the individuals listed in
Schedule 9.
1.1.19 "Confidential Business Information" means Business
Information which is confidential.
1.1.20 "Consolidated Actual Profits" means the mutually agreed
operating profits before Taxation of the Businesses for the
12 month period ending 31 August 1999 determined on the
basis set out in Schedule 11 and including savings (arch
production and powder coating) and required investment
costs (depreciation and interest) generated at the Buyer's
premises at Tamworth due to the consolidation of the
Businesses with the Buyer's existing business.
1.1.21 "Creditors" means the trade creditors and other obligations
of the Businesses specified in Schedule 13 but for the
avoidance of doubt excluding ay costs incurred by the
Sellers in connection with this transaction.
1.1.22 "Customer" means a customer of the Businesses which has
placed any order in connection with the Restricted
Activities during the 12months prior to Completion.
1.1.23 "Debts" means all trade book debts, notes receivable and
other rights to payment arising from the operation of the
Businesses before Completion (including the right to
receive payment for goods despatched or delivered and
services rendered before Completion but not invoiced before
such date) and "Debtors" shall be interpreted accordingly.
1.1.24 "Disclosure Letter" means the letter delivered by the
Sellers' Solicitors to the Buyer's Solicitors immediately
prior to exchange of this agreement which contains certain
disclosures to the Warranties.
1.1.25 "DT Trust" means the Xxxxxx Xxxx discretionary settlement
in favour of Xxxxxx Xxxx, Xxxxx Xxxx and Xxxx Xxxx Xxxx.
1.1.26 "DT Trustees" means Xxxxxx Xxxx, Xxxxx Xxxx and Xxxx Xxxx.
1.1.27 "EA" means Easy Arches Limited.
1.1.28 "EA Assets" means those assets used in the EA Business and
detailed in Schedule 2.
1.1.29 "EA Business" means the business of the manufacture and
marketing of metal products for the building trade carried
on by Easy Arches Limited.
1.1.30 "Employees" means the employees of the Businesses a list of
whom appears in Schedule 8.
1.1.31 "Employee Relocation Costs" means all staff (salaried and
hourly paid) housing and moving allowance costs as per
agreed relocation and subsistence packages (as attached to
the Disclosure Letter)
1.1.32 "Encumbrances" means all pledges, charges, liens,
mortgages, security interests, pre-emption rights, options
and any other encumbrances or third party rights or claims
of any kind (other than provisions constituting reservation
or retention of title clauses entered into in the usual
course of the Businesses in favour of suppliers of goods
purchased in the usual course of the Businesses).
1.1.33 "Environment" means all or any of the following media,
namely, the air, water and land; and the medium of air
includes the air within buildings and the air within other
natural or man-made structures above or below ground.
1.1.34 "Environmental Law" means all and any laws, common law,
statutes, directives, regulations, notices, standards
having force of law, codes of practice, guidance notes, by-
laws, judgements, decrees or orders whether of the European
Community or the United Kingdom or any other relevant
jurisdiction, relating to pollution, contamination or
protection of the Environment or to the storage, labelling,
handling, release, treatment, manufacture, processing,
deposit, transportation or disposal of Hazardous
Substances.
1.1.35 "Environmental Licence" means any permit, licence,
authorisation, consent or other approval, that may be
required by any Environmental Law.
1.1.36 "Equipment Leases" means the lease and hire purchase
agreements listed in Schedule 6.
1.1.37 "Escrow Account" means an account in the joint names of the
Buyer's Solicitors and the Sellers' Solicitors for the
purposes of clause 5.
1.1.38 "Excluded Employees" means Xxxxx Xxxx, Xxxxxx Xxxx, Xxxxx
Xxxxx, , and J Xxxxxx.
1.1.39 "Excluded Liabilities" means all liabilities of the
Businesses including the Creditors.
1.1.40 "Forecast Information" means the information provided to
the Buyer by the Sellers in respect of the Businesses as
set out in Schedule 11.
1.1.41 "FP" means Furfix Products Limited.
1.1.42 "FP Assets" means those assets used in the FP Business and
detailed in Schedule 3.
1.1.43 "FP Business" means the business of the manufacture and
marketing of metal products for the building trade carried
on by Furfix Products Limited.
1.1.44 "Guarantors" means Icon and the Trustees.
1.1.45 "Goodwill" means the goodwill of the Sellers in connection
with the Businesses including the exclusive right for the
Buyer to represent itself as carrying on the Businesses in
succession to the Sellers and to use all or any trading
names used in carrying on the Businesses.
1.1.46 "Hazardous Substances" means all substances of whatever
description which may cause or have a harmful effect on the
Environment or the health of man or any other living
organism including, without limitation, all poisonous,
toxic, noxious, dangerous and offensive substances.
1.1.47 "Icon" means Icon plc.
1.1.48 "Intellectual Property" means the following rights arising
or used in connection with the Businesses (including but
not limited to those listed in Schedule 5):
1.1.48.1 all patents, registered designs, design rights,
trade marks, copyrights, (including rights to
software) moral rights, topography rights, trade
and business names, including the benefit of all
registrations of and applications to register any
of the aforesaid items, and all rights in the
nature of any of the aforesaid items, anywhere in
the world;
1.1.48.2 rights in the nature of unfair competition rights
and rights to xxx for passing off;
1.1.48.3 all trade secret, confidentiality and other
proprietary rights, including all rights to know-
how and other technical information;
1.1.48.4 the benefit of all licences and permissions
granted to or enjoyed by the Sellers in respect
of any of the foregoing.
1.1.49 "Letters of Employment" means the agreements in the agreed
form to be entered into on Completion between the Buyer and
each of the individuals listed in Schedule 7.
1.1.50 "Licences" means the licences to occupy the Premises to be
granted to the Buyer by;
1.1.50.1 FP for a term expiring on 31 January 2000 in
respect of Units 1, 2, 3 and 0, Xxxxxxxxxx Xxxx
Xxxx, Xxxxxxx; and
1.1.50.2 EA for a term expiring on 24 December 1999 in
respect of Lodge Field road, Halesowen
to facilitate the transition of the transfer of
the Businesses from the Premises to the Buyer's
premises at Tamworth in the agreed form.
1.1.51 "Losses" means actions, costs, claims, damages, demands,
expenses (including legal expenses), fines, liabilities,
losses, penalties and proceedings suffered or incurred.
1.1.52 "LP Trust" means the interest in possession trust in favour
of Xxxxx Xxxxx.
1.1.53 "LP Trustees" means Xxxxxx Xxxx and Xxxxx Xxxx.
1.1.54 "Millennium Compliant" means that neither the performance
nor the functionality of any of the Systems is or will be
affected by dates prior to, during or after the year 2000
and in particular (but without limitation):
1.1.54.1 no value for current date causes or will cause
any interruption in operation;
1.1.54.2 date-based functionality behaves and will behave
consistently for dates prior to, during and after
the year 2000;
1.1.54.3 in all interfaces and data storage, the century
in any date is and will be specified either
explicitly or by unambiguous algorithms or
inferencing rules; and
1.1.54.4 the year 2000 is and will be recognised as a leap
year.
1.1.55 "Occupational Pension Scheme" has the meaning given to it
by Section 1 of the PSA 1993.
1.1.56 "Pension Scheme" means the Furfix Self-administered Pension
Fund.
1.1.57 "Personal Pension Arrangements" means the personal pension
schemes set out in Schedule 14 to which the Sellers
contribute on behalf of those Employees listed in the same
document.
1.1.58 "Premises" means the leasehold premises of the Sellers,
brief particulars of which appear in Schedule 4.
1.1.59 "PF Trust" means the interest in possession trust in favour
of Xxxx Xxxx Xxxx.
1.1.60 "PF Trustees" means Xxxxxx Xxxx and Xxxxx Xxxx.
1.1.61 "Price" means the total consideration payable for the
Assets and the Businesses to be calculated and paid by the
Buyer in accordance with clause 4 and apportioned between
the Assets in accordance with Schedule 2 and Schedule 3.
1.1.62 "PSA 1993" means the Xxxxxxxx Xxxxxxx Xxx 0000.
1.1.63 "Purchased Contracts" means:
1.1.63.1 the Equipment Leases;
1.1.63.2 all those contracts for the sale of goods or the
supply of services by the Sellers in connection
with the Businesses which are in existence and
have not been fully performed by Completion;
1.1.63.3 all those purchase orders or contracts for the
purchase by the Sellers of raw materials,
components and supplies in connection with the
Businesses in respect of which delivery has not
been made by Completion;
1.1.63.4 all those agreements with sales representatives,
sales agents or distributors which are listed in
Schedule 10 part 1;
1.1.63.5 all those licences in relation to the
Intellectual Property which are identified in
Schedule 10 part 2; and
1.1.63.6 such other contracts entered into in the course
of carrying on the Businesses which are
identified in Schedule 10 part 5.
1.1.64 "Registrable Restriction" means a provision by virtue of
which the Restrictive Trade Practices Act 1976 applies to
an agreement.
1.1.65 "Regulations" means the Transfer of Undertakings
(Protection of Employment) Regulations 1981 as amended.
1.1.66 "Relevant Benefits" has the meaning given to it in Section
612(1) of the Taxes Act.
1.1.67 "Relocation Direct Costs" means all costs of disconnection,
moving to Tamworth and reconnection of all assets
(including (without limitation) machinery and furniture)
plus transportation of all stock, work in progress and raw
materials.
1.1.68 "Restricted Activities" means the businesses of the Sellers
at Completion including (without limitation) the
manufacture and marketing of metal products for the
building trade as carried on by the Businesses.
1.1.69 "Retained Assets" means those items listed in Schedule 12
which are excluded from this sale.
1.1.70 "Retirement Benefit Scheme" means any pension scheme or
other arrangement providing benefits which would be
Relevant Benefits if they were provided by such a scheme or
arrangement within the United Kingdom.
1.1.71 "Sales Documentation" means all sales publications,
advertising and promotional materials, printed terms and
conditions of sale, business forms, instructional material
and other technical and sales materials which relate to the
Businesses, together with any plates, blocks, negatives,
computer discs or tapes and similar items relating to them.
1.1.72 "Sellers" means EA and FP.
1.1.73 "Sellers' Accountants" means Xxxxx Xxxxx
1.1.74 "Sellers' Solicitors" means Stonehams Solicitors.
1.1.75 "Specified Rate" means 4% above the base lending rate from
time to time of Barclays Bank plc.
1.1.76 "Systems" means the computer, telecommunications and
networking hardware and software (including but not limited
to the software licences listed in Schedule 5)used by the
Businesses and all other systems used in the Businesses
which are controlled by computer software or chips.
1.1.77 "Taxation" means all sums due by the Sellers to H M Inland
Revenue, H M Customs & Excise and any other taxation
authority, whether in respect of income or corporation tax,
Pay As You Earn, National Insurance or value added tax in
respect of any period before Completion.
1.1.78 "Taxes Act" means the Income and Corporation Taxes Xxx
0000.
1.1.79 "Trade Marks" means the registered trade xxxx and
unregistered trade marks listed in Schedule 5.
1.1.80 "Trustees" means the DT Trustees, PF Trustees and the LP
Trustees as trustees of the relevant trust and for and on
behalf of such trusts.
1.1.81 "VAT" means value added tax.
1.1.82 "VATA" means Value Added Tax Xxx 0000.
1.1.83 "Warranties" means the representations, warranties and
undertakings contained or referred to in clause 14 and
Schedule 1.
1.1.84 "Warrantors" means the Sellers, Icon and the Trustees.
1.1.85 "Working Day" means a day (other than a Saturday or a
Sunday) on which clearing banks are generally open for
business in the City of London.
2 INTERPRETATION
2.1 Words and phrases which are defined in the Act shall (unless the
context requires otherwise) have the same meaning in this
agreement.
2.2 Where reference is made to a statutory provision this includes all
prior and subsequent enactments, amendments and modifications
relating to that provision and any regulations made under it.
2.3 References to clauses and schedules are to the clauses and
schedules of this agreement unless stated otherwise.
2.4 References to the masculine gender include the feminine and vice
versa. Similarly, references to the singular include the plural
and vice versa.
2.5 References to an English legal term shall, in respect of any
jurisdiction other than England, be deemed to include what most
nearly approximates in that jurisdiction to the English legal term.
2.6 The ejus dem generis rule shall not apply and therefore general
words shall not be given a restrictive meaning even if they are
preceded or followed by particular words.
2.7 The headings and table of contents of this agreement are inserted
for convenience only. They are not to affect its interpretation or
construction.
2.8 The various schedules all form part of this agreement.
3 SALE OF ASSETS
3.1 The Sellers shall sell with full title guarantee, and the Buyer
shall purchase, the Businesses as a going concern and all of the
Assets free from all Encumbrances. The sale and purchase shall
take effect from the close of business on the day of Completion.
The consideration payable by the Buyer shall be the Price .
3.2 Nothing in this agreement shall operate to transfer from the
Sellers, nor to impose any obligation or liability on the Buyer in
respect of, any of the Excluded Liabilities nor any other assets
or liabilities of the Sellers except as specifically provided in
this agreement.
3.3 Without prejudice to the Buyer's right to bring a claim pursuant to
any warranty representation or indemnity set out in this agreement,
the Buyer shall be responsible for all duties, fees costs and other
expenses required to register its title to the Assets or any part
thereof provided that the Sellers shall provide all reasonable
assistance to the Buyer to enable it to do so and for the avoidance
of doubt, where the Buyer is unable to register its title as a
result of a failure by the Sellers to make any payment or take any
action prior to Completion which should have been taken prior to
Completion the Sellers shall at the written request of the Buyer
immediately take all such action and/or make all payments necessary
to enable the Buyer to register its title. If as a result of the
Sellers failure to take any action or make any payment prior to
Completion the Buyer remains unable to register its title to any
Asset, the Sellers shall keep the Buyer fully and effectively
indemnified in respect of any Losses suffered or incurred by the
Buyer arising out of or in connection with it being unable to
register its title to such Asset.
4 CALCULATION AND PAYMENT OF PRICE
4.1 Subject to adjustment in accordance with clauses 4.2, 4.3 and 4.4
below, the Price shall be GBP4,628,000 provided that the
Consolidated Actual Profits are greater than GBP950,000 and less
than GBP1,050,000 and the Aggregate Net Assets of the Businesses as
at 31 August 1999 are greater than or equal to GBP2,100,000.
4.2 Subject to further adjustment in accordance with clauses 4.3 and
4.4 below, if the Consolidated Actual Profits are:
4.2.1 less than GBP950,000 the Price shall be calculated as
follows:
Price = GBP4, 628,000 - 5 x (GBP950,000 - Consolidated
Actual Profits);
4.2.2 more than GBP1,050,000 then the Price shall be calculated
as follows:
Price = GBP4, 628,000 + 5 x (Consolidated Actual Profits -
GBP1,050,000); and
4.3 If the Aggregate Net Assets of the Businesses as at 31 August 1999
are less than GBP2,100,000 the sum of GBP4, 628,000 or the amount
determined in accordance with clause 4.2, whichever is appropriate,
shall be reduced on a GBP1 for GBP1 basis by the amount of such
shortfall to give the Price. For the avoidance of doubt if the
Aggregate Net Assets of the Businesses as at 31 August 1999 are
greater than GBP2,100,000 the Price shall not be increased.
4.4 The amount determined following the adjustments pursuant to clauses
4.2 and 4.3 to the sum referred to in clause 4.1 shall be further
adjusted as follows:
4.4.1 it shall be reduced on a GBP1 for GBP1 basis by the amount
of the Debts determined in accordance with clause 10 and
set out in the Completion Statement; and
4.4.2 it shall be increased on a GBP1 for GBP1 basis by the
amount of the Creditors determined in accordance with
clause 10 and set out in the Completion Statement.
4.5 The Price is to be paid by the Buyer on Completion as follows:
4.5.1 an amount equal to GBP3,860,000 will be paid to the
Sellers on account of the Price;
4.5.2 a sum of GBP25,000 shall be paid into an Escrow Account
(Escrow Account No. 1) on account of the Price;
4.5.3 GBP743,000 will be paid into an Escrow Account (Escrow
Account No. 2) on account of the Price .
4.6 The Sellers irrevocably authorise the Sellers' Solicitors to
receive all sums due to them under this agreement. Any cash
payment is to be made by banker's draft or telegraphic transfer
drawn on a United Kingdom clearing bank. The receipt of the
Sellers' Solicitors shall give a full and valid discharge to the
Buyer and the Buyer shall not be required to enquire as to the
application of any such payment.
4.7 In the event that any payment due to either the Sellers or the
Buyer pursuant to this agreement is not paid on the due date,
interest shall accrue and be paid by the relevant party on the
amount of such payment at the Specified Rate from the due date
until the date upon which payment is made.
5 RELOCATION
5.1 The Buyer intends to move the Assets and the Businesses to its
premises following Completion.
5.2 Within 30 working days of the Assets and the Businesses having been
moved to the Buyer's premises the Buyer shall notify the Sellers of
the Relocation Direct Costs which it has incurred such costs to be
limited to the costs of removal, transportation and reinstallation
of the Assets (to include appropriate connections to required
services and facilities provided that such facilities are available
at the Buyer's premises within 3 metres of the intended
installation point) and include the making good of the Premises
following the removal of the Assets.
5.3 Within 12 months of the Assets and the Businesses having been moved
to the Buyer's premises the Buyer will notify the Sellers of the
Employee Relocation Costs which it has incurred.
5.4 The Sellers agree that they shall pay to the Buyer an amount equal
to 50 per cent of the amount by which such Relocation Direct Costs
and Employee Relocation Costs together exceed GBP100,000 up to a
maximum sum of GBP50,000.
5.5 If the Relocation Direct Costs and Employee Relocation Costs do not
exceed GBP100,000 then the parties shall jointly direct the Buyer's
Solicitors and the Sellers' Solicitors to pay all amounts in Escrow
Account No. 1 to the Sellers. If such costs do exceed GBP100,000
then the parties shall jointly direct the Buyer's Solicitors and
the Sellers' Solicitors to ensure that an amount equal to 50% of
such excess shall be paid out of Escrow Account No. 1 to the Buyer
and to pay any amount remaining in Escrow Account No. 1 to the
Sellers. If the Sellers' Liability to the Buyer pursuant to this
clause exceeds the amount in Escrow Account No. 1 the Sellers shall
satisfy such liability by way of a banker's draft within 14 days of
the Buyer's notification pursuant to clause 5.2.
5.6 In the event that the Relocation Direct Costs or Employee
Relocation Costs have not been incurred by the end of the year 2000
the parties shall jointly direct the Buyer's Solicitors and the
Sellers' Solicitors to pay all sums plus accrued interest held in
Escrow Account No. 1 to the Sellers and the Sellers will have no
liability in respect of any such costs incurred by the Buyer after
the expiry of 9 months from Completion.
5.7 In all cases the Buyer's Solicitors and the Sellers' Solicitors
shall not be obliged to pay from Escrow Account No. 1 more than
GBP25,000 plus any accrued interest thereon less any deductions
they are required to make therefrom.
5.8
6 COMPLETION
6.1 Completion shall take place at the offices of the Buyer's
Solicitors at 00 Xxxxxxxxxxx Xxxxx, Xxxxxx, XX0X 0XX when all (but
not some only) of the following events shall occur:
6.1.1 the Sellers shall:
6.1.1.1 deliver to the Buyer and place the Buyer in
possession of all of the Assets including
(without limitation), all loose plant, machinery,
equipment, stock and work in progress of the
Businesses, all information embodying the
Intellectual Property, the Business Information
and the Sales Documentation (in whatever form and
upon whatever media they may be recorded);
6.1.1.2 deliver to the Buyer duly executed assignments in
the agreed form of the Trade Marks, Patents,
other Intellectual Property, Purchased Contracts,
Goodwill, Debts and Claims;
6.1.1.3 complete the Licences and confirm that (and
provide duly certified copies of) any and all
consents necessary for the granting of the
Licences have been obtained;
6.1.1.4 deliver to the Buyer the Ceejay Licence duly
executed by Xxxxxx Xxxxxx and Xxxx Xxxxx;
6.1.1.5 deliver to the Buyer all the books of account,
ledgers, payroll records, stock and asset
records, information relating to customers and
suppliers (including without limitation a list of
all the customers of the Businesses during the
last two years and a list of customers to which
outstanding quotations have been given), and
other books and documents which relate to the
Businesses (other than records and minute books
relating to directors' and shareholders' meetings
and statutory books) in whatever form and upon
whatever media they may be recorded provided that
the Buyer shall allow the Sellers free reasonable
access to such documents during business hours
and on reasonable notice to enable the Sellers to
prepare their accounts for the financial period
ending on 31 August 1999 and other reasonable and
lawful purposes;
6.1.1.6 deliver to the Buyer the Letters of Employment
duly executed;
6.1.1.7 deliver to the Buyer the Compromise Agreements
duly executed;
6.1.1.8 deliver to the Buyer a certified copy of
resolutions of the board of directors of each of
the Sellers approving the sale of their
Businesses and Assets on the terms of this
agreement and the Licences and authorising
execution of all necessary documents;
6.1.1.9 deliver to the Buyer a certified copy of the
resolution of the board of directors of Icon
approving the terms and the execution of this
agreement for and on behalf of Icon;
6.1.1.10 deliver to the Buyer a certified copy of the
special resolutions of each of the Sellers
resolving to change its name together with a
cheque from each of the Sellers for GBP100 drawn
in favour of the Registrar of Companies;
6.1.1.11 deliver to the Buyer a duly executed release in
the agreed form of any charges or other security
over the Assets, Premises or the Businesses;
6.1.2 the Buyer shall deliver to the Sellers:
6.1.2.1 the sum of GBP3,860,000 by way of telegraphic
transfer or a banker's draft drawn on a United
Kingdom clearing bank on account of the Price;
6.1.2.2 written confirmation of payment of the sum of
GBP25,000 into Escrow Account No. 1;
6.1.2.3 written confirmation of payment of the sum of
GBP743,000 into Escrow Account No. 2;
6.1.2.4 duly executed counterparts of the documents
referred to in clauses 6.1.1.2;
6.1.2.5 a certified copy of a resolution of the board of
directors of the Buyer approving the purchase of
the Assets and Businesses on the terms of this
agreement and authorising execution of this
agreement and all ancillary documents for and on
behalf of the Buyer; and
6.1.2.6 executed counterparts of the Licences;
6.1.3 the Buyer shall deliver an executed counterpart of each of
the Letters of Employment.
6.2 The Sellers undertake to the Buyer that they will within 7 days of
Completion provide evidence reasonably satisfactory to the Buyer
that all charges or other security over the Assets, Premises or the
Businesses have been duly released.
7 THE PREMISES
7.1 The Sellers agree to fully indemnify the Buyer against any Losses
suffered by the Buyer as a result of any claims being made against
the Buyer under Environmental Law in relation to the Premises
unless any such claims are due to the act or default of the Buyer.
8 APPORTIONMENTS
8.1 The following items of expenditure and income shall be apportioned
such that the cost of items of expenditure accrued, or referable to
periods, prior to Completion shall be borne by the Sellers and
thereafter by the Buyer and the benefit of items of income accrued,
or referable to periods, prior to Completion shall belong to the
Sellers and thereafter to the Buyer:
8.1.1 all rents (not including VAT), royalties and other
periodical payments payable and receivable in respect of
the Businesses;
8.1.2 all road fund licence fees payable in respect of any motor
vehicles included in the Assets;
8.1.3 all salaries, wages, accrued holiday pay entitlement, and
other emoluments including but not limited to PAYE, income
tax, National Insurance contributions and any contributions
to the Employee's Personal Pension Arrangements relating to
the employment of the Employees in the Businesses;
8.1.4 all pre-payments made, and all deposits received, by the
Sellers under the Purchased Contracts;
8.1.5 the premiums payable under the policies of insurance held
in respect of the Businesses.
8.2 The parties shall use all reasonable endeavours to draw up and
agree a statement of the apportionments referred to in clause 8.1,
and the balance owing by one party to the other, as soon as
practicable after the Completion Date. If such statement has not
been prepared and agreed within 30 days after the Completion Date,
either party may refer the matter for resolution in accordance with
the procedure in clause 18. Payment of the balance agreed, or
determined under clause 18, to be due shall be made within 14 days
after such agreement or determination.
9 RESPONSIBILITY FOR LIABILITIES
9.1 Without prejudice to the Warranties, the Sellers shall be
responsible for, and shall keep the Buyer fully and effectively
indemnified against:
9.1.1 the Excluded Liabilities;
9.1.2 all Losses, debts, obligations and liabilities arising from
the carrying on of the Businesses prior to Completion
unless specifically assumed by the Buyer pursuant to this
agreement;
9.1.3 all claims by and liabilities to third parties in respect
of any negligent act or omission or breach of obligation of
the Sellers prior to Completion or arising from any defects
in products or parts of products manufactured by the
Sellers prior to Completion, even if the defective products
or parts are sold by the Buyer;
9.1.4 all liabilities or obligations to banks or other non-trade
creditors, and all tax liabilities of the Sellers;
9.1.5 all liabilities or obligations retained by the Sellers
under the Licences;
9.1.6 all obligations and liabilities accrued or falling to be
performed under the Purchased Contracts up to Completion;
9.1.7 all claims, losses, liabilities, damages, costs, fines and
penalties suffered incurred of whatsoever nature by the
Buyer due to the terms of any of the Purchased Contracts
infringing or being deemed to be in breach of Articles 81
and/or 82 of the Treaty of Rome;
9.1.8 all claims, losses, liabilities, damages, costs and
expenses suffered or incurred of whatsoever nature by the
Buyer due to the Sellers failing to transfer in accordance
with its terms the benefit of the distribution agreement
between Wanit Universal GmbH & Co. KG and Furfix Products
(Deutschland) GmbH to Furfix Products Limited subject at
all times to the Buyer complying faithfully with the terms
of such agreement;
9.1.9 all claims, losses, liabilities, damages, costs and
expenses suffered or incurred of whatsoever nature due to
any claim by any third party that the manufacture of
products in accordance with this Ceejay Patent infringes
its intellectual property rights, such liability to be
limited to the sum of GBP100,000 in respect of each such
claim;
9.1.10 all Losses suffered or incurred by the Buyer as a result of
the reduction, cancellation, reclamation, withdrawal or
otherwise of any grant received by the Businesses prior to
Completion;
9.1.11 all Losses suffered or incurred by the Buyer in connection
with the agreement between Icon and The Xxxx Limited
trading as Orangutan dated 12 April 1999.
9.2 Without prejudice to clause 9.1.11 in consideration of the Sellers
and Icon agreeing that they will continue all promotion activities
currently in operation pursuant to the agreement referred to in
clause 9.1.11 in accordance with the terms of such agreement and
that they will obtain all insurances reasonably necessary in
connection with such promotional activities, the Buyer agrees to
contribute GBP27,000 towards the Sellers' and Icon's costs of so
doing.
9.3 Without limitation to the provisions of clause 9.1, the Sellers
shall remain responsible for and shall pay or discharge the
Creditors in accordance with the general practices of the
Businesses prior to Completion and will indemnify the Buyer and
keep the Buyer indemnified against all proceedings, costs, claims,
demands, expenses and liabilities which the Buyer may suffer
sustain or incur by reason of the Sellers' failure to comply with
their obligations under this clause.
9.4 With effect from Completion all complaints received by the Sellers
or the Buyer from customers of the Businesses in relation to goods
supplied or services rendered prior to Completion shall be dealt
with as follows:
9.4.1 all such complaints together with a course of action
proposed by the Buyer shall be referred in the first
instance to the Sellers. The Sellers shall have 7 days
from receipt of notification to confirm to the Buyer in
writing that they will deal with the complaint themselves
and the Buyer agrees to use reasonable endeavours to supply
any necessary replacement goods to the Sellers at
manufacturing cost.
9.4.2 if the Sellers do not so notify the Buyer, the Buyer will
use reasonable endeavours to resolve the complaints itself.
Such resolution may include the supply of any replacement
goods and the carrying out of any remedial services.
If the Buyer considers that it is unable to resolve the
complaint, it shall refer the complaint to the Sellers who
shall be responsible at their own expense for resolving the
same;
9.4.3 each party will provide any information or assistance
reasonably requested by the other in dealing with
complaints under this clause;
9.4.4 the Sellers will reimburse the Buyer within 14 days of
written demand all reasonable and proper expenses and costs
incurred by the Buyer in dealing with complaints under this
clause;
9.4.5 if the Sellers fail to notify the Buyer in accordance with
clause 9.4.1 above the Buyer shall be free to deal with
complaints in a manner which it considers to be consistent
with the maintenance and preservation of the goodwill of
the Businesses;
9.4.6 without prejudice to the Buyer's rights to make a claim
pursuant to the Warranties or any other provision of this
agreement the Buyer shall indemnify the Sellers in respect
of any claims, losses or costs which it suffers arising
from the operation of the Businesses after Completion.
10 COMPLETION STATEMENT
10.1 Immediately after Completion the Buyer's and the Sellers shall
together complete a physical stocktake of the Assets.
10.2 As soon as practicable after completion of the stock take, and in
any event no later than 17 September 1999, the Sellers shall
provide all information to the Buyer's Accountants reasonably
necessary for them to prepare the Completion Statement including
(for the avoidance of doubt) the financial statements of the
Businesses for the 12 month period ending 31 August 1999. Within
three weeks of receipt of all such information by the Buyer's
Accountants, the Buyer's Accountants shall carry out an audit of
the financial statements of the Businesses for the 12 month period
ending 31 August 1999 and shall deliver to the Sellers' Accountants
a draft Completion Statement stating the Aggregate net Assets, the
Debts and the Creditors each determined on the same basis as the
Accounts, in accordance with the Act and with United Kingdom
generally accepted accounting principles and applicable accounting
standards and on the basis that:
10.2.1 the Businesses are going concerns and are being purchased
as such;
10.2.2 fixed assets are to be depreciated on a historical cost
basis and included at the written down book value and are;
10.2.3 work in progress shall be valued on the basis only of
direct material, direct labour and manufacturing expenses
directly attributable thereto;
10.2.4 stock is assessed and valued in accordance with the
Sellers' standard accounting practice ; and
10.2.5 any Debts which have not been paid within 90 days of
invoice shall be ascribed a nil value but shall be
reinstated if recovered after Completion but before the
Completion Statement is agreed or determined.
10.3 Subject to the Sellers complying with 10.2, if the Completion
Statement is not delivered in accordance with clause 10.2 above on
or before the 18 October 1999, the Sellers shall be entitled to
instruct the Sellers' Accountants to prepare the Completion
Statement and in such circumstances references to the Buyer's
Accountants shall be deemed to be a reference to the Sellers'
Accountants, references to the Sellers' Accountants shall be deemed
to be a reference to the Buyer's Accountants, references to the
Buyer shall be deemed to be reference to the Sellers and references
to the Sellers shall be deemed to be a reference to the Buyer for
the purposes of this clause 10. In such circumstances the Sellers'
Accountants' reasonable and proper costs incurred in the
preparation of the Completion Statement will be paid by the Buyer.
10.4 The Completion Statement will include a statement of the Price
adjusted as necessary as required under clauses 4.2, 4.3 and 4.4
above.
10.5 Subject to the Sellers' Accountants signing a "hold harmless
letter" in favour of the Buyer's Accountants and in a form
reasonably satisfactory to the Buyer's Accountants, the Sellers'
Accountants shall be entitled on reasonable notice and during
business hours to inspect the Buyer's Accountants' working papers
and such other documents as may be reasonably necessary in order to
verify that the calculation of the Price and the Aggregate Net
Assets, the Debts and the Creditors has been carried out in
accordance with this agreement.
10.6 If the Sellers notify the Buyer in writing of their agreement with
the draft Completion Statement, or the parties resolve any matter
notified to the Buyer pursuant to clause 10.7 between themselves,
such statement (or amended statement as the case may be) shall
constitute the Completion Statement and the Price the Aggregate Net
Assets, the Debts and the Creditors set out therein shall be final
and binding upon the parties (save in the event of manifest error).
10.7 The Sellers shall notify the Buyer in writing within 15 working
days of receipt of the draft Completion Statement pursuant to
clause 10.2 if they do not agree with the draft Completion
Statement on the basis that the Completion Statement has not been
prepared in accordance with the provisions of this clause 10 and
specifying in reasonable detail the particular matter or item in
respect of which objection is raised. The Sellers' Accountants
will be entitled to submit questions in writing to the Buyer's
Accountants concerning the presentation of the Completion
Statement. The parties shall instruct their respective Accountants
to consider the objections raised in a bona fide attempt to resolve
any questions or disputes which may arise. If the parties cannot
resolve the matter in dispute within 30 days of the date on which
the Sellers notify the Buyer of their disagreement, the matter may
be referred to an independent firm of accountants for resolution in
accordance with clause 18.
10.8 If no notification is given by the Sellers in accordance with
clauses 10.6 or 10.7 they shall be deemed to have agreed the draft
Completion Statement and such statement shall constitute the
Completion Statement and the Price the Aggregate Net Assets, the
Debts and the Creditors set out therein shall be final and binding
upon the parties (save in the case of manifest error).
10.9 If the Price included in the Completion Statement is greater than
GBP3,885,000 then the Buyer shall be liable to the Sellers for the
amount of such excess. The parties shall jointly direct the
Buyer's Solicitors and the Sellers' Solicitors to ensure that an
amount equal to the excess is paid out of Escrow Agreement No. 2 to
the Sellers and to pay any amount remaining in Escrow Account No. 2
to the Buyer. If the Buyer's liability to the Sellers pursuant to
this clause exceeds the amount in Escrow Account No. 2 the Buyer
shall satisfy such liability by way of a banker's draft or
telegraphic transfer within 10 Working Days of the agreement or
other determination (as the case may be) of the Completion
Statement.
10.10 If the Price is less than GBP3,885,000 then the Sellers shall be
liable to the Buyer for the amount of such deficit and the Sellers
shall satisfy such liability by way of a banker's draft or
telegraphic transfer within 10 Working Days of the agreement or
other determination (as the case may be) of the Completion
Statement. In addition the parties shall jointly direct the
Buyer's Solicitors and the Sellers' Solicitors to pay all amounts
in Escrow Agreement No. 2 to the Buyer within 10 Working Days of
the agreement or other determination (as the case may be) of the
Completion Statement.
10.11 In all cases the Buyer's Solicitors and the Sellers' Solicitors
shall not be obliged to pay from Escrow Account No. 2 more than
GBP743,000 plus any accrued interest thereon less any deductions
they are required to make therefrom.
11 THE DEBTS
11.1 The Buyer agrees that it will if so requested by the Sellers act as
agent for the Sellers and use all reasonable endeavours at the
Sellers' expense to collect the Debts. The Buyer will hold any
payments which it receives in respect of the Debts upon trust for
the relevant Seller and for the first 120 days after Completion
will account to the Sellers for the same on a fortnightly basis
(without any deduction or set off), failing which any sums
collected but not delivered to the Sellers will bear interest at
the Specified Rate from the date upon which the Buyer should have
accounted to the Sellers to the date of payment in full to the
Sellers. After that time the Buyer will account to the Sellers on
a quarterly basis in arrears for any Debts which it receives.
11.2 Payments of debts made by a customer who owes money in connection
with either of the Businesses both to the Sellers and to the Buyer
shall (in the absence of manifest error) be attributable to those
debts in respect of which he expressly apportions his payment at or
before the time of payment or, if he makes no such apportionment to
the debt first in time inccurred by him which remains outstanding.
11.3 The Buyer shall not be required to institute or threaten any legal
proceedings or terminate any supplies or to take any steps for the
recovery of the Debts which are not at present part of the normal
routine of the Sellers in the collection of debts.
11.4 During the period of 120 days immediately following Completion, the
Sellers will not themselves take any steps to collect the Debts
(including, without limitation, instituting or threatening to
institute any legal proceedings) and will not do anything to hinder
their collection by the Buyer. If the Sellers should receive any
communication or payment in respect of such a Debt it will
immediately give details of it to the Buyer in writing and the
Buyer will be under no further obligation or liability in respect
thereof.
11.5 Following expiry of the period of 120 days following Completion the
Sellers alone shall be responsible for the collection of any Debts
and the Buyer will have no further obligations or liabilities in
respect thereof.
12 THIRD PARTY CONSENTS
12.1 The parties shall use reasonable endeavours to obtain the consent
or approval of any person who is not a party to this agreement to
the transfer to the Buyer of the benefit of any of the Purchased
Contracts and where necessary an appropriate deed of variation or
novation in respect of any such Purchased Contract (provided that
the Sellers shall keep the Buyer fully indemnified against any
costs or expenses incurred or suffered by it in so doing subject to
a maximum liability in any event of GBP10,000).
12.2 If any such variation, novation, consent or approval has not been
received at or prior to Completion until such variation, novation,
consents or approvals are obtained:
12.2.1 this agreement shall not constitute an assignment or
attempted assignment of any such Purchased Contract whose
terms would be broken by an assignment or attempted
assignment;
12.2.2 the assignment of each such Purchased Contract shall be
conditional upon such variation, novation, consent or
approval, which the Sellers shall use their reasonable
endeavours to obtain as soon as practicable;
12.2.3 until such time as such variation, novation, consent or
approval is received to the satisfaction of the Buyer, the
Sellers shall be deemed to be holding the benefit thereof
in trust for the Buyer; and
12.2.4 in the event that any such variation, novation, consent or
approval is not obtained in respect of any of the Purchased
Contracts (other than sales contracts) within 30 days after
Completion, the Buyer shall have the right to elect that
the appropriate item be excluded from the sale and purchase
hereunder and in such event there shall be refunded to the
Buyer the part of the Price fairly allocable to the item in
question. Any dispute as to the amount so allocatable
shall be resolved under clause 18.
13 EMPLOYEES AND PENSIONS
13.1 By virtue of the Regulations all the Sellers' rights, duties,
powers, liabilities and obligations (other than those in respect of
the Pension Scheme and any other Occupational Pension Scheme
insofar as they are excluded from the application of the
Regulations by Regulation 7 of the Regulations or any other of the
Regulations) in respect of any contract of employment with the
Employees still in force immediately before Completion shall be
transferred to the Buyer.
13.2 The Sellers shall keep the Buyer fully and effectively indemnified
from and against all Losses arising out of or in connection with:
13.2.1 the acts or omissions of the Sellers in relation to the
employment of the Employees and Excluded Employees during
the period when they were employed by the Sellers; and
13.2.2 any other employees of the Sellers whether before or after
Completion.
13.3 The Sellers shall keep the Buyer fully and effectively indemnified
against:
13.3.1 all emoluments and outgoings in respect of the Excluded
Employees or any self employed persons of the Sellers,
(including without limitation all wages, bonuses,
commission, PAYE, national insurance contributions, pension
contributions, accrued holiday entitlement and otherwise,
up to Completion); and
13.3.2 all Losses arising due to or in connection with the
termination of the employment of any of the Excluded
Employees by the Sellers (or on any resignation of any of
the Excluded Employees) and the engagement of any self
employed person of the Sellers, including (but not limited
to) redundancy, unfair, wrongful or constructive dismissal,
sex, race or disability discrimination in each case whether
before or after Completion and against all costs, damages,
fines, judgements, expenses and liability whatsoever
reasonably incurred in relation to such claim; and
13.3.3 all actions, proceedings, costs, claims, demands, awards,
fines, orders and liabilities whatsoever arising or having
their cause of action in connection with the acts or
omissions of the Sellers or any of them in relation to the
employment of the Excluded Employees by the Sellers prior
to Completion and any claim by any person from any act or
omission of any of the Excluded Employees prior to
Completion; and
13.3.4 any emoluments, outgoings, actions, proceedings, costs,
claims, demands, awards, fines, orders, liabilities or
Losses incurred by the Buyer in connection with the
transfer of the contract of employment of Xxx Xxxxxxxx to
the Buyer on or after Completion.
13.3.5 any Losses incurred by the Buyer in connection with any
claims made by Xxxxxxxx Xxxxx in connection with the
termination of his employment following Completion.
13.4 The Sellers shall keep the Buyer fully and effectively indemnified
against all Losses arising due to or in connection with the
termination of the employment of Xxxxxx Xxxxxx by the Seller or the
Buyer including (but not limited to) redundancy, unfair, wrongful
or constructive dismissal, sex, race or disability discrimination
claims whether before or after Completion and against all costs,
damages, fines, judgements, expenses and liabilities whatsoever
reasonably incurred in relation to such claim.
13.5 The Sellers will fully indemnify the Buyer against all Losses
against any action or claim by any Employee or Excluded Employee or
by any representative of the Employees or Excluded Employees or any
of them by virtue of:
13.5.1 Regulations 10 and 11 of the Regulations arising out of a
failure of the Sellers to inform and consult with a
representative with regard to affected employees as defined
in the Regulations provided that the Buyer complied prior
to Completion with the requirements of Regulation 10(3) of
the Regulations; and
13.5.2 any termination of the employment of any Employee (or on
the resignation of any Employee prior to Completion
provided that such termination or resignation does not
result from any statement or act by or on behalf of the
Buyer prior to Completion.
13.6 If any transfer of a contract of employment of a person who is not
one of the Employees is deemed to have been effected between the
Buyer and such person as a result of the provisions of Regulation 5
of the Regulations:
13.6.1 the Buyer may, within 28 days of becoming aware of the
application of Regulation 5 to any such contract, give
notice to terminate such contract; and
13.6.2 the Sellers shall keep the Buyer fully indemnified against
all losses of any nature arising out of or in connection
with such termination and against any such sums payable to
or in relation to such person in respect of his employment
from Completion to the date of such termination.
13.7 The Buyer shall for a period of 12 months following Completion at
the Sellers' request and cost make available to the Sellers for
inspection and allow the Sellers to take copies of those documents
of the Businesses acquired by the Buyer which relate to the
Employees' employment prior to Completion.
13.8 The Sellers agree to fully indemnify and keep fully indemnified the
Buyer against any and all Losses which the Buyer may suffer
directly or indirectly arising out of:-
13.8.1 The non-performance by the Buyer of any duties,
liabilities, obligations or responsibilities which were
owed by the Sellers in respect of any of the Employees in
connection with the Pension Scheme prior to Completion and
which transfer to the Buyer on Completion by virtue of the
application of the Regulations; and/or
13.8.2 The non-payment by the Buyer of any payments, interest or
penalties on any loan or other arrangement under which the
Sellers have become or will become liable to repay any
money or other sums to the Pension Scheme and/or the
trustees of the Pension Scheme; and/or
13.8.3 Any other matter whatsoever in connection with the Pension
Scheme for which the Buyer becomes liable.
13.9 In the event actions, claims or proceedings are commenced against
the Sellers and/or the Buyer by the Employees or any of them or the
Excluded Employees, the Sellers and the Buyer shall use their best
endeavours to agree the course of action to be taken whether by way
of defence, settlement or compromise (or otherwise and howsoever)
of any such claim and each shall afford to the other assistance in
such course of action as shall be reasonable in the circumstances
including making available witnesses as appropriate for the
purpose. Each party shall be liable for such costs, claims,
demands, liabilities and expenses as may arise in accordance with
the provisions of this clause 13 or in absence of provision, shall
bear their own costs.
14 THE WARRANTIES
14.1 The Warrantors warrant and represent to the Buyer on the terms of
the Warranties only.
14.2 The Warranties are given subject to matters fully, fairly and
specifically disclosed in the Disclosure Letter.
14.3 The Sellers acknowledge that the Buyer has entered into this
agreement in reliance upon the Warranties.
14.4 Without restricting the rights of the Buyer or otherwise affecting
the ability of the Buyer to claim damages on any other basis
available to it in the event that the subject matter of any
Warranty Claim affects the value of the Assets, the Sellers hereby
undertake to keep the Buyer fully and effectively indemnified from
and against all and any diminution in the value of the Assets and
associated Losses suffered or incurred by the Buyer arising out of
or in connection with such breach.
14.5 Each of the Warranties is separate and independent. They are not
limited by reference to any other Warranty or part of this
agreement.
14.6 All Warranties which relate to the Warrantors' or the Sellers'
knowledge, information, belief or awareness are given by them after
having made all due and proper enquiries into the relevant matter.
For the avoidance of doubt this clause does not apply to clause
14.9.
14.7 The Sellers hereby agree with the Buyer to waive any rights which
they may have in respect of any misrepresentation or inaccuracy in,
or omission from, any information or advice supplied or given by
any of the Employees in connection with the giving of the
Warranties and the preparation of the Disclosure Letter.
14.8 Save in the case of fraud, wilful non-disclosure or wilful,
reckless or negligent misrepresentation by any of the Warrantors,
where there shall be no limit on the liability of the Warrantors,
the liability of the Warrantors in respect of any claim by the
Buyer in respect of any breach of the Warranties ("a Warranty
Claim") shall be limited as follows:
14.8.1 There shall be disregarded for all purposes any breach of
any of the Warranties in respect of which the amount which
the Buyer would otherwise (but for the provisions of this
clause 14.8.1) be entitled to recover would be less than
GBP2,500.
14.8.2 The Buyer shall not be entitled to recover any amount in
respect of a breach of the Warranties unless the amount
recoverable, when aggregated with all other amounts
recoverable for breach of the Warranties exceeds GBP25,000
in which event the Buyer shall be entitled to bring a
Warranty Claim in respect of the full amount and not just
the excess.
14.8.3 Subject to clause 14.8.4 below the total liability of the
Warrantors in respect of all and any Warranty Claims shall
not exceed the amount of the Price received by the Sellers
pursuant to this agreement.
14.8.4 The liability of the Warrantors for each Warranty Claim
pursuant to Xxxxxxxx 00.0, Xxxxxxxx 14.9 or Warranty 14.11
shall be limited to GBP100,000 provided that the Warrantors
are able to demonstrate to the reasonable satisfaction of
the Buyer that prior to Completion none of the Warrantors
were aware of any matter which would or might give rise to
a claim by the Buyer pursuant to Warranty 14.8 and/or
Warranty 14.9 and/or Warranty 14.11 following Completion.
14.8.5 The Warrantors shall have no liability in respect of any
Warranty Claim to the extent that:
14.8.5.1 a specific, identified provision or reserve in
respect of the liability or other matter giving
rise to the claim was made in the Accounts or the
Completion Statement;
14.8.5.2 the claim in question would not have arisen but
for a voluntary act or transaction (which could
reasonably have been avoided) carried out other
than in the ordinary course of business by the
Buyer after the date of this Agreement;
14.8.5.3 the claim in question arises or is increased as a
result of:
14.8.5.3.1 any act or omission of the Sellers
prior to Completion at the prior
written request or with the prior
written consent of the Buyer;
14.8.5.3.2 any act or omission compelled by law;
14.8.5.3.3 any increase in rates of Taxation or
a change in the law or published
practice of a Revenue Authority made
after the date of this agreement with
retrospective effect; or
14.8.5.3.4 the passing or coming into force of
any change in any enactment, law,
regulation, directive, requirement or
any practice of any government,
government body, or agency or
regulatory body (including but not
limited to statutory concessions of
the Inland Revenue) after the date of
this agreement whether or not having
a retrospective effect;
14.8.5.4 the Buyer has claimed a reduction in the Price
pursuant to clause 4.2 and/or clause 4.3 above.
14.8.6 If any matter comes to the notice of the Buyer which it is
aware will give rise to a liability under the Warranties
the Buyer shall:
14.8.6.1 as soon as reasonably practicable, give written
notice of that matter to the Sellers on behalf of
the Warrantors specifying sufficient details of
the matter to enable the Warrantors to identify
the nature of the potential liability and, so far
as is practicable, an estimate of the amount
likely to be claimed in respect of it;
14.8.6.2 not make any admission of liability, agreement or
compromise with any person, body or authority in
elation to the matter without the prior written
onsent of the Sellers on behalf of the
Warrantors, such consent not to be unreasonably
withheld or delayed;
14.8.6.3 so far as it is reasonably able, give the Sellers
on behalf of the Warrantors and their
professional advisers on reasonable notice and
during business hours access to the premises and
personnel of the Buyer and to any of the relevant
Assets within the power or control of the Buyer
so as to enable the Warrantors and their
professional advisors to consider the Warranty
Claim; and
14.8.6.4 subject to the Warrantors indemnifying the Buyer
to the Buyer's reasonable satisfaction against
any liability, costs, damages or expenses which
may be incurred or suffered, take such action as
the Sellers (on behalf of the Warrantors) may
reasonably request to avoid, dispute, resist,
compromise or defend any claims arising out of
the matter in question provided that if the Buyer
reasonably believes that if any such action will
prejudice the goodwill of its business, it may
refuse to take such action.
14.8.7 The Warrantors shall cease to have any liability for breach
of:
14.8.7.1 any of the Warranties relating to a matter other
than Taxation on the expiry of a period of 18
months from Completion; and
14.8.7.2 the Warranties relating to Taxation on the expiry
of the period of 7 years from Completion except
in either case in respect of a Warranty Claim of
which the Buyer gives notice to the Sellers on
behalf of the Warrantors before the expiry of
such period in accordance with clause 14.8.6.1.
The liability of the Warrantors in respect of any
Warranty Claim shall terminate absolutely if
proceedings in respect of it shall not have been
commenced by being both issued and served on the
Warrantors within six months of the giving of
notice of that Warranty Claim provided that if
notice of a Warranty Claim the subject matter of
which is contingent be given, such time period
shall not start to run until the subject matter
ceases to be contingent.
14.8.8 If the Buyer is or may be entitled to recover from some
other person any sum in respect of any matter giving rise
to a Warranty Claim, subject to its being fully indemnified
by the Warrantors to its reasonable satisfaction against
any liability, costs, damages or expenses which it may
incur or suffer in so doing, the Buyer shall procure that
all reasonable steps are taken to enforce recovery and, if
any sum is so recovered, then either the amount payable by
the Warrantors in respect of that Warranty Claim shall be
reduced by an amount equal to the sum recovered less the
Buyer's costs of such recovery or (if any amount shall
already have been paid by the Warrantors in respect of that
Warranty Claim) there shall be repaid to the relevant
Warrantor(s) an amount equal to the amount recovered or (if
less) the amount of such payment in each case less the
costs of the Buyer incurred in such recovery.
14.8.9 The amount of any Warranty Claim shall take into account
the amount of any reduction in or relief from taxation
arising by virtue of the loss or damage in respect of which
the Warranty Claim is made.
14.8.10 The Buyer shall not be entitled to recover damages in
respect of any Warranty Claim or otherwise obtain
reimbursement or restitution more than once in respect of
the same fact or subject matter unless the Buyer suffers
further loss from such circumstances following satisfaction
of the original claim, in which circumstances it may make a
Warranty Claim in accordance with the terms of this
agreement only in respect of the further loss.
14.9 The Buyer warrants to the Warrantors that:
14.9.1.1 it has full power to enter into and perform this
agreement and this agreement constitutes, and all
documents which are to be delivered by it at
Completion will when executed, constitute,
binding obligations on the Buyer; and
14.9.1.2 it has not entered into this agreement in
reliance on any warranties, representations,
assurances or information other than the
Warranties (as qualified by the Disclosure
Letter); and
14.9.1.3 it is not at the date of this agreement actually
aware that it has the right to make a Warranty
Claim.
14.10 Subject to the relevant trustee having complied fully with its
obligations under clause 14.11 below (and without prejudice to that
trustee's obligations under clause 14.11) the maximum amount for
which each Trustee is liable in respect of claims brought for
breach of warranty or under any guarantee shall not exceed:
14.10.1 in respect of the DT Trustees, the value for the time being
of the capital of the DT Trust;
14.10.2 in respect of the PF Trustees, the value for the time being
of the capital of the PF Trust; and
14.10.3 in respect of the LP Trustees, the value for the time being
of the capital of the LP Trust.
14.11 If during the period commencing with the date of this agreement and
ending on the expiry of a period of 24 months from Completion, as a
result of any distribution of the whole or any part of the capital
of any Trust Fund or the appointment of new trustees the same
ceases to be retained by the present Trustees then the present
Trustees shall procure that their successors as trustees or (as the
case may be) the recipient or recipients of the distributed capital
enter into a direct covenant with the Buyer and its successors in
title agreeing to be bound by the terms of this agreement as though
it or they were a party to this agreement (or enter into such
alternative arrangements for the protection of the Buyer or its
successors in title as are approved by the Buyer or its successors
in title (where appropriate)) in respect of the amount of the Trust
Fund for which it/they become(s) responsible as trustees or which
he/they receive(s) as recipient of the distributed capital. In
such circumstances the liability of the relevant present Trustees
shall thereafter be restricted to the net amount or value of such
part (if any) of the capital of the relevant Trust Fund as is
retained by them. However, if the relevant present Trustees fail
to procure the giving of such a direct covenant (or the making of
alternative arrangements) the liability of the present Trustees
shall in addition to extending to the net amount or value from time
to time (if any) of any retained capital extend also to the amount
or value (as at the date when it ceases to be retained by the
present Trustees) of any capital which ceases to be retained by
them following the appointment or distribution. The above
provisions in this clause 14.11 shall bind each Trustee in respect
of the trust of which it is a Trustee. Accordingly the expression
"Trust Fund" shall mean:
14.12 in the case of the DT Trustees, the DT Trust;
14.13 in the case of the PF Trustees, the PF Trust; and
14.14 in the case of the LP Trustees, the LP Trust.
15 CONTINUING OBLIGATIONS
15.1 The Sellers, Icon and the Trustees recognise the paramount
importance to the Buyer of the protection of the interests of the
Businesses which is reflected in the Price. Accordingly, they are
prepared to enter into the commitments contained in this clause to
ensure that such interests are properly protected.
15.2 For the period of 12 months after Completion the Sellers, Icon and
the Trustees will:
15.2.1 supply to the Buyer such information (other than any which
is public knowledge) as it may reasonably require in
connection with the Businesses; and
15.2.2 recommend and introduce the Buyer to customers, suppliers
and professional contacts of the Businesses.
15.3 For a period of 12 months after Completion the Sellers, Icon and
the Trustees will pass on promptly to the Buyer all enquiries and
orders relating to the Businesses which it receives.
15.4 The Sellers, Icon and the Trustees jointly and severally undertake
that they shall not for a period of 12 months after Completion
without the Buyer's prior written consent:
15.4.1 carry on or be engaged, concerned or interested directly or
indirectly in any of the Restricted Activities within the
United Kingdom, Eire and Germany;
15.4.2 be involved in any way with the businesses carried on by
Berkeley Products Limited, Expamet Building Products
Limited, Caradon Catnic Limited Blue Hawk, Wincrow Limited,
Xxxxxx Limited and Ancon CCL (Newmont PLC);
15.4.3 solicit or knowingly accept any orders, enquiries or
business in respect of any of the Restricted Activities
from any Customer;
15.4.4 divert away from the Businesses and/or the Buyer any
orders, enquiries or business in respect of the Restricted
Activities from any Customer;
15.4.5 procure or induce or endeavour to procure or induce any of
the Employees of the Businesses who are either engaged in a
senior or managerial capacity or who have had direct
contact with Customers in the course of their duties to
cease working for the Buyer; or
15.4.6 seek to interfere with the ongoing relationships between
the Businesses and/or the Buyer and its professional and
business contacts which have been established prior to
Completion.
15.5 The Sellers, Icon and the Trustees jointly and severally undertake
that they will not at any time after Completion without the Buyer's
prior written consent:
15.5.1 use the names "Furfix, Easy Arch, Ceejay and/or Panther"
or any name identical to or likely to be confused with a
name used in connection with the Businesses prior to
Completion (and for this purpose the expression "name"
includes a company or trading name);
15.5.2 hold themselves out as having any continuing connection
with the Businesses;
15.5.3 make any public announcement regarding the Businesses or
this transaction; or
15.5.4 disclose or use any trade secrets or confidential
information (other than any which is public knowledge)
relating to the Businesses which they have acquired prior
to Completion.
15.6 Except as specified in clause 15.7 the restrictions set out in
clauses 15.4 and 15.5 are to prevent each of the Sellers, Icon and
the Trustees from acting on their own behalf or jointly with or as
agent, manager, employee, consultant, director or shareholder of
any other person, firm, company or body.
15.7 Nothing in this clause is to prevent:
15.7.1 Xxxx Xxxx from properly performing his duties under his
Letter of Employment; or
15.7.2 the Trustees, the Sellers or Icon from holding for
investment purposes up to 5% of the issued share capital of
a company whose shares are dealt in or quoted on a
recognised stock exchange.
15.8 Each of the commitments contained in this clause 15 gives rise to a
separate obligation independent of the others.
15.9 The parties consider the commitments contained in this clause to be
reasonable as between themselves and the public interest as,
specifically with reference to the manufacture and marketing of
building products in the United Kingdom, any lesser commitment
would not give the Businesses an opportunity to succeed. If,
however, any of them are found by a court to be unreasonable and
unenforceable but would be reasonable and enforceable if certain
words were deleted, then the commitments shall apply with those
words deleted.
15.10 The Buyer may by written notice to the Sellers and/or Icon and/or
the Trustees vary by one or more stages the terms of any part of
this clause as it may apply to it by reducing (but not increasing):
15.10.1 the period during and/or the activities to which the
commitments are to apply; and/or
15.10.2 the geographical area to which the commitments relate.
16 RESTRICTIVE TRADE PRACTICES ACT
16.1 If any provision of this agreement or the Ancillary Documents is a
Registrable Restriction the following shall apply:
16.1.1 each of the parties shall either independently or together
with the other parties furnish this agreement and the
Ancillary Documents to the Director General of Fair Trading
within 3 months of the date of this agreement;
16.1.2 none of the parties will give effect to, or enforce or
purport to enforce any Registrable Restriction until the
day following the day on which the particulars of that
Registrable Restriction are furnished to the Director
General of Fair Trading in accordance with the provisions
of the Restrictive Trade Practices Xxx 0000.
16.2 The parties agree that if this agreement and the Ancillary
Documents are not furnished in accordance with the provisions of
clause 16.1.1, then any Registrable Restriction (whether contained
in this agreement or not) forming part of the arrangement of which
this agreement is itself part shall be void and no party shall seek
to enforce such Registrable Restriction.
17 GUARANTEE
17.1 In consideration of the Buyer entering into this agreement, the
Guarantors hereby jointly and severally guarantee to the Buyer the
due and punctual performance of all the obligations of the Sellers
arising under this agreement. In addition the Guarantors jointly
and severally agree that they will as principal obligor indemnify
the Buyer immediately on demand in respect of:
17.1.1 any sums which cannot be recovered from any one or more of
them under this guarantee; and
17.1.2 all Losses which it may suffer or incur as a result of
their failure to perform the Sellers' obligations under
this agreement pursuant to this guarantee provided that in
each case the Buyer has served notice on the Sellers
demanding performance or payment.
17.2 The obligations of the Guarantors under this guarantee and
indemnity shall not be affected in any way by any act, omission,
matter or thing whatsoever which but for this provision might
operate to release them from their obligations hereunder.
18 INDEPENDENT ACCOUNTANTS
18.1 If any difference of opinion arises between the parties or their
respective accountants, in relation to any provision of this
agreement in respect of which a party is expressed to have the
right to refer such matter for determination by an independent firm
of accountants pursuant to this clause 18, subject to any time
period referred to in the relevant provision during which the
parties must seek to resolve the dispute before referring it to an
independent firm having expired, either party may refer the matter
to an independent firm of accountants for resolution as follows:
18.1.1 the independent firm shall be jointly agreed by the parties
or, if no agreement is reached within 10 days after either
party notifies the other that it wishes to appoint a firm
under this clause, shall be appointed at the request of
either party by the President of the Institute of Chartered
Accountants in England and Wales;
18.1.2 the independent firm shall be requested to resolve the
matter in dispute applying the terms of this agreement;
18.1.3 the determination of the independent firm shall be final
and binding on both parties in the absence of manifest
error;
18.1.4 the costs of the independent firm shall be shared by the
parties equally.
19 VALUE ADDED TAX
19.1 References in this clause 19 to "sections" and "Schedules" are to
sections of and Schedules to the VATA.
19.2 The Buyer warrants to the Sellers that the Buyer is a taxable
person within the meaning of section 3 with registration number
GB642822150 and that the Buyer intends to use the Assets in
carrying on the same kind of business as that carried on by the
Sellers.
19.3 The Sellers and the Buyer shall use all reasonable endeavours to
procure that the provisions of section 49 and Article 5 of the
Value Added Tax Act (Special Provisions) Order 1995 apply to the
sale and purchase of the Assets under this agreement and that no
VAT shall be chargeable in respect thereof.
19.4 If any VAT becomes chargeable in respect of the sale of any of the
Assets under this agreement, the amount so chargeable shall be paid
by the Buyer to the Sellers on written demand two working days
prior to the date on which the Sellers are liable to account for
the same to HM Customs & Excise, provided that the Sellers have
delivered a valid VAT invoice to the Buyer when requiring payment
of VAT from the Buyer under this clause.
19.5 The Sellers warrant to the Buyer that they have not made any
election under paragraph 2 of Schedule 10 in respect of the
Premises
20 NOTICES
20.1 Any notice given under this agreement is to be in writing signed by
or on behalf of the party giving it. The notice may be served by
leaving it at or sending it by prepaid first class post to the
parties at the appropriate address set out above or such other
address within the United Kingdom as may be notified by any party
to the others from time to time.
20.2 Any notice so served is deemed to have been received:
20.2.1 in the case of personal service, on delivery; and
20.2.2 in the case of pre-paid first class post, 48 hours from the
date of posting,
except that where under the provisions of clause 20.2.2 a notice
would be deemed to be received on a day which is not a Working Day,
the notice shall instead be deemed to be received at 9.00 am on the
next Working Day.
20.3 For notices sent by post it will be sufficient in proving service
to establish that the envelope containing the notice was properly
stamped, addressed and posted.
21 COSTS
21.1 Each of the parties is to be responsible for its own costs relating
to the preparation, negotiation and execution of this agreement.
22 CONFIDENTIALITY
22.1 Except to the extent required by law no announcement concerning the
terms of or any matters contemplated by this agreement or any
matter ancillary to it shall be made by or on behalf of any party
to the agreement except with the prior written approval of the
others.
23 COUNTERPARTS
23.1 This agreement may be executed in any number of counterparts and by
the several parties to it on separate counterparts, each of which
when so executed shall constitute one document.
24 REMEDIES AND WAIVER
24.1 The rights, powers and remedies provided in this agreement are
cumulative and not exclusive of any rights, powers and remedies
provided by law.
24.2 Unless expressly stated otherwise, all obligations of the Sellers
and the Guarantors under this agreement are joint and several
obligations.
24.3 No delay or omission of the Buyer in exercising any of its rights,
powers or remedies pursuant to this agreement shall operate to
impair or be construed as a waiver of such right, power or remedy.
No single or partial exercise or non-exercise of any right, power
or remedy shall in any circumstances preclude any other or further
exercise of such right, power or remedy or the exercise of any
other right, power or remedy.
24.4 For the avoidance of doubt the Buyer shall be entitled to set-off
any amounts properly due to it pursuant to this agreement against
any amount due from it to the Sellers. In addition while a
Warranty Claim remains outstanding the Buyer shall be entitled to
withhold any amount due from it to the Sellers pending resolution
of such claim.
24.5 Any waiver of a breach or default of the terms of this agreement
shall not constitute a waiver of any subsequent breach or default.
25 ENTIRE AGREEMENT
25.1 This agreement (together with the various documents referred to in
it) constitutes the entire agreement between the parties relating
to the sale and purchase of the Businesses and the Assets. No
variation of this agreement shall be effective unless it is in
writing and signed by or on behalf of all of the parties.
25.2 Except to the extent repeated in this agreement or any of the
documents referred to in it:
25.2.1 this agreement and those documents supersede and extinguish
any pre-contractual statements;
25.2.2 each party acknowledges that in entering into this
agreement and those documents it places no reliance on any
pre-contractual statement.
25.3 Except in the case of fraud, no party shall have any right of
action against any other party to this agreement arising out of or
in connection with any pre-contractual statement.
26 FURTHER ASSURANCE
26.1 All provisions of this agreement which have not been performed in
full at Completion are to remain in full force and effect
notwithstanding Completion.
26.2 The Sellers, Icon and the Trustees (at their own expense) shall do
all acts and execute all deeds and documents reasonably required
by the Buyer to validly transfer the Businesses and the Assets to
the Buyer and to assure to it the rights agreed to be granted to it
under this agreement.
27 BENEFIT AND BURDEN
27.1 This agreement is binding on and shall ensure for the benefit of
the successors-in-title and personal representatives of the
parties. In the case of the Buyer this includes any successor-in-
title to the Businesses or a material and substantial part of it.
27.2 The Buyer may assign all and any of its rights under this
agreement.
28 GOVERNING LAW AND SUBMISSION TO JURISDICTION
28.1 This agreement shall be governed by and construed in accordance
with English law and the parties hereto submit to the non-exclusive
jurisdiction of the English courts for the purpose of enforcing any
claim arising hereunder.
IN WITNESS of which this document has been executed and, on the date set
out above, delivered as a deed.
SCHEDULE 1
WARRANTIES
The Warrantors give the following warranties and representations:
1 Information
1.1 All information contained in or referred to in the Disclosure
Letter is true, complete and accurate in all respects. The Sellers
are not aware of any fact or matter not disclosed in the Disclosure
Letter which either:
1.1.1 renders any such information incomplete, untrue, incorrect
or misleading; or
1.1.2 might reasonably affect the willingness of a buyer to buy
the Assets or the Businesses on the terms of this
agreement.
1.2 The details contained in the recitals and Schedule 2 to Schedule 14
(inclusive) are true and accurate in all respects and are not
misleading in any respect.
1.3 The Warrantors are not aware of any fact or matter not disclosed in
writing to the Buyer which in their honest and reasonable opinion
may render any such information (or other information, referred to
or opinions expressed in such documentation) untrue, or incorrect
in any material respect.
1.4 All opinions and expectations expressed in the Forecast Information
are considered by each of the Warrantors to be reasonable and based
on all relevant assumptions. The assumptions used are considered
by the Warrantors to be reasonable and realistic in all
circumstances. None of the Warrantors are aware of any fact or
matter not disclosed in writing to the Buyer which in their honest
and reasonable opinion may render any such opinions or expectations
misleading in any material respect.
1.5 The Forecast Information was prepared in good faith after due and
careful enquiry and the Warrantors believe that the projections and
forecasts in the Forecast Information represent a realistic,
reasonable and achievable plan in relation to the future operation
of the business of the Buyer (including the Businesses).
2 Capacity
2.1 The Sellers have been duly incorporated and is validly existing
and no order has been made or petition presented or resolution
passed for the winding up of the Sellers or for an administration
order in respect of the Sellers and no distress, execution or other
process has been levied on any of its assets. The Sellers are not
insolvent or unable to pay its debts for the purposes of Section
123 of the Insolvency Xxx 0000 and no administrative receiver,
receiver or liquidator has been appointed by any person of its
business or assets or any part thereof and no power to make any
such appointment has arisen.
2.2 The execution and delivery of this agreement by the Sellers has
been duly authorised and approved by its board of directors and
each obligation expressed to be on the part of the Sellers will
upon execution constitute a legally binding obligation on the part
of the Sellers.
2.3 The execution and delivery of and the performance by the Sellers of
their obligations pursuant to this agreement will not conflict
with, result in a breach of or give rise to a right of termination
of any obligation pursuant to:
2.3.1 the memorandum or articles of association of the Sellers;
2.3.2 any contract or agreement to which the Sellers are a party
or subject; or
2.3.3 any order, judgement, ordinance, regulation or other
restriction imposed by any regulatory body or court having
jurisdiction over the Sellers.
3 The Accounts
3.1 The Accounts:
3.1.1 comply with the provisions of all relevant statutes;
3.1.2 have been prepared in accordance with UK generally accepted
accountancy principles and practices and on a basis
consistent with previous years;
3.1.3 fully and specifically disclose and make full provision or
reserve for all actual liabilities of the Sellers;
3.1.4 make full provision for or note (in accordance with UK
generally accepted accountancy principles and practices)
all capital commitments and contingent, unquantified or
disputed liabilities of the Sellers and make provisions
reasonably regarded as adequate for all bad and doubtful
debts of the Sellers and stock valuation and fixed asset
impairment provision; and
3.1.5 show a true and fair view of the state of affairs of the
Sellers and of their results and profits and cash flow for
the accounting period ending on the Balance Sheet Date.
3.2 In the Accounts:
3.2.1 depreciation of the fixed assets of the Sellers have been
made at a rate sufficient to write down the value of such
assets to nil not later than the end of their useful
working lives;
3.2.2 slow moving stock has been written down appropriately and
unrecoverable work in progress and redundant and obsolete
stock has been wholly written off and the value attributed
to the remaining stock did not exceed the lower of cost or
net realisable value at the Balance Sheet Date on a going
concern basis.
3.3 The bases and policies of accounting of the Sellers (including
depreciation, bad debt provisioning, and valuation of stock and
work in progress) adopted for the purpose of preparing the Accounts
are the same as those adopted for the purpose of preparing the
audited accounts of the Sellers for each of the last three
preceding accounting periods.
3.4 The results shown by the Accounts were not materially affected by
transactions of a nature not usually undertaken by the Sellers,
circumstances of an extraordinary, exceptional or non-recurring
nature or any other matter which has rendered profits or losses
unusually high or low.
3.5 The Businesses have no liabilities, obligations or contingencies of
any kind, whether absolute, contingent, unaccrued, asserted or
unasserted, or otherwise, except liabilities, obligations or
contingencies that were in existence on the Balance Sheet Date and
are fully accrued or reserved in the Accounts, or that have been
incurred after such date in the ordinary course of the Businesses.
4 Events since the Balance Sheet Date
4.1 Since the Balance Sheet Date:
4.1.1 the Businesses have been carried on in the ordinary and
usual course so as to maintain the same as a going concern
without any interruption or alteration in, their nature,
scope or manner;
4.1.2 the Sellers have not disposed of any assets or assumed any
liabilities (including, but not limited to, contingent,
unquantified or disputed liabilities) otherwise than in the
ordinary and usual course of carrying on the Businesses and
consistent with past practice;
4.1.3 the Businesses have not been adversely affected by any
abnormal factor not affecting similar businesses;
4.1.4 there has been no material deterioration in the customer
relations of the Businessesor the financial position or
prospects of the Businesses;
4.1.5 there has been no change in the terms of employment
including any increase in the rate of the remuneration of
or change to the benefits received by the Employees;
4.1.6 the Sellers have continued to pay their creditors in the
ordinary course of business; and
4.1.7 no property of the Sellers has been transferred, leased,
mortgaged, sold, encumbered or made subject to any dealing,
option or agreement except in the ordinary and usual course
of the Businesses.
5 Taxation
5.1 The Sellers are not involved in any dispute with any tax authority
concerning any matter likely to affect the conduct of the
Businesses after Completion or any of the Assets and no such
dispute is likely.
5.2 The Sellers have taken no action which would adversely affect the
ability of the Buyer to claim capital allowance under Part I of the
Capital Allowances Xxx 0000.
5.3 The Sellers have properly operated the PAYE system and accounted
for national insurance contributions as required by law, and the
Sellers have complied with their reporting obligations to the
Inland Revenue, in respect of any benefits provided to any of the
Employees.
5.4 None of the Assets are capital items in respect of which the Buyer
may be required to make input tax adjustments under Part XV of the
Value Added Tax Regulations 1995.
5.5 All VAT payable upon the importation of goods, and all customs and
excise duties payable in respect of the Assets have been paid in
full, and none of the Assets is liable to confiscation or
forfeiture.
5.6 All documents (other than those which have ceased to have any legal
effect) which are material to the title to any of the Assets have
been duly stamped.
5.7 There is no unsatisfied liability to capital transfer tax or
inheritance tax attached or attributable to any of the Assets and
none of the Assets are, or are likely to be, subject to an Inland
Revenue charge as mentioned in Section 237 of the Inheritance Tax
Xxx 0000.
5.8 No person is liable to capital transfer tax or inheritance tax
attributable to the value of any of the Assets and in consequence
no person has the power under Section 212 of the Inheritance Tax
Xxx 0000 to raise the amount of such tax by the sale or mortgage of
or by a charge on any of the Assets.
6 Legislation and Licences
6.1 The Sellers have conducted the Businesses in all respects in
accordance with all applicable laws and regulations. There has
been no violation of, or default with respect to, any statute,
regulation, directive, order, decree or judgement of any court or
any governmental agency of the United Kingdom or any foreign
country which could have an adverse effect upon the Assets or the
Businesses.
6.2 All necessary licences, consents, permits and authorities (public
and private) have been obtained by the Sellers to enable the
Businesses to be carried on effectively in the places and in the
manner in which it is now carried on including, without limitation,
the Data Protection Xxx 0000 and the Consumer Credit Xxx 0000. All
such licences, consents, permits and authorities are valid and
subsisting. The Sellers know of no reason why any of them should
be suspended, cancelled or revoked.
7 Litigation
7.1 Neither the Sellers nor any person for whose acts or defaults the
Sellers may be vicariously liable is engaged, whether as plaintiff
or defendant or otherwise, in any legal action, proceedings or
arbitration and is not being prosecuted for any criminal offence in
connection with the Assets or the Businesses. There are no
circumstances of which the Sellers are aware that are likely to
lead to any such claim, legal action, proceedings, arbitration or
prosecution.
7.2 The Sellers are not the subject of any official investigation or
inquiry and are not aware of any facts which are likely to give
rise to any such investigation or inquiry.
8 The Assets
8.1 The Sellers have good and marketable title to all the Assets free
from any encumbrances, other third party rights, hire or hire
purchase agreements, credit sale agreements, agreements for payment
on deferred terms or bills of sale and any rights of any person to
call for any of the same. All of the Assets are in the possession
or under the control of the Sellers. The Assets comprise all of
the assets necessary to carry on the Businesses as carried on by
the Sellers.
8.2 All of the stock and work in progress of the Businesses is in good
condition, of merchantable quality and capable of being sold in the
ordinary course of business to a purchaser at the Sellers' full
list prices less the rebates, discounts and allowances normally
made in the ordinary course of business by the Sellers and set out
in the Disclosure Letter.
8.3 The levels of stocks of raw materials, components, spare parts,
packaging and other materials and finished products for use or sale
in the Businesses are not materially different from the levels of
such stocks at the same time in each of the last three years.
8.4 Neither the construction, positioning or use of any of the Assets
themselves contravene any relevant provision of any legislation,
regulation or other requirement having the force of law.
8.5 All of the Assets are in good repair having regard to their age and
not subject to breakdown beyond the normal level of breakdown for
such types of assets, are capable of being used for the purposes
for which they were designed or acquired by the Sellers, and have
throughout their period of ownership by the Sellers been maintained
and serviced in accordance with their manufacturers'
recommendations or under the supervision of any appropriately
qualified person.
8.6 The Assets comprise all the fixed and loose plant, machinery,
furniture, tooling, equipment, vehicles and other moveable assets
used in the carrying on of the Businesses.
8.7 The Debts will be collectible in full within 90 days after the
Completion Date subject to the Buyer using its reasonable
endeavours to collect the same.
9 The Purchased Contracts
9.1 The Purchased Contracts do not include:
9.1.1 any contract for the purchase or use by the Sellers of
materials, supplies or equipment which is in excess of the
requirements of the Businesses for its normal operating
purposes or at prices higher than current market prices;
9.1.2 any forward sale commitment at prices which would not
produce a gross profit on completion of the sale;
9.1.3 any contract for sale of goods or supply of services by the
Sellers which contains warranties or conditions in favour
of the purchaser broader in scope than warranties and
conditions implied by law or as specified in the Sellers'
standard conditions of sale (a true copy of which is
attached to the Disclosure Letter) or incorporates
discounts, commissions or prices calculated otherwise than
in accordance with the Sellers' standard pricing structure,
which is described in the Disclosure Letter;
9.1.4 any unusual or onerous contract nor any contract which
cannot be terminated without penalty or compensation on
less than 12 months' notice;
9.1.5 any contract restricting the Sellers' freedom of action in
relation to the normal activities of the Businesses;
9.1.6 any contract not made in the ordinary and usual course of
the Businesses;
9.1.7 any agency, distribution, marketing, purchasing,
franchising or licensing agreement.
9.2 Each of the Purchased Contracts is freely assignable to the Buyer
as contemplated by this agreement.
9.3 Each of the Purchased Contracts is in full force and effect and
constitutes a legal, valid, binding and enforceable obligation of
every party thereto, and none of the terms of the Purchased
Contracts or compliance with any of them has been waived.
9.4 The execution, delivery and performance of this agreement will not
constitute a breach, cancellation or termination of any of the
terms and conditions of or constitute a default under any of the
Purchased Contracts.
9.5 With respect to each of the Purchased Contracts:
9.5.1 the Sellers have duly performed and complied in all
material respects with each of their obligations
thereunder;
9.5.2 there has been no delay, negligence or other default on the
part of the Sellers and no event has occurred which, with
the giving of notice or passage of time, may constitute a
default thereunder;
9.5.3 the Sellers are under no obligation which cannot readily be
fulfilled, performed or discharged by them on time and
without undue or unusual expenditure or effort;
9.5.4 the Sellers have the technical and other capabilities and
the human and material resources to enable them to fulfil,
perform and discharge all their outstanding obligations in
the ordinary course of the Businesses and without realising
a loss on completion of performance;
9.5.5 there are no grounds for rescission, avoidance, repudiation
or termination and the Sellers have not received any notice
of termination; and
9.5.6 so far as the Sellers are aware, none of the other parties
thereto is in default thereunder.
9.6 None of the Purchased Contracts is one in which Icon plc is in any
way directly interested.
9.7 Other than the Purchased Contracts, there are no contracts material
to the Businesses.
9.8 There are no quotations or tenders of the Sellers which, if
accepted by some third party, might lead to a legally enforceable
agreement of the Sellers in relation to the Businesses.
10 Products
10.1 The Sellers have not delivered any goods in the course of the
Businesses which have been defective or in any way failed to comply
with the terms of sale thereof or with the requirements of law.
The Sellers have not provided any services in the course of the
Businesses which have been provided in a negligent manner or in any
other manner which would entitle the recipient of such services to
claim damages against the Sellers.
10.2 There is no defect in the design, construction or methods of
manufacture of the goods sold in the course of the Businesses which
would render such goods unsafe or adversely affect their
merchantability and fitness for purpose.
10.3 There has been no claim in respect of personal injury or damage to
property arising from use of any goods supplied in the course of
the Businesses during the period of six years prior to the
Completion Date.
10.4 During the period of six years preceding the Completion Date, there
have not been any significant returns by customers, or recalls by
the Sellers, in respect of goods supplied in the course of the
Businesses. There are no outstanding claims or proceedings that
indicate a repeated pattern of defects in goods, or failure of
goods to meet acceptable safety or other standards over their
useful life. All goods advertised or held out by the Sellers as
listed or approved by any safety or rating agency anywhere in the
world, comply fully with the requirements of such agencies, and no
condition or event has occurred that would invalidate such listing
or approval and no such listing or approval has been or is
threatened to be cancelled or withdrawn.
10.5 The Sellers have adequate and valid insurance against product
liability risks in relation to the Businesses and such insurance
shall remain in force following the Completion Date.
11 Trading and associated matters
11.1 No action or transaction has been effected in consequence of which:
11.1.1 the Buyer will become liable to refund in whole or in part
any investment or other grant relating to the Assets or the
Businesses; and/or
11.1.2 any such grant for which application has been made by it
will not or may not be paid or may be reduced.
11.2 The Sellers do not carry on the Businesses under licence or
otherwise than as principal, and no agent, distributor,
representative, supplier or other party (not being an employee) is
entitled to any fixed or varying payment or credit in connection
with the Businesses.
11.3 The Sellers do not use on their letterheads, brochures, sales
literature or vehicles or otherwise carry on the Businesses under
names other than their corporate names.
11.4 The Businesses do not use any assets which are owned by the present
shareholders or directors of the Sellers, Icon plc, or any
connected persons (as defined in section 839 of the Taxes Act).
11.5 The Sellers do not have outstanding in connection with the
Businesses any of the following:
11.5.1 any guarantee, indemnity, security or undertaking (whether
or not legally binding) in favour of any customer or
supplier of the Businesses;
11.5.2 any lien or pledge or any obligation (including, but not
limited to, a conditional obligation) to create a lien or
pledge; or
11.6 any indebtedness other than indebtedness arising in the ordinary
course of Businesses.Other than the Creditors, there are no
suppliers to the Businesses who account for more than 5% of their
purchases.
11.7 Other than the customers listed in Schedule 11, there are no
customers of the Businesses who account for more than 5% of their
purchases.
11.8 No customer has given notice that it no longer intends to deal with
the Sellers or indicated an intention to materially reduce orders
placed with the Sellers. The Sellers are not aware of any fact,
matter or circumstance which may lead to customers or suppliers of
the Businesses refusing to deal with the Buyer after Completion.
11.9 No supplier to the Sellers is entitled to charge interest in
respect of any monies owed to it by the Sellers. The Sellers have
no liability (whether actual or contingent) for unpaid interest in
respect of the late payment of any invoice or other liability paid
or settled prior to Completion.
11.10 None of the other operations or businesses of the Sellers in any
way compete with or have in any way affected the Businesses or
their trading results or performance.
11.11 None of the Sellers' records systems, controls data or information
is recorded, stored, maintained, operated or otherwise dependent
upon or held by any means (including, but not limited to, any
electronic, mechanical or photographic process whether computerised
or not) which are not under the exclusive ownership and direct
control of the Sellers. There has been no breach of any service or
maintenance contract relevant to any such mechanical, electronic
process or equipment whereby any person or body providing services
or maintenance thereunder may have the right to terminate such
service or maintenance contract.
11.12 The books and records of the Businesses accurately present and
reflect all transactions entered into in relation to the
Businesses, and have been properly maintained, in accordance with
generally accepted accounting principles and applicable legislation
in the United Kingdom. Such books and records are up to date and
complete.
12 Employees
12.1 The Sellers have complied with all obligations imposed by statute,
regulation, contract and common law relating to the Employees.
They have maintained adequate and suitable records regarding the
service of the Employees.
12.2 There is not outstanding any agreement or arrangement for the
provision of either retirement or other benefits or relevant
benefits (as defined in section 591(1) of the Taxes Act) for the
Employees nor is there in existence any obligation to them with
regard to retirement, death or disability.
12.3 There are no agreements or arrangements for profit sharing or for
payment of any bonuses or incentive payments to the Employees.
12.4 The details of the Employees contained in Schedule 8 are true,
accurate and complete. There are no other employees engaged in
the Businesses. Schedule 8 contains full particulars of all
remuneration payable and other benefits provided or which the
Sellers are bound to provide (whether now or in the future) to each
of the Employees including without limitation, all profit sharing,
incentive and bonus arrangements to which the Sellers are a party,
whether legally binding or not. There have been no changes in the
rates of such remuneration or the terms and conditions of service
of the Employees during the 12 months prior to Completion.
12.5 There is no fact, matter or circumstance entitling any of the
Employees to terminate his contract of employment whether as a
result of this agreement or otherwise. The Sellers have not
received any notice of termination from any of the Employees in
respect of their contracts of employment.
12.6 The Employees have been paid all sums and have received all
benefits (whether or not legally binding) to which they are
entitled.
12.7 The Sellers have complied with all obligations with respect to
statutory sick pay as defined in the Social Security Contributions
and Benefit Xxx 0000.
12.8 The Sellers have not recognised or done any act which might be
construed as recognition of a trade union and the Sellers are no
party to any collective agreement with any trade union, staff
association or body or workers in respect of the Businesses.
12.9 There is no liability on the part of the Sellers to pay
compensation or make payment under:
12.9.1 the Employment Rights Xxx 0000;
12.9.2 the Sex Discrimination Xxx 0000;
12.9.3 the Race Relations Xxx 0000;
12.9.4 the Disability Discrimination Xxx 0000;
12.9.5 the Trade Union and Labour Relations (Consolidation) Xxx
0000;
12.9.6 the Trade Union Reform and Employment Rights Xxx 0000;
12.9.7 the Working Time Regulations 1998;
12.10 The Sellers have received no notice of any claim of any nature
whatsoever from any of the Employees. The Sellers are not aware of
any fact, matter or circumstance which may give rise to such a
claim.
12.11 All National Insurance and sums payable by the Sellers to the
Inland Revenue under the PAYE system have been duly and properly
paid. Proper records have been maintained in respect of all such
matters. The Sellers have deducted all tax required by law to be
deducted from all other payments to or treated as made to employees
and ex-employees of the Sellers. The Sellers have accounted to the
Inland Revenue for all tax so deducted together with all tax
chargeable on benefits provided for its employees and ex-employees.
13 Insurances
13.1 The Disclosure Letter contains full particulars of all insurance
policies effected by the Sellers in relation to the Assets and the
Businesses.
13.2 Nothing has been done or omitted to be done and there are no
special circumstances whereby:
13.2.1 any of the insurance policies has or may become void or
voidable; or
13.2.2 the premiums due from the Sellers may be increased.
13.3 There is no claim outstanding under any policy of insurance nor are
the Sellers aware of any circumstances likely to give rise to such
a claim.
13.4 The Sellers have never received a report or recommendation from its
insurance advisers which has not been implemented in full.
14 Intellectual Property and computers
14.1 Full and accurate details of all Intellectual Property registered
or applied for registration are set out in Schedule 5. All fees
and duties due and payable in relation to those registrations or
applications have been paid, and there are no steps required to be
taken in relation to them which have not been taken within the
required time.
14.2 Complete copies of the terms of all licences of third party
intellectual property or of Intellectual Property licensed to third
parties are annexed to the Disclosure Letter.
14.3 The Sellers are either the sole beneficial owner of each item of
Intellectual Property used in the Businesses including the Ceejay
Patent and able to transfer with full title guarantee or are
otherwise entitled to use the same on the terms disclosed in the
Disclosure Letter.
14.4 The Intellectual Property used in the Businesses is valid and
subsisting and is not subject to any claims for total or partial
revocation or removal, entitlement or compensation under sections
40-43 of the Patents Xxx 0000, and there are no circumstances which
may give rise to such a claim.
14.5 All Business Information used in the Businesses is in the
possession of the Sellers, and is not subject to any
confidentiality or other agreement or to any duty which restricts
the free use or disclosure of any of that Business Information.
14.6 Except as set out in the Disclosure Letter, neither the Sellers nor
Icon has granted, or is obliged to grant, any licence, sub-licence,
option, charge or assignment in respect of any Group Intellectual
Property or third party Intellectual Property.
14.7 Except as set out in the Disclosure Letter, no confidential
Business Information in it's the Sellers' possession has been
disclosed to any person and neither of the Sellers are obliged to
disclose such information.
14.8 Neither the Sellers nor Icon nor any party with which it has
contracted is in breach of:
14.8.1 any licence, sub-licence, option, charge or assignment
granted to or by it in respect of any Intellectual Property
or third party Intellectual Property; or
14.8.2 any agreement under which any Business Information was or
is to be made available to it, and the transactions
contemplated by this agreement will not result in any such
breach or otherwise result in any such agreement being
subject to termination.
14.9 The processes and methods employed, the services provided, the
businesses conducted and the products manufactured, or used in the
Businesses within the last 6 years do not infringe and have not
during that period infringed the rights of any other person in any
Intellectual Property or Business Information.
14.10 Neither the Sellers, Icon nor the Trustees have received any
notification that the processes and methods employed, the services
provided, the businesses conducted and the products manufacture or
used in the Businesses within the last 6 years infringe or have
during that period infringed the rights of any other person in any
Intellectual Property or Business Information.
14.11 There is no unauthorised use or infringement by any person of any
of the Intellectual Property or Confidential Business Information
used in the Businesses, nor has any such unauthorised use or
infringement occurred during the period of 6 years prior to this
agreement.
14.12 All computer hardware, software, networking or other information
technology used in the Businesses are owned by the Sellers.
14.13 Full and accurate details of the Systems and all agreements or
arrangements relating to the maintenance and support (including,
but not limited to, escrow agreements relating to the deposit of
source codes), security, disaster recovery management and
utilisation (including, but not limited to, facilities management
and computer bureau services agreements) of the Systems have been
disclosed.
14.14 The Sellers have exclusive ownership of and direct control over all
means (including, but not limited to, electronic, mechanical or
photographic process, whether computerised or not, and all means of
access to and from it) by which all of the records, systems,
controls, data and information used by the Businesses are recorded,
stored, maintained, operated or held or on which they are wholly
or partly dependent.
14.15 There are no material defects relating to the Systems and the
Systems have the functionality and performance necessary to fulfil
the present and proposed requirements of the Businesses.
14.16 The Systems are currently able to and will without prompting make
any adjustments necessary to take account of any change to date
formats occurring at the end of the twentieth century and in all
respects are fully Millennium Compliant.
14.17 The Systems have been tested for all known viruses (including, but
not limited to, bugs, worms, logic bombs, trojan horses or any
self-propagating or other program) that may infect or cause damage
to the Systems or erase the software or data contained in the
Systems, using recognised and up-to-date virus detection programs.
14.18 Neither the Sellers nor Icon have disclosed to any third party any
source code or algorithms relating to any software used in the
Businesses.
14.19 If required to do so under the Data Protection Xxx 0000, each
company in the Sellers' Group has duly registered as a data user
and has complied with the data protection principles as set out in
that Act in respect of the Businesses.
15 Anti-trust
15.1 No agreement or arrangement to which the Sellers are a party in
connection with the Businesses including, without limitation, the
Purchased Contracts:
15.1.1 is or requires to be registered in accordance with the
provisions of the Restrictive Trade Practices Act 1976 or
contravenes the provisions of the Resale Prices Xxx 0000
and the Sellers are not in connection with the Businesses
in default under or in contravention of the provisions of
any of those Acts;
15.1.2 is, by virtue of its terms or by virtue of any practice for
the time being carried on in connection with it, a Consumer
Trade Practice within the meaning of section 13 of the Fair
Trading Act 1973 or susceptible to or under reference to
the Consumer Protection Advisory Committee or the subject
matter of a report to the Secretary of State or an Order by
the Secretary of State under the provisions of Part II of
that Act;
15.1.3 infringes Article 81 of the Treaty establishing the
European Economic Community or constitutes an abuse of
dominant position contrary to Article 82 of that treaty or
infringes any regulation or other enactment giving effect
to either Article; or
15.1.4 infringes Articles 65 or 66 of the Treaty establishing the
European Coal and Steel Community or is such as to justify
recommendations under Article 66(7) of that treaty or
infringes any decision or other enactment giving effect to
either Article.
15.2 The Sellers have not pursued and are not pursuing any course of
conduct which amounts to an anti-competitive practice within the
meaning of section 2(1) of the Competition Act 1999 and is not
subject to or under notice of any investigation, report or order
under that Act.
16 Pensions
16.1 The Sellers neither operate nor are a participant in any pension
arrangements other than the Pension Scheme and the Personal Pension
Arrangements. They have no legal or moral obligation to provide
Relevant Benents other than under the Pension Scheme and the
Personal Pension Arrangements. Further, the Sellers do not
operate or participate in or have any legal or moral obligation to
contribute to any permanent health insurance, private health
provision, accident benefit or any other ancillary schemes.
16.2 Apart from earnings related lump sum death-in-service benefits, the
Personal Pension Arrangements provide only money purchase benefits
within the meaning of Section 181 PSA 1993 and the Sellers have not
given any promise or assurance (oral or written) to any person who
benefits from the Personal Pension Arrangements that his benefits
will be calculated wholly or partly by reference to any person's
remuneration or will be (approximately or exactly) any particular
amount.
16.3 The Sellers have fulfilled all their obligations under the Personal
Pension Arrangements.
16.4 There are no insurance premiums in respect of the Personal Pension
Arrangements whether payable by the Sellers or by the trustees or
administrator of the Pension Scheme).
16.5 There are no lump sum death-in-service benefits payable under the
Pension Scheme or the Personal Pension Arrangements.
16.6 So far as the Sellers are aware there are no claims, disputes or
enquiries outstanding in connection with the Personal Pension
Arrangements. The Sellers are not aware of any circumstances which
may give rise to any claim, dispute or enquiry.
16.7 All information about the Personal Pension Arrangements and their
members which has been supplied to the Buyer and/or its advisers is
true, complete, accurate and up-to-date and contains no material
omission.
16.8 The Sellers have given no undertaking or assurance about the
introduction, continuance or improvement of any pension rights or
entitlements which the Buyer would have to implement in accordance
with good industrial relations practice, whether or not it is or
was legally obliged to do so.
16.9 The Sellers do not participate in any Retirement Benefit Scheme
established under or regulated by any jurisdiction outside the
United Kingdom.
17 Trustee Warranties
17.1 The DT Trust is duly constituted and a true and accurate copy of
all documents evidencing its terms is annexed to the Disclosure
Letter. It has not been amended or changed in any way since its
original execution.
17.2 The DT Trustees are duly appointed as such and are the only
trustees of the DT Trust.
17.3 The DT Trustees have full power and authority to enter into this
agreement and all other documents referred to in it and to honour
in full (without any xxxxxx delay or third party consents) all of
their obligations under this agreement.
17.4 No person (whether a beneficiary or not) has any right to call upon
the DT Trustees to distribute any part of the capital of the DT
Trust within the warranty limitation period referred to in clause
14.11.
17.5 The DT Trustees are not subject to any restriction which might
prevent them from validly contracting with the Buyer on the terms
of this agreement.
17.6 The Warranties set out in paragraph 17.1 to 17.5 above (inclusive)
shall be repeated for each of the PF Trust and the PF Trustees and
the LP Trust and LP Trustees and references to the "DT Trust" and
to the "DT Trustees" shall be references to the "PF Trust", the "PF
Trustees" and the "LP Trust" and the "LP Trustees" as appropriate.
SCHEDULE 2
EA ASSETS
Asset Apportionment of Consideration
Claims GBP1.
Goodwill GBP250,000
Intellectual Property (including GBP10,000
Business Information relating to
Intellectual Property)
Stock and Work in Progress The amount agreed or determined in
accordance with clause 10.
Plant, Machinery and Equipment as The written down book value
detailed on the attached list
(including systems hardware)
Purchased Contracts GBP10,000
Business Information (excluding the GBP10,000
Business Information relating to
Intellectual Property)
Cash book balance The amount agreed or determined in
accordance with clause 10.
SCHEDULE 3
FP ASSETS
Asset Apportionment of Consideration
Claims GBP1.
.
Goodwill The remainder of the Price
Intellectual Property (including the GBP100,000
Business Information relating to
Intellectual Property)
Stock and Work in Progress The amount agreed or determined in
accordance with clause 10.
Plant, Machinery and Equipment as The written down book value
detailed on the attached list
(including systems hardware)
Purchased Contracts GBP100,000.
Business Information (excluding GBP100,000.
Business Information relating to
Intellectual Property)
Cash book balance The amount agreed or determined in
accordance with clause 10.
SCHEDULE 4
PREMISES
Leasehold premises at Xxxxx 0, 0, 0 & 0, Xxxxxxxxxx Xxxx Xxxx, Xxxxxxx,
Xxxxxx and Lodge Field Road, Halesowen, West Midlands
SCHEDULE 5
INTELLECTUAL PROPERTY
1 Registered/Patents
Number Country Description Owner
0118208 EP Tie for walls and other structures X Xxxx
2154258 UK Wall tie device X Xxxx
2194263 UK Wall tie device X Xxxx and
X X Xxxx
0252696 EP Wall tie device X Xxxx and
X X Xxxx
2289905 UK Kit and method of forming an arch Furfix
Products
Limited
1604941 UK Wall tie device X Xxxx
2 Patent Applications
Number Country Description Owner
2316103 UK Two piece joist hanger Furfix
Products
Limited
9900583.7 UK Restraint strap X X Xxxx and
X Xxxx
3 Registered Trade Xxxx
Number Country Trade Xxxx Owner
2152177 UK FX Furfix Furfix
Products
Limited
1163850 UK Furfix Furfix
Products
Limited
4 Trade Xxxx Applications
Country Description Owner
UK East Arches Furfix
Products
Limited
UK Panther Furfix
Products
Limited
UK Ceejay Furfix
Products
Limited
UK Highload Furfix
Products
Limited
5 Third Party Software Licences
Scala
Opera V2.45
MS Office/Windows
Arcserve V6.6
UPS Parachute Software
Tracker V2
Easy Label
ParaCad (Xxxxx Design Software)
Wordperfect
Netware V3.11
MS Windows NT Client (20 users)
MS Terminal Server
MS Exchange Server Version 5.5
CITRIX Metaframe V1.0 (15 users)
Pervasive SQL (20 users)
MS Office 97 (20 users)
SCHEDULE 6
EQUIPMENT LEASES
Furfix Products Limited
Date of Third Payments
Agreement Party Asset per month Term
S943 CGJ 06/11/98 Lloyds Bowmaker Volkswagen Passat 1.9TDISE GBP502.20 3 Years
R353 MGO 26/03/98 Lloyds Bowmaker Volkswagen Passat 1.9TDIS GBP464.63 3 Years
P811 GHT 13/10/97 Lloyds Bowmaker Seat Toledo 1.9TDISXE GBP411.73 3 Years
R172 JGO 28/01/97 Lloyds Bowmaker Peugeot 406 1.8 LX GBP438.24 3 Years
R906 NGT 15/12/97 Lloyds Bowmaker Volkswagen Passat 1.9TDIS GBP441.72 3 Years
R907 NGT 15/12/97 Lloyds Bowmaker Volkswagen Passat 1.9TDIS GBP441.72 3 Years
R908 NGT 15/12/97 Lloyds Bowmaker Volkswagen Passat 1.9TDIS GBP447.88 3 Years
R197 GOK 01/12/97 Lloyds Bowmaker BMW 525TDSE GBP611.89 3 Years
R224 DGX 19/08/97 Lloyds Bowmaker Audi A6 1.9TDI GBP645.54 3 Years
R434 DGK 17/09/97 Lloyds Bowmaker Volkswagen Passat 1.9TDISE GBP493.88 3 Years
P718 WGH 13/06/97 Lloyds Bowmaker Volkswagen Passat 1.9TDISE GBP517.21 3 Years
SCHEDULE 7
LETTERS OF EMPLOYMENT
P Xxxx
K Xxxx
J Xxxxxx
G Xxxx
S Glossop
J Young
A Xxxxxx
C Xxxx
SCHEDULE 8
EMPLOYEES
Average
number
of
Length Contra- Other hours
Basic Date of ctual benefits Holiday worked
gross Start of service notice (Car/ enti- per Pension
Name Location Title salary date birth Age (years) period Bonus) tlement week Fund
---------- ---------- ------------ ------ -------- -------- ------- ------- -------- -------- ------- ------- -------
W Xxxxxxx Croydon Operative 12,171 4/9/89 29/10/69 29 9 1 month X/X/X/X 00 00.0 X/X
X Xxxxxxxxx Xxxxxxx Operative 12,063 18/5/87 2/3/50 49 12 1 month N/A/350 20 41.5 N/A
M Fish Croydon Packer 11,653 16/7/90 19/4/42 57 9 1 month N/A/350 20 41.5 N/X
X Xxxxxx Croydon Packer 10,790 15/4/99 28/1/48 51 0 1 month N/A/350 10 41.5 N/X
X Xxxxxx Croydon Packer 12,257 4/9/89 3/11/44 54 9 1 mont N/A/350 20 41.5 N/X
X Xxxxxx Croydon Packer 12,257 11/6/90 12/2/38 61 9 1 month N/A/350 20 41.5 N/X
X Xxxxx-
borough Croydon Operative 12,193 14/9/92 14/12/64 34 6 1 month N/A/700 20 41.5 N/X
X Xxxxxx Croydon Operative 12,279 5/11/84 3/7/66 33 14 1 month N/A/350 20 41.5 N/X
X Xxxxxxx Croydon Operative 11,977 27/2/95 24/5/68 31 4 1 month N/A/350 20 41.5 N/X
X Xxxxxx Croydon Operative 12,020 27/2/95 7/9/59 39 4 1 month N/A/350 20 41.5 N/A
J WinchesterCroydon Tool Maint 18,883 4/1/83 4/10/35 63 16 1 month N/A/N/A 20 41.5 N/A
T Dare Croydon Operative 12,409 30/11/92 19/11/41 57 6 1 month N/A/350 20 41.5 N/X
X Xxxxx Croydon Packer 11,869 5/1/98 29/1/43 56 1 1 month N/A/350 20 41.5 N/X
X Xxxxx Croydon Packer 11,783 8/7/96 12/7/46 53 3 1 month N/A/350 20 41.5 N/A
D Apps Croydon Operative 11,653 2/3/98 18/6/54 45 1 1 month N/A/350 20 41.5 N/X
X Xxxxx Croydon Operative 11,653 27/4/98 3/2/45 54 1 1 month N/A/350 20 41.5 N/X
X Xxxxxx Croydon Gen Maint 17,600 9/11/92 6/4/43 56 6 1 month N/A/N/A 20 N/A N/X
X Xxxxxxx Croydon Prd Spvsr 24,000 5/1/98 17/4/48 51 1 1 month N/A/N/A 20 N/A 1200
X Xxxxxx Croydon Tool setter 13,860 10/11/96 13/3/46 53 2 1 month N/A/N/A 20 N/A N/X
X Xxxx* Croydon Dir of Engnrg 32,750 17/4/89 2/12/46 52 10 6 months Yes/3275 20 N/A 2210
W Xxxxxx Croydon Driver/dsptch 12,257 27/2/95 1/7/65 34 4 1 month N/A/350 20 N/A N/X
X Xxxxxx Croydon Despatch 11,761 8/8/94 27/2/73 26 5 1 month N/A/350 20 N/A N/A
T Greenhead Croydon Despatch 11,998 22/4/98 25/8/66 33 1 1 month N/A/350 20 N/A N/X
X Xxxxxx Croydon Despatch 10,790 4/5/99 4/10/46 52 0 1 month N/A/350 15 N/A N/X
X Xxxxxx* Croydon Dir of Prod 35,000 13/9/93 26/3/48 51 5 3 months N/A/N/A 20 N/A 1750
J Xxxx Croydon Prod. Ctrl 16,500 16/7/96 1/3/64 35 3 1 month N/A/N/A 20 N/A N/X
X Xxxx* Remote Sales Dir 53,000 14/10/91 6/1/61 38 7 6 months Yes/10000 20 N/A 3710
L Step Croydon Sales admin 11,500 23/2/98 3/2/79 20 1 1 month N/A/N/A 00 X/X X/X
X Xxxxxx Xxxxxxx Xxx off mgr 20,500 8/5/91 22/8/67 32 8 1 month N/A/1000 20 N/A 1025
S Xxxxxx Croydon Sales admn 9,900 2/11/98 14/3/72 27 0 1 month N/A/N/A 20 N/A N/X
X Xxxxxx Croydon Sales admin 17,000 30/11/73 9/8/98 26 0 1 month N/A/N/A 20 N/A N/X
X Xxxxxx* Remote Snr sls admn 24,133 13/5/91 29/8/52 47 8 1 month Yes/3500 20 N/A 1207
R Inglis Remote Tch sls admn 26,750 13/5/91 26/10/57 41 8 1 month Yes/4000 20 N/A 1338
B Tyler* Remote Area sls mgr 19,961 2/6/97 17/8/60 38 2 1 month Yes/3500 20 N/A 998
L Seaward Remote Area sls mgr 18,870 26/1/98 3/10/72 26 1 1 month Yes/3500 20 N/A 944
I Urqhuart Remote NatBusDevmgr 32,000 1/9/98 11/2/52 47 0 1 month Yes/4000 20 N/A 1600
K Xxxxxxxx Remote Area sls mgr 18,500 2/11/98 4/1/57 42 0 1 month Yes/3500 20 N/A 925
P Xxxx* Remote Managing dir 70,000 26/8/85 30/7/61 38 14 1 month Yes/10000 Unlim N/A 0000
X Xxxxxxx* Xxxxxxx XX to MD/FD 22,000 14/5/96 10/7/56 43 3 1 month N/A/N/A 20 N/A N/X
X Xxxxxx Croydon Mgmt acctant 19,000 10/4/89 19/7/70 29 10 1 month X/X/X/X 00 X/X
X Xxxxxxxx Xxxxxxx Xxxxx assist 14,000 14/9/98 14/5/59 40 0 1 month N/A/N/A 20 N/A N/X
X Xxxxx Croydon Handyman 8,950 13/5/91 4/7/19 80 8 1 month N/A/N/A 20 N/A N/X
X Xxxxxx* Croydon Spec srvs mgr 27,250 1/6/92 21/11/47 51 7 1 month N/A/5000 20 N/A 1362
J Young* Croydon Dir, tech sls 31,000 1/11/93 11/11/46 52 5 1 month Yes/5000 20 N/A 1550
C Xxxx* Croydon Tech Dev mgr 26,500 20/10/97 10/08/55 44 1 1 month Yes/N/A 20 N/A 1325
A Xxxxxxx Croydon Tech srv admn 12,500 10/8/98 11/05/71 28 0 1 month N/A/N/A 10 N/A N/A
M Green Croydon Tech adviser 17,000 14/9/98 31/5/57 42 0 1 month N/A/N/A 00 X/X X/X
X Xxxxxxx Xxxxxxxxx Accnts assist 6,760 22/3/99 31/3/71 28 0 1 month X/X/X/X 00 00 X/X
X Xxxxx Xxxxxxxxx Cleaner 1,139 14/1/98 1/2/65 34 1 1 week N/A/N/A 6 N/A
A Hodgetts Halesowen Prod manager 17,000 15/6/87 13/5/55 44 12 3 months Yes/2000 20 N/A N/A
A Young Halesowen ToolSet/Fklft 17,000 4/1/99 9/1/65 34 0 1 month N/A/750 15 N/A N/X
X Xxxxxxxx Halesowen ToolSet/Fklft 13,000 4/10/93 8/5/46 53 5 1 month N/A/N/A 00 X/X X/X
X Xxxx Xxxxxxxxx Oper/packer 8,599 6/3/89 31/10/59 39 10 1 week N/A/N/A 20 39 N/X
X Xxxxxxxx Halesowen Oper/packer 8,518 28/4/92 5/9/74 24 7 1 week X/X/X/X 00 00 X/X
X Xxxxx Xxxxxxxxx Oper/packer 8,396 31/7/95 25/3/75 24 4 1 week X/X/X/X 00 00 X/X
X Xxxx Xxxxxxxxx Oper/packer 8,396 14/5/97 24/4/62 37 2 1 week X/X/X/X 00 00 X/X
X Xxxxx Xxxxxxxxx Oper/packer 8,396 4/6/97 7/1/75 24 2 1 week N/A/N/A 20 39 N/X
X Xxxxx Halesowen Oper/packer 8,396 27/5/98 31/3/80 19 1 1 week X/X/X/X 00 00 X/X
X Xxxxx Xxxxxxxxx Oper/packer 8,396 24/8/98 15/6/78 21 0 1 week X/X/X/X 00 00 X/X
X Xxxxxx Xxxxxxxxx Oper/packer 8,396 1/2/99 2/4/55 44 0 1 week N/A/N/A 15 39 N/X
X Xxxxx Croydon Fin Director 53,000 13/6/94 9/5/64 35 5 6 months Car/10000 20 40 3710pa
R Xxxxxxxx Halesowen Mngng Dir 22,000 27/3/97 3/4/39 60 14 1 month Yes/3,250 20 N/A N/A
* denotes those Employees executing a Letter of Employment.
SCHEDULE 9
COMPROMISE AGREEMENTS
X Xxxx
B Xxxx
L Xxxxx
X Xxxxx
SCHEDULE 10
PURCHASED CONTRACTS
PART 1
SALES REPRESENTATIVE/AGENCY/DISTRIBUTOR AGREEMENTS
Agreement dated 11 April 1995 between Caradon Catnic Limited and
Easy Arches Limited
Agreement between Furfix Products (Deutschland) GMBH (1) Furfix (2)
and Fa Wanit Universal GMBH & Co Beckhum (3)
PART 2
LICENCES OF INTELLECTUAL PROPERTY
Ceejay Licence
Scala as referred to in part 5 of Schedule 5
SCHEDULE 11
CONSOLIDATED ACTUAL PROFITS
Attach Schedule
SCHEDULE 12
RETAINED ASSETS
Statutory Books of each of the Sellers
Minute books relating to directors' and shareholders' meetings of each of
the Sellers
Bank Accounts of the Businesses
Debts
Motor Vehicles with registration numbers 900 XXX, 000 XXX, X000 XXX and
S217 CGU
Overhead Crane located at Croydon
Pension Scheme
FURFIX PRODUCTS LIMITED GBP
Mitsubishi Air Conditioning Units 3,225
Water Heaters 404
Telephone System 175
Roller Shutter Doors (3) 1,953
Alarm System 1,156
Fire Alarm Refit 140
Gas Heater Unit 4 131
Extension to Phone System 35
EASY ARCHES LIMITED
Gas Air Heater 990
SCHEDULE 13
CREDITORS
As attached
SCHEDULE 14
PERSONAL PENSIONS ARRANGEMENTS
As attached
SIGNED and delivered as a deed when
dated by EASY ARCHES LIMITED acting
by:
Director
Signature : /s/X. XXXXX
Name : X. XXXXX
Secretary
Signature : /s/X. XXXXX
Name : X. XXXXX
SIGNED and delivered as a deed when
dated by FURFIX PRODUCTS LIMITED acting
by
Director
Signature : /s/X. XXXX
Name : X. XXXX
Director/Secretary
Signature : /s/X. XXXX
Name : X. XXXX
SIGNED and delivered as a deed when
dated by ICON PLC acting by:
Director
Signature : /s/X. XXXX
Name : X. XXXX
Secretary
Signature : /s/X. XXXXX
Name : X. XXXXX
SIGNED as a deed, and delivered when
dated, by XXXXXXX STRONG-TIE
INTERNATIONAL INC acting by
A XXXXXXXX
A Xxxxxxxx as attorney
Signature : /s/XXXXXX XXXXXXXX
Name : XXXXXX XXXXXXXX
SIGNED as a deed, and delivered when
dated, by the trustees of the XXXXXX /s/X. XXXX
XXXX DISCRETIONARY SETTLEMENT in
the presence of:
Witness
Signature : /s/XXXXXXX XXXX
Name : XXXXXXX XXXX
Occupation : Solicitor
Address : Stonehams House
Croydon
Trustee : /s/X. XXXX
Signature : X. XXXX
Name :
Witness
Signature : /s/XXXXXXX XXXX
Name : XXXXXXX XXXX
Occupation :
Address :
SIGNED as a deed, and delivered when
dated, by the trustees of the XXXXX
XXXX INTEREST IN POSSESSION SETTLEMENT /s/X. XXXX
in favour of XXXX XXXX the presence of:
Witness
Signature : /s/XXXXXXX XXXX
Name : XXXXXXX XXXX
Occupation : As above
Address :
Trustee
Signature : /s/X. XXXX
Name : X. XXXX
Witness
Signature : /s/XXXXXXX XXXX
Name : XXXXXXX XXXX
Occupation : As above
Address :
SIGNED as a deed, and delivered when
dated, by the trustees of the XXXXX
XXXX INTEREST IN POSSESSION SETTLEMENT /s/X. XXXX
in favour of XXXXX XXXXX in the presence of:
Witness
Signature : /s/XXXXXXX XXXX
Name : XXXXXXX XXXX
Occupation : As above
Address :
Trustee
Signature : /s/X. XXXX
Name : X. XXXX
Witness
Signature : /s/XXXXXXX XXXX
Name : XXXXXXX XXXX
Occupation : As above
Address :
